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Cite as: [2003] QB 933, [2002] EWCA Civ 1102, [2003] Imm AR 163, [2002] INLR 383, [2002] 3 WLR 1783

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JISCBAILII_CASE_IMMIGRATION

		Neutral Citation Number: [2002] EWCA Civ 1102
		Case No: C/2001/2823 C/2002/0262

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
ADMINISTRATIVE OFFICE LIST
Mr Justice Stanley Burnton & Mr Justice Newman

Royal Courts of Justice
Strand,
London, WC2A 2LL

24th July 2002

B e f o r e :

LORD JUSTICE AULD
LORD JUSTICE SEDLEY
and
LORD JUSTICE ARDEN
____________________

Between:

	THE QUEEN ON THE APPLICATION OF KANAGASINGHAM KARIHARAN KANAGARATNAM KONESWARAN	Appellants
	- and -
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent
	SECRETARY OF STATE FOR THE HOME DEPARTMENT and –	Appellant
	THE QUEEN ON THE APPLICATION OF ASARATNAM KUMARAKURUPARAN	Respondent

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr Manjit Gill QC & Miss Shivani Jegarajah (instructed by M. K Sri & Co) for the Appellants
Mr Robin Tam & Miss Eleanor Grey (instructed by The Treasury Solicitor) for the Respondent
and
Mr Robin Tam & Miss Eleanor Grey (instructed by The Treasury Solicitor) for the Appellant
Mr Andrew Nicol QC & Mr Simon Cox (instructed by Van-Arkadie & Co) for the Respondents
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Lord Justice Auld :

Introduction

These appeals concern the construction of section 65 of the Immigration And Asylum Act 1999, which, from 2^nd October 2000, provided a new right of appeal on human rights grounds to those dissatisfied with immigration decisions, including refusals of asylum. The issue on these appeals, on which Stanley Burnton J in the claim of Kariharan and Koneswaran and Newman J in the claim of Kumarakuruparan have given conflicting rulings, is whether directions for removal of a person refused leave to enter or remain or of an illegal entrant are appealable under that provision. The question arises in these appeals in the context of directions for removal given after the commencement date of section 65 implementing decisions of refusal of leave to enter or that a person is an illegal entrant made before that date. In each of the appeals the issue is one of statutory construction. Nothing turns on the particular facts of the cases.

Section 65, in its original form was in the following terms:

. “(1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person’s entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision …

(2) … an authority acts in breach of a person’s human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.”

This new and free-standing right of appeal is part of the new appeals provisions of Part IV of the 1999 Act, replacing with modifications and bringing together previous appeals provisions in the Immigration Act 1971, the Asylum and Immigration Appeals Act 1993 and the Asylum and Immigration Act 1996. As with those earlier Acts, there were transitional arrangements to identify pending cases or appeals at the commencement date that would be governed by it and those that would continue to be governed by the old provisions.

Thus, the commencement order bringing into force the bulk of Part IV of the 1999 Act on 2^nd October 2000 ^[1] provided in Article 3(1)(a) and 4(2) that the new appeals provisions were not to have effect in relation to events, namely service of a notice, making a decision, giving a direction or issuing a certificate, which took place before 2^nd October 2000, to which the old appeal provisions would continue to apply. And paragraph 1(7) of Schedule 2 to the Order provided that human rights appeals under section 65 did not lie against a “decision” under the Immigration Acts taken before the commencement date, namely one relating to a person’s entitlement to enter or remain in the United Kingdom.

To mitigate possible hardship to claimants in the transitional period who, because of those provisions, might not be entitled to rely on section 65, the Secretary of State has adopted a discretionary policy of “generating” such rights of appeal in certain cases of a subsequent human rights allegation in cases originally finally determined before that date, a policy that Stanley Burnton J, in the claims of Kariharan and Koneswaran, has held to be rational and otherwise lawful. The policy does not apply where the human rights issue was fully considered at an earlier appeal or by the higher courts or where it is based solely on facts not accepted in such earlier proceedings. The Secretary of State has generated such a right of appeal for Kumarakuruparan, who nevertheless proceeds with this claim for judicial review with a view to seeking damages for his previous allegedly unlawful removal from this country. The Secretary of State has under consideration whether he should take similar action in the cases of Kariharan and Koneswaran. The existence of that policy, which, in any event, applies only to transitional cases, cannot affect the interpretation of section 65 and is no effective substitute for the protection that it provides.

The central question is the meaning and extent of the words in section 65(1), “any decision under the Immigration Acts relating to … [a] person’s entitlement to enter and remain in the United Kingdom”. It is clear that removal directions are a “decision” under the Immigration Acts. The question is whether they are a decision “relating to … [a claimant’s] entitlement to enter or remain”. Stanley Burnton J., in the cases of Kariharan and Koneswaran, who had been refused leave to enter and asylum, held that those words did not include removal directions. Newman J, shortly afterwards, in the case of Kumarakuruparan, an illegal entrant who had also unsuccessfully claimed asylum, held that they did, expressly disagreeing with Stanley Burnton J.

The meaning of a “decision relating to entitlement to enter or remain” in section 65 is conditioned by the general scheme of United Kingdom immigration control. First, although the scheme of control is based on three main features, the right of abode, leave to enter and leave to remain, the word “entitlement” in that expression is not confined to, or intended to provide in the main for, those who have a right of abode. In the context of those who have not, for whom it is intended mainly to provide, it must refer to a lesser entitlement, one derived from permission granted to settle under section 1(2), or leave to enter or remain granted under section 3(1), of the 1971 Act. So, a refusal of leave to enter or remain or a decision that a person is an illegal entrant is a decision relating to his entitlement to enter or remain here. So much was recognised by the Immigration Appeal Tribunal in its starred decision in Kehinde (10/TH/2668) of 19^th December 2001, paras. 5 to 7, holding appealable under section 65 the Secretary of State’s refusal to revoke a deportation order. Second, the precise status of the maker of the decision is immaterial for this purpose; see section 65(7), which provides that “an authority” for this purpose means the Secretary of State, an immigration officer or a person responsible for the grant or refusal of entry clearance. It is the nature of the decision that is critical.

The question is whether removal directions given pursuant to such a decision are also a decision relating to an entitlement to enter or remain. Mr. Robin Tam, for the Secretary of State maintained that they are not, being merely the nomination of a date for administrative enforcement of a decision relating to entitlement that has already been made. He submitted, therefore, that, as all such earlier decisions in these appeals had been made before the commencement date for section 65, they carried with them no right of appeal under that provision. Mr. Andrew Nicol, QC, for Kumarakuruparan, and Mr. Manjit Gill, QC, for Kariharan and Koneswaran, maintained that the post-commencement removal directions are decisions relating to entitlement to enter or remain, relying on their discretionary nature and their practical effect, if and when given, of depriving claimants of any such entitlement. Accordingly, they submitted, the three claimants are entitled to rely on the new provision.

Before turning to those competing arguments in more detail, I should mention two further features of the 1999 Act.

First, the clear policy of Part IV of the 1999 Act is that all possible reasons for allowing a person to remain in the United Kingdom should normally be considered on a single occasion by the Secretary of State and on appeal, in one set of proceedings. Section 65(3) permits a person appealing under any other right of appeal also to raise a human rights ground. The Act provides for the prevention of abusive, repetitive appeals of any sort by a “one-stop” procedure set out in sections 74 to 77 and by specific limitation in section 73 on further appeals. The latter empowers the Secretary of State, following final determination of any appeal under the Act and the subsequent giving of notice of appeal under section 65, to certify abusive, repetitive claims under that section, the effect of the certificate being to treat the appeal so far as relating to that claim as finally determined. The Secretary of State may so certify where, in his opinion: (1) the claim could reasonably have been, but was not, included in a “one-stop” statement under section 74 or in the original appeal; (2) one purpose of such a claim would be to delay the removal; and (3) there is no other legitimate purpose for the claim.

Second, with effect from 2^nd April 2001, the 1999 Act was amended by section 6 of the Race Relations (Amendment) Act 2000 so as to insert in section 65 as an additional or alternative ground of appeal that the decision-maker had racially discriminated against the claimant. That amendment, which was in force at the time of the removal directions in question, does not raise any issue on the facts. However, Mr. Nicol and Mr. Gill maintained that the amendment is an aid to construction, an argument to which I shall return.

The appeals

The chronology of decisions and events in all three claimants’ cases is such that, if the Secretary of State’s construction is correct, the transitional provisions exclude them from reliance on it.

Kariharan and Koneswaran had been refused leave to enter and had unsuccessfully exhausted their right to an asylum appeal before the commencement date, and removal directions were given after that date. Stanley Burnton J held that they had no right of appeal under section 65 because he considered that there is a difference in kind between decisions that declare, create or terminate a right to enter or remain or which affect such right and “administrative” decisions enforcing the departure of a person who has no such right:

“16. In my judgment, the key words of section 65 of the 1999 Act are ‘in relation to that person’s entitlement to enter or remain in the United Kingdom’. If section 65 were intended to apply to all decisions made under the Immigration Acts, those words would be surplusage. I have no doubt that they were intentionally and advisedly used. Their plain meaning would distinguish between decisions declaring, creating or terminating a right to enter or to remain, or affecting the terms of such a right, and administrative decisions, such as a decision to require a person who has no right to enter or to remain in this country to leave, and a decision to enforce that requirement. On this basis, one would expect the setting of removal directions not to be a decision ‘in relation to a person’s entitlement to enter or remain in the United Kingdom’, since it is predicated on the absence of any such entitlement. The setting of removal directions are, on this basis, the equivalent of the issue of a warrant of possession by a claimant who has obtained judgment for possession of premises: c.f. the decision of the Court of Appeal in St Brice v. London Borough of Southwark [2001] EWCA Civ 1138.

…

25 …. In my judgment the wording of section 65 of the 1999 Act and its correct interpretation are clear. A decision to issue removal directions, predicated on an absence of entitlement to enter or remain in the UK, is not a decision under the Immigration Acts relating to a person’s entitlement to enter or remain in the United Kingdom.”

I leave until later in the judgment my view as to the correctness of Stanley Burnton J’s general decision as to the inapplicability of section 65 to removal directions in refusal of leave to enter or remain cases. However, it may be convenient to comment here on two aspects of his reasoning.

The first is his suggestion that the key words in section 65 would be surplusage if the intention had been to apply it to “all decisions made under the Immigration Acts”. Clearly, the words used were not intended to have such a wide effect. They were intended to limit its application to decisions “relating to … [a person’s] entitlement to enter or remain”, that is: (1) to particular persons who claim their human rights are or are about to be infringed; and (2) to decisions “relating to” such entitlement. The latter includes, not only decisions directly determining entitlement but also a wider category of related decisions. Removal directions, depending on the particular form of immigration control under consideration, may fall within the first category, that is, as free-standing decisions determinative of entitlement. The question here is whether removal directions consequent on or flowing from an earlier decision are sufficiently close to qualify under the second category of related decisions, as distinct, say, from decisions with a looser connection, such as a refusal of accommodation for those temporarily admitted or released from detention under section 4 of the 1999 Act or to provide asylum support under section 95 of the Act.

My second comment concerns the Judge’s analogy of removal directions in immigration cases with the issue of a warrant for possession of premises. As Mr. Nicol and Mr. Gill submitted, it is not helpful to consider legislation from a wholly different field and, moreover, a provision that does not contain anything like the phrase in section 65 under consideration. There are, in any event, difficulties in drawing a parallel between an order of the court for possession and a decision of the immigration authorities or, for that matter, of an immigration adjudicator. The court, before making a possession order must consider whether “it is reasonable to make the order” (Housing Act 1985, section 84(1) and (2)), including now whether it would be disproportionate in human rights terms. But for section 65, an adjudicator when dealing with, say, an asylum claim that does not engage any relevant human rights grounds, would not have the same power. Moreover, under section 85(2) of the 1985 Act, the court may, at any time before execution of the possession order, stay or suspend or postpone it and, in doing so, may consider any human rights argument that the occupant may advance, an important fail-safe that the Secretary of State’s interpretation of section 65 would deny, as a matter of right, to immigrants facing removal directions.

Kumarakuruparan was an illegal entrant. Before 2^nd October 2000, the Secretary of State served two notices on him, the first notifying him of the Secretary of State’s conclusion that he was an illegal entrant and of the proposal to give directions for his removal, and the second notifying him of the refusal of asylum and of the giving of removal directions for a date and time to be notified. Both of those decisions, if given after 2^nd October 2000 would have been susceptible to challenge under section 65, but because they preceded it were precluded from doing so by the transitional provisions. However, it was not until after that date and the failure of Kumarakuruparan’s appeal against the refusal of asylum that an immigration officer notified him of the specific removal directions. Newman J found that he was entitled to appeal that third notice because the directions effectively determined his putative right to remain engaged by his allegation under the section that removal would infringe his human rights:

. “18. Having regard to the words ‘relating to”, the right of appeal must extend beyond a decision determinative of entitlement. Unless illegal entrants, other than those within section 10(8) […], are to be taken as having no human rights appeal, the subsection must be taken as contemplating a relevant decision being made in relation to them. It is not necessary for the purpose of this case to decide whether the first notice is capable of founding a right of appeal, but the arguments advanced against it appear to me to be inconsistent with the agreed canon of construction, namely that the provision should be given a broad interpretation. The first notice includes the words: “I propose to give directions for your removal ...' It is against the consequences of an illegal entrant’s removal with which both the Refugee Convention and the ECHR are concerned. The purpose of Section 65(1) is to confer protection against a person’s removal in circumstances in which that person’s human rights will be breached. If I am right I can see no need for a fine distinction being drawn between a proposal to give directions and a decision to give directions. Since the crystallisation and substance of the right to appeal under Section 65(1) depends upon an allegation that to remove would breach a person’s human rights, I see no reason why he should not be able to make the allegation as soon as he has reason to believe he is at risk of being removed. But there is no reason why he should be bound to do so. It follows, in my judgment, that he is not bound to do so at receipt of the first and second notice. He can await the third notice. Frequently there can be a substantial period of time before the third notice is issued. In human rights matters (family, change of circumstances in the country to which the person will be returned) the position can radically change within a short period.

19. In my judgment the argument on both sides paid too little attention to the sources of right or entitlement upon which an illegal entrant, like the claimant, can rely. Given that, if the claimant has a valid human rights claim not to be removed, he has an entitlement to stay, notwithstanding he is an illegal entrant, I am unable to see how the decision to remove him cannot be seen as denying the existence of his entitlement. To that extent it is capable of being regarded as determinative of the entitlement, subject to an allegation that the determination has breached his human rights. Once the allegation is made the claim must be determined on appeal. The issue of directions for removal appear to me to be capable of being regarded as part and parcel of the same decision or, if I am wrong, they are plainly a decision relating to that decision.”

The words of section 65

Counsel for all parties prefaced their detailed submissions with two sound propositions, which I adopt. First, section 65, concerned as it is with human rights, should be interpreted broadly. Second, so far as possible, the section should be construed to enable its practical operation within the overall scheme of the 1999 Act and the immigration legislation of which it is part.

There appeared at first to be a suggestion on behalf of the claimants that, in the case of illegal entrant cases, as distinct from refusal of leave to enter cases, there is no readily identifiable decision capable of amounting to a decision relating to entitlement to enter or remain, thus leaving removal directions in such cases as the only candidate for a section 65 decision (as may occur under section 10(8) of the 1999 Act in relation to overstayers and those who have gained leave to remain by deception). But on close examination of the competing arguments, this issue faded away. The new right of appeal will often – mostly – be associated with an appeal against refusal of a person’s claim for some dispensation from the normal consequences of refusal of leave to enter or remain or treatment as an illegal entrant, not against the legality of the initial refusal or decision. Typically it will be an appeal against refusal of a claim for asylum or for special consideration for some other reason. In many or most cases, therefore, there is little distinction in practice for this purpose between a refusal of leave to enter, usually readily identifiable, and that of a decision that an illegal entrant should not be given leave to remain.

Even without a claim for asylum or for some other dispensation, there comes a point at which the Secretary of State or an immigration officer, following the detection of an illegal entrant, properly decides to treat him as one and as part of that decision decides whether he is to stay or go. see Khawaja v. SSHD [1984] AC 74, per Lord Bridge at 118C and Lord Templeman at 127H; and R. v. SSHD , ex p. Uluyol and Cakmak [2001] INLR 194, per Gage J at paras. (41)- (43). In certain, but not all, illegal entrant cases there may be difficulties in identifying the actual decision, and its date, that a person is to be so treated. But where it is plain that such a decision has been made, it is clearly a decision “relating to” to his entitlement to remain whether or not followed by removal directions. As Mr Nicol and Mr. Gill conceded, this must be so even though the underlying decision can be “somewhat elusive” and in certain circumstances its date critical, as observed by Newman J in Kumarakuruparan. But in most cases the fact and date of the decision are readily identifiable. When an immigration officer determines that a person is an illegal entrant it is the practice for him to serve on the immigrant a notice to that effect. Where detection is at the port of entry this is typically served immediately or, where there is a claim to remain, when the Secretary of State, after considering the claim, grants leave to remain or issues removal directions. Such a decision, which is judicially reviewable, is the basis upon which removal directions may be given under paragraph 9(1) of Schedule 2 to the 1971 Act. However, it does not follow that, in this or other contexts of the legislation, removal directions may not also amount to section 65 decisions. As Mr. Tam acknowledged, removal directions under section 10 of the 1999 Act against those in breach of their conditions of limited leave to enter or remain or who have obtained leave to remain by deception “invalidate” any pre-existing leave to enter or remain; see section 10(8).

The question, therefore, is not, whether refusals of leave to enter or decisions that an illegal entrant is not given leave to remain are potentially challengeable under section 65, but whether, if and when removal directions are issued giving effect to such decisions, they too carry the same right of challenge. In short are such directions decisions “relating to … [a] person’s entitlement to enter or remain”? As Mr. Tam acknowledged, the presence of the words “relating to” in that formula indicates that it is not confined to a decision determinative of entitlement. However, he would only allow of its extension to a decision declaratory of entitlement or its lack, and maintained that such an interpretation could not include removal directions, which he described as an administrative means of giving effect to, but not in themselves, a section 65 decision. Thus, he suggested that in this context they have no life of their own; they depend upon the earlier decision as provided in paragraphs 8 and 9 of Schedule 2 to the 1971 Act, and are a merely a means, albeit discretionary, of implementing it.

Indeed, Mr. Tam prayed in aid and stressed the discretionary nature of removal directions, including the possibility of their cancellation, whether or not followed by new directions. None of such actions, he maintained, did away with the underlying decision giving rise to them. He submitted that, apart from the particular problems of transitional cases, there is no reason why any question should arise as to the status of removal directions, since the claimant cannot, by challenging them, unseat an earlier decision of disentitlement.

Mr. Nicol and Mr. Gill, on the other hand, stressed the breadth of the draftsman’s words in section 65 in the phrases “any decision under the Immigration Acts”, “relating to” and “entitlement to enter or remain”. Mr. Nicol, in particular, criticised Mr. Tam’s suggested gloss on section 65 so as to limit it to decisions determinative or declaratory of a person’s entitlement to enter or remain as an exercise in statutory re-drafting rather than interpretation. They submitted that any immigration decision to exclude a person that threatened his human rights is caught by the provision and that this necessarily includes removal directions, whatever prior decisions, including such directions, there may have been, unless certified by the Secretary of State as abusive under section 73. Thus, they supported the reasoning of Newman J. that the setting of removal directions is directly capable of infringing a person’s human rights by denying his entitlement to stay or, at the very least, is “related to” a denial of that entitlement. They prayed in aid the following reasoning of the Immigration Appeal Tribunal in Kehinde:

“7. An appeal on human rights grounds against removal or exclusion from the United Kingdom is, essentially, an appeal on the grounds that such removal or exclusion was or would be, for human rights reasons, unlawful. If a person’s removal or exclusion is unlawful, it follows that he has a right to remain or enter. Thus, as it appears to us, an appeal on human rights grounds against any decision which would cause the subject to be excluded or removed from the United Kingdom is indeed an appeal against a decision relating to that person’s entitlement to enter or remain in the United Kingdom. It follows that any person who is the subject of an immigration decision which, if carried out, would cause him to be excluded or removed from the United Kingdom may, in principle, appeal under section 65.”

See also the understanding and reasoning of the Immigration Appeal Tribunal in Pardeepan v. SSHD [2000] INLR 447, paras. 13 and 14.

In my view, and putting aside for the moment, the effect of the words “relating to” in section 65, there is force, in a human rights context, in interpreting the word “entitlement” in the phrase “entitlement to enter or remain” in a wider sense than it might otherwise have. As Newman J indicated in the passage in paragraph 19 of his judgment that I have set out, if a claimant has a valid human rights claim to stay when he makes it, he is entitled to do so whatever the status of the decision designed to remove him; he has a section 65 entitlement. Removal directions, whether free-standing or consequent upon some earlier refusal of leave, and whether regarded as a “substantive” decision or administrative machinery, are discretionary and, as such, are capable of being determinative of that entitlement, subject to a section 65 challenge. The section expressly provides that the claimant has only to “allege” violation of his human rights to entitle him to pursue it and, when read with section 66 (see below), in asylum and illegal entrant cases to remain here to do so. They are, in any event, as Newman J also said, a decision “relating to” such entitlement in the sense either of a threat to it or potentially causative of its loss, as the Immigration Appeal Tribunal appear to have reasoned in Kehinde.

The general scheme of immigration control

Both sides sought to support their respective constructions by reference to the general scheme of immigration control. Mr. Tam also maintained that his narrow construction is appropriately of a piece with the intention and effect of section 6 of the Human Rights Act 1998, requiring a public authority to act compatibly with the Convention, because that obligation applies only to decisions and actions taken on or after the same commencement date; see R v. Lambert [2001] UKHL 37, [2001] 3 WLR 206; R v. Kansal [2001] 3 WLR 1562; and Wainwright v. Home Office [2001] EWCA Civ 2062. And, he submitted, it fitted the general scheme of immigration legislation that for each “episode” concerning a person’s right to enter or stay in the United Kingdom there would, in general, be one right of appeal on human rights grounds, just as there would be if he makes a claim for asylum. His qualification of that proposition by the use of the word “general” was an acknowledgement that in deportation and in certain complex cases there is a potential for more than one appeal under section 65.

Mr. Nicol and Mr. Gill submitted that Mr. Tam’s narrow construction did not accord with the general scheme of immigration control, since the two-stage approach in refusal of leave to enter cases does not apply to illegal entrants who are overstayers or who have gained entry by deception, where the 1999 Act identifies only one stage, removal directions under section 10(1) of the 1999 Act. Nor does it apply to deportees where there are three stages, decision to deport, deportation order and removal directions, the last under paragraph 1 of Schedule 3 to the 1971 Act. Thus, they submitted, it is wrong to characterise removal directions as purely administrative. Not only are they not always consequential on some prior substantive decision, but even when they are, the Secretary of State has a discretion, not only as to the date, method and destination of removal, but also as to whether to make them at all.

Mr. Nicol and Mr. Gill submitted that the Secretary of State’s approach, if correct, would deprive overstayers and those who have gained entry by deception of a section 65 right of appeal, leaving them at the mercy of the Secretary of State’s discretion to generate an appealable decision. Such an approach, they said, does not sit readily with the 1999 Act’s express provision of a right of appeal under section 69(5) in asylum cases against removal directions to illegal entrants and those unlawfully here under section 10, and/or, under section 66 to illegal entrants and those unlawfully here under section 10 on the ground there was no power in law to give them. Equally, they submitted, the narrow construction does not fit section 66, which, inferentially in section 66(3), treats human rights appeals in the same way as asylum appeals for this purpose. It provides:

“This section does not entitle a person to appeal while he is in the United Kingdom unless he is appealing under section 65 or 69(3).”

In my view, Mr. Nicol’s and Mr. Gill’s submissions are well-founded. In particular, given the considerable overlap between asylum and human rights grounds, Parliament must have intended that both should be dealt with in the same way, where necessary on appeal from removal directions. The same applies to the one-stop provisions in sections 73 to 77, including section 77(2), which treats an appellant as also appealing

“on any grounds …which he may have for appealing against the refusal, variation decision or directions in question under any other provision of this Act”. [my italics]

I, therefore, agree with Newman J that the broader construction is more consistent with the scheme and purpose of the Act that all possible reasons for allowing a person to remain in the United Kingdom should normally be considered on a single occasion by the Secretary of State and on appeal, in one set of appeal proceedings.

In the circumstances, I do not consider it necessary to consider in any detail the contribution, if any, made to the construction of section 65 by its amendment to include a claim of racial discrimination. However, I should note that the scheme of the amendment is that an immigration adjudicator, rather than the county court, decides whether the claim of discrimination is made out, and if the adjudicator decides that it is, any further race relations issues as to remedies are then for the county court. As Mr. Nicol and Mr. Gill submitted, the effect of the Secretary of State’s narrow construction would be that any complaint of racial discrimination in the issue of removal directions would be decided exclusively by the county court, which Parliament in making the amendment cannot have intended.

As to the possibility of abuse resulting from the broader construction in the form of a series of last minute challenges to removal directions, as a matter of practicality a bare refusal of leave or a decision that a person is an illegal entrant rarely occasions or grounds a challenge under section 65 unless it is followed by a claim to remain which, after consideration by the Secretary of State, results in removal directions. The effective decision is usually the rejection of the claim, itself appealable, giving rise to those directions. But the frequent delays in the decision making processes in these cases may give rise to fresh circumstances affecting the discretionary decision whether, when and in what form, to issue removal directions, for example, as to family or health or changes in the country to which the person is to be returned. Such a decision, may be consequential in some, but, as I have said, not in all forms of immigration control and, to that extent “administrative”. But, it is clearly capable of a wider role in determining to what extent, if any, such earlier decision should be implemented and, for the reasons I have given, may be a decision relating to an entitlement to enter or remain. If and to the extent that such an interpretation is open to abuse by repetitive, last-minute claims, it seems to me that Parliament must be taken to have had that possible outcome in mind in including the anti-abuse and one-stop provisions in the 1999 Act to which I have referred. The fact that those provisions may not provide fool-proof protection against abuse and that judicial review, though available, may provide something less than a merits based appeal (R. (Daly) v. SSHD [2001] 2 AC 532, HL, per Lord Steyn at paras. 24-28), is no basis for a contrary construction given the importance of the human rights in play. In any event, as Newman J observed, the risk of abuse – certainly, as here, at the margins - has a doubtful presence in the process of statutory interpretation.

Accordingly, I would allow the appeals of Kariharan and Koneswaran against the order of Stanley Burnton J upholding the Secretary of State’s rejection of their human rights representations under section 65 and his setting removal directions without regard to them. And I would dismiss the appeal of the Secretary of State in the case of Kumarakuraparan against the order of Newman J declaring that the removal directions were a decision challengeable by appeal under section 65.

Lord Justice Sedley:

In my judgment, as in that of Lord Justice Auld, the appeal against the decision of Stanley Burnton J succeeds and the mirror-image appeal against the decision of Newman J fails.

The vocabulary of section 65(1) is simple and as general as it could be. A decision to remove somebody from the United Kingdom is as a matter of ordinary language a decision relating to that person’s entitlement to enter or remain in the United Kingdom. It is hard to think of a stronger relationship, since removal is possible only in the absence of any entitlement to enter or remain.

The Home Secretary therefore accepts that he has to establish a narrower meaning than the obvious one if he is to exclude the present applications for judicial review. He seeks to do so by limiting the relationship to a causative one, so that the provision in effect reads: “any decision…determining that person’s entitlement to enter or remain in the United Kingdom”. Mr Tam has expanded this in argument to add: “…or brings into operation any legal consequence of his not having that entitlement”. Either the latter is simply exegetic of the words Parliament has used, and so includes cases such as the present, or it is a further rewriting of the Act requiring even more cogent justification.

The argument for a limited reading of section 65(1) is essentially that a wider reading, albeit the natural one, opens the door to abusive repeat and last-minute appeals. It seems to me that there are two short answers to this.

First of all, Parliament in section 73 has made the provision it considers necessary and appropriate to guard against abusive appeals. It is not this court’s job to fill gaps perceived by one party to litigation in Parliament’s provision, especially when the mechanism is not to read the abuse provisions generously but to constrict the antecedent right to which they relate. In fact, as Mr Nicol has demonstrated, section 73 is pretty comprehensive when married up with sections 74 and 75 and with the One-Stop Procedure Regulations. Although I do not consider it determinative, the Secretary of State in reality has ample powers to dispose summarily of repetitive and abusive appeals.

Secondly, the narrow reading of section 65(1) for which the Secretary of State contends reduces it to almost nothing. It is practically impossible to construct a decision as to a person’s immigration status alone which engages his or her human rights. It would be otherwise if the decision that a person has no entitlement to enter or remain in the United Kingdom automatically resulted in their removal – Mr Tam’s formulation admits as much – but, crucially, it does not. The Secretary of State has to decide in every case whether or not removal should follow the finding that a person is not entitled to enter or remain in the United Kingdom. It is in relation precisely to this elective, not legally automatic, decision to remove that human rights issues almost always arise. It would be worse than odd – it would be Machiavellian – if Parliament in enacting section 65 had, despite the ostensibly generous wording, in reality created an almost empty right of appeal.

The Secretary of State seeks to meet this by reminding us that in practice, wherever he considers it merited, he will generate a right of appeal under section 65(1) by issuing a fresh decision on the applicant’s immigration status. This in my judgment does not make things better: it makes them worse. As Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 477, classically pointed out:

“to remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from rock to sand.”

Much the same is true of administrative discretion. The difference is, of course, that administrative discretion is subject to control by judicial review. But this only increases the anomaly inherent in the Home Secretary’s case. He accepts that, if his reading is adopted, judicial review of a decision to remove will lie on human rights grounds against both the Secretary of State and the immigration officer by virtue of sections 6 and 7 of the Human Rights Act 1998. What possible legislative policy could this represent? The one-stop policy?

I have said that the argument from potential abuse cannot get off the ground in the light of section 73. But it is necessary also to say that not every last-minute challenge to removal is an abuse. In open court we considered the situation of a prominent politician in whose home country a coup d’état occurs on the eve of his removal, arguably placing his life in jeopardy. Mr Tam reassures us that in such a case the Secretary of State would not need to receive a valid appeal or legal challenge: he would stay his hand anyway. I have no doubt that he would if he shared the fears of the individual concerned. But if he did not, the simple right to give notice of appeal under section 65(1) will not be there if Mr Tam is right. The individual’s only hope will be to have instant access to lawyers with the know-how and resources to alert the Queen’s Bench duty judge before the plane leaves. I do not accept a reading of the statute which lets people’s lives and safety dangle by such threads.

Lady Justice Arden:

I agree that the appeal of the Secretary of State in the case of Kumarakuraparan against the order of Newman J should be dismissed and that the appeal of the Secretary of State in the cases of Kariharan and Koneswaran against the order of Stanley Burnton J should be allowed.

Mr Robin Tam, in his able submissions for the Secretary of State, submits that, in respect of any one episode of contact between a person seeking to enter or remain in the United Kingdom and the immigration authorities, section 65(1) of the Immigration and Asylum Act 1999 confers only one right of appeal and that accordingly a right of appeal under that section does not arise each time a separate decision is made in respect of that person’s right to enter or remain in the United Kingdom or in respect of his removal. He submits that, in the case of a deportation order, it is the deportation order or the decision to deport or the refusal to revoke a deportation order which gives rise to the right of appeal under section 65(1). In the case of entrants overstaying their leave to enter or remain in the United Kingdom, it is issue of directions for removal which generates the right of appeal under section 65(1). In the case of an illegal entrant, it is the decision that he is an illegal entrant which generates the right of appeal under section 65(1) as this leads to a train of events whereby he can be removed and therefore “relates” to his entitlement to enter or remain. In the case of an illegal entrant who has obtained entry by deception, the effect of the decision that he is an illegal entrant is to terminate his right to enter or remain and accordingly the decision in his case is also one which “relates” to the right to enter or remain.

The Secretary of State’s argument is far-reaching, as can be seen from the meaning which Mr Tam places on the words “any decision ... relating to that person’s entitlement to enter or remain in the United Kingdom” in section 65(1). He submits that, in relation to decisions taken on or after a person’s arrival in the United Kingdom, a decision under the 1999 Act is one “relating to that person’s entitlement to enter or remain in the United Kingdom” if it is

“a) a decision which creates, refuses to create or terminates such an entitlement, or

b) a decision which declares either that he does, or does not, have such an entitlement, or that such an entitlement has ceased or is to cease, or that he is to be, or remain, prohibited from being granted such an entitlement.”

(Mr Tam excludes decisions taken before a person’s arrival in the United Kingdom on the grounds that they are not relevant to the argument.)

It can be seen from the formulation set out in the preceding paragraph that the Secretary of State’s interpretation of the words “relating to that person’s entitlement to enter or remain in the United Kingdom” requires a complex formula to be substituted.

In support of his argument, Mr Tam relies on the submissions already set out in the judgment of Auld LJ. In particular, he pointed out that section 65(1) uses the word “decision” and not the words “decision or direction”. Moreover, if some new fact emerges after the operative decision which (on his submission) gives rise to the right of appeal, the applicant can apply for judicial review under section 7 of the Human Rights Act 1998 on the ground that the decision violates his Convention rights. In addition, the Secretary of State has a policy whereby he will trigger a new right of appeal in those circumstances. As to the last point, in my judgment, that discretionary policy does not confer, and therefore cannot take the place of, a right of appeal.

Mr Tam further submits that the interpretation contended for by the Secretary of State is consistent with the “one stop” procedure in the 1999 Act. Moreover, on Mr Tam’s submission, the anti-abuse provisions in section 73 of the 1999 Act do not provide an answer. To prevent last minute appeals by a person being removed from the United Kingdom, section 73 could only work if the Secretary of State’s certificate under that section was issued on the steps of the aeroplane removing that person. Mr Tam submits that the process of certification “is not intended to operate on the tarmac at Heathrow". Until certification takes place, the Secretary of State would not, as a matter of practice, remove a person refused permission to enter or remain until the period in which he could appeal had expired.

The primary argument of Mr Andrew Nicol QC and Mr Manjit Gill QC is that the words “relating to” in section 65(1) are wide words and that the anti-abuse provisions in section 73 prevent the difficulties to which the Secretary of State refers. Furthermore, on their submission, there is no mandate in the wording of section 65(1) for restricting the right of appeal to a single “episode of contact”. Moreover, as Auld LJ points out in his judgment, there is likely to be a substantial delay between the decision that a person is an illegal entrant and his removal.

I agree with Sedley LJ that the argument of the Secretary of State cannot succeed on the plain wording of section 65(1). In my judgment, it is unnecessary to read section 65(1) in a broad manner, or to give “entitlement” any special meaning. The Secretary of State accepts that section 65(1) includes some decisions which are not decisions which create or refuse to create or terminate an entitlement to enter or remain: see paragraph (b) of Mr Tam’s formulation set out above. The decisions in paragraph (b) are therefore decisions which are connected with, and therefore relate to, a person’s entitlement to enter or remain in the United Kingdom. However, the Secretary of State does not accept that all such decisions are included. In my judgment, there is no basis on which this section can properly be read down in this way.

I was concerned in argument to see whether the Secretary of State’s interpretation of section 65 could be inferred from the scheme of the Act read as a whole. I agree with what Auld and Sedley LJJ have said about the scheme of the Act. It does not lead to the conclusion that section 65(1) should be read down in the way contended for by the Secretary of State.

For all these reasons I would make the order described above.

Order: Appeal allowed with the costs subject to detailed assessment if not agreed. Permission to appeal refused. (No. C/2001/2823)

Appeal dismissed with the costs subject to detailed assessment if not agreed permission to appeal refused. (NO. C/2002/0262)

(Order does not form part of the approved judgment)