England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Thursday, 11th January 2002

Thursday, 11th July 2002

1. LORD JUSTICE POTTER: Lord Justice Judge will give the first judgment.
2. LORD JUSTICE JUDGE: This is an appeal by the Secretary of State against the decision of the Immigration Appeal Tribunal, dated 5th November 2001, allowing the applicant's appeal against the decision of the Special Adjudicator, dated 12th June. Leave to appeal to this court was sought and granted on the basis that the Immigration Appeal Tribunal had purported to determine an appeal which was not before it. That indeed is what it appears to have done. It is agreed on both sides that the case should be returned to the Immigration Appeal Tribunal for reconsideration. I shall therefore deal with the issues as briefly as possible.
3. The applicant, Samuel Habte, was born on 7th February 1981. He arrived in the United Kingdom on 11th September 1998. He was refused leave to enter. He immediately sought asylum. As a juvenile he was not interviewed, instead, he completed a self-completion questionnaire dated 7th October. In it he stated that he had been born and brought up and educated in Addis Ababa in Ethiopia, and that his parents were Eritreans who had lived in Addis Ababa for many years before his birth. He described his current nationality as stateless, and his previous nationality was said to be Ethiopian. Conflict broke out between Ethiopia and Eritrea. According to the application, when the applicant came home one day in July 1998 he was informed by neighbours that his parents had been arrested by the Ethiopian authorities. He immediately went into hiding and he has not heard about or from his parents since. A close friend of his father arranged a passport for him together with a flight out of Ethiopia. Both the passport and the ticket were in his name. He said he had left because he feared that as an Eritrean he would be arrested and imprisoned or tortured if he continued to live in Ethiopia.
4. It subsequently emerged at the hearing before the adjudicator - and it is convenient to notice it now - that he had never personally been to Eritrea at all. He knew no one who lived there and although he had no fear of being ill-treated in Eritrea, he said that he would not be permitted to enter and make his home because he was a national of Ethiopia. Hence the claim that he was stateless. Nationality will have to be resolved in due course.
5. On 15th January 2001 the applicant received a letter explaining the reasons for refusal of the application for asylum. It is unnecessary to read out the whole letter. The relevant passage read:

"The basis of your claim for asylum is that you were persecuted on the basis of your Eritrean nationality. You stated that you were born and brought up in Ethiopia, and that your parents were Eritrean."

6. The letter then goes on to explain the circumstances:

"The Secretary of State accepts that some Eritreans living in Ethiopia have been detained and deported. He does not accept that this is solely due to their Eritrean nationality and therefore does not engage the United Kingdom's obligations under the terms of the 1951 United Nations Convention..."

7. The letter ends by inviting the applicant to state any reasons not previously disclosed to justify him staying in the United Kingdom.
8. On 12th February the applicant was given notice of refusal of leave to enter the United Kingdom following refusal of asylum, and of consequent removal directions to Eritrea. He was reminded of his right to appeal under section 69(1) of the Immigration and Asylum Act 1999.
9. On 2nd March the applicant responded, relying on the grounds given in his original questionnaire in October 1998 and asserting that he had suffered degrading ill-treatment, harassment and harm by the Ethiopian authorities, adding:

"Should I therefore be required to return to Ethiopia or Eritrea, my rights as enshrined in the European Convention of Human Rights and Fundamental Rights Article 3."

10. That is how the letter reads. Something has obviously been omitted. So in effect he was appealing against the decision of the Secretary of State refusing asylum, on the basis of section 69 that he had a well-founded fear of persecution in Eritrea and Ethiopia. He also was referring to section 65 of the 1999 Act, which it is convenient to summarise as his human rights. He did not and could not appeal under section 66. That is concerned with directions for removal. The applicant, however, was not an illegal entrant. He did not fall within the statutory criteria in section 66, and in relation to the removal directions his appeal fell to be decided under section 69.
11. In his determination promulgated on 12th June 2000 the crucial fact found by the special adjudicator was that the applicant was not of Eritrean origin, but Ethiopian. He said:

"33. I am not satisfied to the appropriate standard of proof that this appellant is of Eritrean ethnicity. Consequently his fear of returning to Ethiopia at present is not well-founded.

34. However, even if I did accept (which I do not) that the appellant is of Eritrean ethnicity and that regardless of the cessation of hostilities between Ethiopia and Eritrea the appellant is unable to return to Ethiopia, I am not satisfied that the appellant has demonstrated that the Eritrean authorities will not grant him Eritrean nationality. By his own account both his mother and father are originally from Eritrea. They are therefore both born in Eritrea. According to the Eritrean Nationality Proclamation No.20/1992 this would make the appellant an Eritrean national...

34. There is no evidence from the appellant to show that he has made any attempt to enquire whether he would be entitled to Eritrean nationality or whether he would be accepted in Eritrea. His evidence is simply that he does not think that he will be granted Eritrean nationality."

12. The special adjudicator concluded that the applicant had failed to establish either, therefore, Eritrean ethnicity, or that he was stateless, or that he had a well-founded fear or was at risk of persecution either in Ethiopia or, if returned to Eritrea, in accordance with the original removal directions.
13. It is unnecessary for the purposes of the present judgment either to read out or to summarise the whole of the adjudication, but I particularly draw attention as the matter will be returning to the Immigration Appeal Tribunal, to paragraphs 43 to 45.
14. On 14th July leave to appeal to the Immigration Appeal Tribunal was granted. On 8th October the Immigration Appeal Tribunal allowed the appeal. Although it described it as an initial issue, the decision of the Immigration Appeal Tribunal was confined to the removal directions which were held to be unsustainable:

"On the basis of the findings of the Adjudicator that the appellant did not have Eritrean nationality/ethnicity but was Ethiopian, the directions of the Secretary of State cannot stand."

15. The decision was plainly made under section 66(2) of the 1999 Act. The relevant part of the decision refers to, indeed effectively quotes, the subsection.

"The removal directions of the respondent are unlawful as based on the findings of the adjudicator. There was no power in law to make them. On this basis the appeal is allowed. The appellant has an asylum appeal but also an appeal under section 66 of the 1999 Act against the removal directions."

16. It appears to have been accepted in argument before us by Mr Benedict on behalf of the applicant, that this was not the section under which his client's case fell to be decided. Mr Benedict thoughtfully suggested that the text may have been subject to a simple typing error and that for section 66 one should simply read section 69. But in view of the words actually used in the determination that cannot be right. Therefore, instead of considering the issues arising under section 69(1), which the applicant was entitled to advance, the Immigration Appeal Tribunal decided the appeal on the basis of section 66(2) which had no application to his case. In those circumstances I agree with the contention on behalf of the Secretary of State that the Immigration Appeal Tribunal purported to determine an appeal that was not before it.
17. The practical, as opposed to the jurisdictional problem, of applying section 66 rather than section 69 in the present case, is that it provides no solution for anyone. Currently, the decision of the special adjudicator on the asylum issues still stands. The applicant is still seeking to impugn that decision. The order made by the Immigration Appeal Tribunal will not advance his case nor lead to a final decision on the asylum issues, which it would be in everyone's interests to resolve, and the sooner the better. It may indeed lead the Secretary of State to give removal directions to Ethiopia, the country in which on any view the applicant obtained his passport and from which he embarked for the United Kingdom, and which, if his claim of a well-founded fear of persecution is justified, would hardly be an attractive alternative to him.
18. I deliberately omit reference to the applicant's country of nationality or citizenship, which has yet to be and must in due course be authoritatively decided, but if the Secretary of State gave such directions then the entire process would start again, and eventually the Immigration Appeal Tribunal might find itself required to decide the issues which were left unresolved at the hearing currently under consideration. The question of the applicant's nationality, and whether he is truly to be described as a refugee or not, is inextricably linked with any removal directions which the Secretary of State may have given. It is unnecessary to consider whether the resetting of removal directions if the applicant's remaining applications were unsuccessful, and assuming the question arose at all, would itself give rise to an appeal. That issue is shortly to be decided in this court.
19. It is clear that any court is entitled to decline to decide points which do not arise for decision and usually there is much to be said for doing so. In the present case, however, it was not open to the Immigration Appeal Tribunal to decide the issue of the removal directions as an issue arising under section 66(2) when it did not and, as it seems to me, it would normally be inappropriate for removal directions in cases involving consideration of section 69 to be decided as a discrete issue, distinct and separate from any unresolved questions relating to asylum and human rights.
20. I would allow this appeal and order a complete rehearing of all the issues before a differently constituted Immigration Appeal Tribunal.
21. LORD JUSTICE POTTER: I agree.
22. SIR MURRAY STUART-SMITH:I also agree.
(Appeal allowed; no order as to costs).