Case No: C/2000/3650
Case No: C/2001/1099
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SPECIAL ADJUDICATOR
IMMIGRATION APPEALS TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SCHIEMANN
LORD JUSTICE CLARKE
| SAAD, DIRIYE AND OSORIO
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Rick Scannell and Ronan Toal (instructed by Glazer Delmar) for the Second Appellant
Raza Husain (instructed by Luqmani Thompson & Partners) for the Third Appellant
Ashley Underwood QC (instructed by Treasury Solicitor) for the Respondent
Crown Copyright ©
Lord Phillips MR :
This is the judgment of the court to which each of its members has contributed.
"1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order."
"1. No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."
"Non-refoulement constitutes part only of the benefits attaching to refugee status and, as indicated, the part presently least important to these applicants who cannot be removed anyway. Their concern rather is not to remain here in limbo - without benefits, without security, unable to travel, unable to bring in their families - but instead to enjoy the specific advantages to which refugees are entitled under both international and domestic law."
Access to Convention Rights
"A serious obstacle in practice to the issue of Convention travel documents can result from the absence within a State's administration of any procedure for consideration and determination of refugee status. Even where such procedures do exist they may be limited to consideration of refugee status in the context of asylum, that is, at the point at which questions of admission, residence and expulsion arise. The refugee admitted under a resettlement programme, or allowed to remain otherwise than by reference to his or her refugee status (for example, as a student or business person, or by reason of marriage to a local citizen) may be unable, quite simply, to invoke such status and thereby to secure treatment in accordance with the Convention. The standard of reasonably efficient and efficacious implementation suggests that some sort of procedure is required, if States are to meet their obligations under provisions such as article 28."
"Nothing in the Immigration Rules ... shall lay down any practice which would be contrary to the Convention."
"It is a principle of legal policy that the municipal law should conform to public international law. The court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle."
The Definition of a Refugee
" a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country .".
This Convention shall cease to apply to any person falling under the terms of Section A if:
(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or
(2) Having lost his nationality, he has voluntarily re-acquired it, or
(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or
(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or
(5) He can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality; "
The Secretary of State : The Primary Decision Maker
"Whether a state takes steps to protect refugees within its jurisdiction and if so which steps, are matters very much within the realm of sovereign discretion. For States parties to the Convention however the outer limits of that discretion are confined by the principle of effectiveness of obligations, and the measures it (sic) adopts will be judged by the international standard of reasonable efficacy and efficient implementation. Legislative incorporation may not itself be expressly called for, but effective implementation requires, at least some form of procedure which can be identified, and some measure of protection against laws of general application governing admission, residence and removal." Goodwin-Gill op cit p 324.
An Appellate System : No Requirement under the Convention
The Application for Leave to Enter or Remain
"3 (1) Except as otherwise provided by or under this Act, where a person is not a British citizen
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;
(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances.
(3) In the case of a limited leave to enter or remain in the United Kingdom,
(a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions "
327 an asylum applicant is a person who claims that it would be contrary to the UK's obligations under the Convention for him to be removed from or required to leave the UK.
328 All asylum applications will be determined by the Secretary of State in accordance with the UK's obligations under the Convention.
329 Until an asylum application has been determined by the Secretary of State no action will be taken to require the departure of the asylum applicant or his dependants from the United Kingdom.
330 If the Secretary of State decides to grant asylum and the person has not yet been given leave to enter, the Immigration Officer will grant limited leave to enter.
334 An asylum applicant will be granted asylum in the UK if the Secretary of State is satisfied that
(i) he is in the UK
(ii) he is a refugee as defined by the Convention; and
(iii) refusing his asylum application would result in his being required to go (whether immediately or after the time limited by an existing leave to enter or remain) in breach of the Convention to a country in which his life or freedom would be threatened [for a Convention reason].
335 If the Secretary of State decides to grant asylum to a person who has been given leave to enter (whether or not the leave has expired) or to a person who has entered without leave, the Secretary of State will vary the existing leave or grant limited leave to remain.
336 An application which does not meet the criteria set out in paragraph 334 will be refused.
The Right of Appeal
"13(1) a person who is refused leave to enter the United Kingdom under this Act may appeal to an adjudicator against the refusal.
14(1) a person who has limited leave under this Act to enter or remain in the United Kingdom may appeal to an adjudicator against any variation of that leave (whether as regards duration or conditions), or against any refusal to vary it;
19(1) an adjudicator -
(a) shall allow the appeal if he considers
(i) that the decision or action against which the appeal is brought was not in accordance with the law or with any of the immigration rules applicable to the case; or
(b) in any other case shall dismiss the appeal.
(2) For the purposes of subsection (1)(a) above, the adjudicator may review any determination of a question of fact on which the decision was based
(3) Where an appeal is allowed, the adjudicator shall give such directions for giving effect to the determination as the adjudicator thinks requisite ; and it shall be the duty of the Secretary of State and of any officer to whom directions are given under this subsection to comply with them.
20 any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal, and the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator."
The 1993 Act provides:-
"8(1) A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against that refusal to a special adjudicator on the grounds that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention
(2) A person who has limited leave to enter or remain in the United Kingdom may appeal to a special adjudicator against any variation of, or refusal to vary, the leave on the ground that it would be contrary to the United Kingdom's obligations under the Convention for him to be required to leave the United Kingdom after the time limited by the leave.
(3) Where the Secretary of State
(a) has decided to make a deportation order against a person , or
(b) has refused to revoke a deportation order made against a person ...
the person may appeal to a special adjudicator against the decision or refusal on the ground that his removal would be contrary to the United Kingdom's obligations under the Convention; ...
(4) Where [certain directions for removal] are given the person may appeal to a special adjudicator against the directions on the ground that his removal in pursuance of the directions would be contrary to the United Kingdom's obligations under the Convention.
(6) Schedule 2 to this Act shall have effect; and the preceding provisions of this section shall have effect subject to that Schedule."
Schedule 2 of the 1993 Act provides:-
"1. No appeal may be brought under Part II of the 1971 Act on any of the grounds mentioned in subsections (1) to (4) of section 8 of this Act.
2. A person may not bring an appeal on any of the grounds mentioned in subsections (1) to (4) of section 8 of this Act unless, before the time of refusal, variation, decision or directions (as the case may be) he has made a claim for asylum
3. Where an appeal is brought by a person on any of the grounds mentioned in subsections (1) to (4) of section 8 of this Act, the special adjudicator shall in the same proceedings deal with [all appeals under Part II of the 1971 Act].
4.(1) the provisions in the 1971 Act specified in sub-paragraph (2) below shall have effect as if section 8 were contained in Part II of that Act.
(2) The provisions referred to in subparagraph (1) are
(b) section 19 "
"a claim made by a person that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from or required to leave, the United Kingdom".
There are various provisions in the 1971 Act and the 1993 Act which prevent removal of persons during the appeal process.
i) a decision to refuse leave to enter;
ii) a decision to vary, or to refuse to vary, limited leave to enter or remain;
iii) a decision to make a deportation order or to refuse to revoke a deportation order; and
iv) a direction for removal.
Mr Osorio's appeal
"the decision to make a deportation order is not simply a condition precedent to an appeal. It is that decision which is the subject matter of the appeal, and if it has been withdrawn or quashed there is nothing left to argue about".
This court held that in consequence the IAT was right to hold that in those circumstances the appeal must be dismissed.
"In the context of this case the grant of ELR it would have been necessary for the special adjudicator of the Immigration Appeal Tribunal to consider the effect of the grant on the pre-existing decision. It may well be that the grant of ELR for a short period could properly be regarded as leaving the decision to deport unimpaired, and thus capable of being challenged in an appeal pursuant to section 8(3), but that is not this case."
It may be said to be implicit in that passage that the court considered that an appeal should only lie where the risk of refoulement was fairly imminent. These appeals raise the question of whether that conclusion is correct.
"I have reached the conclusion that in asylum cases the appellate structure as applied by the 1993 Act is to be regarded as an extension of the decision-making process. I am, I think, entitled to reach that conclusion as a matter of construction on the basis that the prospective nature of the question posed by section 8 of the 1993 Act overrides the retrospective approach ordinarily required (implicitly) on a section 19 appeal. Section 8, after all, could, but does not, identify the ground of appeal as being that the appellant's removal "would have been" (rather than "would be") contrary to the United Kingdom's Convention obligations. Moreover, section 8(1) refers to a particular class of appeals and section 19 to appeals in general. It would be a strong thing to say that the general was to over-ride the particular."
"All asylum appeals are hypothetical. They are all concerned with the removal that has not in fact taken place. This is recognised by the wording of s 69(1)-(4) which in each case refer to a removal that the Appellant claims "would be " contrary to the Convention. It is to be noted that the statute does not say "will be". Although that is not this case, "would be" includes the situation where no removal is in fact contemplated."
"The sentence I would particularly emphasise there is 'Proof that the circumstances of the persecution have ceased to exist would fall upon the receiving state'. It is true that because of the notoriously long delays which attend our system of asylum hearings the appellant here was never granted refugee status, even though until the change of government in Azad Kashmir in 1996 it is now assumed on all sides that he was strictly entitled to it. It nevertheless seems to me that by analogy, on the particular facts of this case, there is now an evidential burden on the Secretary of State to establish that this appellant could safely be returned home."
Mr Saad's Appeal
Mr Diriye's Appeal
" the appellant when appealing under section 8(2) needs to establish that, if he is required to go at the end of his leave, such removal would put this country in breach of its Convention obligations. In a changing world I do not consider that the appellant can demonstrate that he will be persecuted if returned in 2002."
On 11th October 2000 the IAT dismissed a further appeal on the same basis.
i) The United Kingdom is a party to the Convention and is thus bound to afford Convention rights to anyone who is a refugee within the meaning of Article 1A. It follows that, where the Secretary of State denies a refugee his Convention rights, the United Kingdom is in breach of its international obligations.
ii) Those Convention rights are extensive: see eg Articles 24, 28, 29, 32 and 33. See also, for example, per Simon Brown LJ in Adan v Home Secretary  1 WLR 1107 at 1113 and at 1116 (quoted above).
iii) When the Secretary of State gives a non-refugee (or person he has decided is not a refugee) limited leave to remain, that person does not have the benefit of those Convention rights. It follows that refugee status provides the refugee with significant rights when compared with a person denied such status.
iv) It is to be inferred that the United Kingdom does not intend to act in breach of its international obligations, especially since (as already indicated) Lord Keith said in this context in R v Home Secretary ex parte Sivakumaran  AC 958 at 990 that the provisions of the Convention "have for all practical purposes been incorporated into United Kingdom law".
v) In these circumstances the 1993 Act should be construed, so far as possible, on the basis that the United Kingdom intended to comply with its international obligations under the Convention and thus to ensure that those who are refugees within the meaning of Article 1A are entitled to enjoy their Convention rights.
vi) Having created a right of appeal specifically directed to this country's Convention obligations, it would be paradoxical to exclude appeals relating to refugee status.
vii) Refugee status will necessarily be in issue when an appeal is brought under section 8 in circumstances where there is apprehension of refoulement. It would be both illogical and impractical to require challenges of decisions as to refugee status to be brought by judicial review where refoulement is not apprehended.