IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
B e f o r e :
LORD JUSTICE LATHAM
MR JUSTICE LAWRENCE COLLINS
| BLEDAR ZEQAJ||Respondent|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Appellant |
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MISS C RECORD (instructed by Messrs Waterfords, London, E13) appeared on behalf of the Respondent
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"(i) a country or territory of which he is a national or citizen;
(ii) a country or territory in which he has obtained a passport or other document of identity; or
(iii) a country or territory in which he embarked for the United Kingdom; or
(iv) a country or territory to which there is reason to believe that he will be admitted."
"(1) This section applies if directions are given for a person's removal from the United Kingdom -
(a) on the ground that he is an illegal entrant;
(b) under section 10; or
(c) under special powers conferred by Schedule 2 to the 1971 Act in relation to members of the crew of a ship or aircraft or persons coming to the United Kingdom to join a ship or aircraft as a member of the crew.
(2) That person may appeal to an adjudicator against the directions on the ground that on the facts of his case there was in law no power to give them on the ground on which they were given."
Section 69, which relates to claims for asylum, provides by subsection (5):
"If directions are given as mentioned in section 66(1) for the removal of a person from the United Kingdom, he may appeal to an adjudicator on the ground that his removal in pursuance of the directions would be contrary to the Convention."
The respondent appealed under section 69(5). The significance of the error in identifying Albania in the removal directions does not appear to have been appreciated at any time by anyone acting on the respondent's behalf. The appeal was based fairly and squarely on the argument that to return him would amount to a breach of the Geneva Convention in relation to asylum seekers and that he had a well-founded fear of persecution for Convention reasons or, alternatively, that it would be a breach of his rights under the European Convention on Human Rights.
"6. Therefore, these removal directions are not in accordance with the powers of the Immigration Officer who gave them, and are consequently invalid.
7. This appeal was made under the provisions of s.69(5) of the Immigration and Asylum Act 1999 which only applies when directions have been given for an appellant's removal as, inter alia, an illegal entrant. In this case, there are no such valid removal directions, and therefore there cannot be a valid appeal.
8. The appeal is dismissed."
"10. In our judgment, that is too restrictive a construction of s.66(2). It enables an appeal to be brought on any ground which is appropriate to an individual case that there was on the facts in law no power to give the directions. So here, the appropriate ground is that there is on the facts of this case no power to direct removal to Albania. It does no violence to the language to s.66(2) to construe it in this way, particularly as any appeal, as the use of the words 'on the facts of the case' recognises, will depend on its particular facts and those facts may disclose a particular legal impediment to the directions which have been given. Albania was specified because the appellant was an illegal entrant and it was lawful to remove him to Albania. If either of those matters was shown to be wrong, there would be in law no power to give the directions on the grounds on which they were given. We accordingly suggested to Miss Record that she might seek leave to amend the grounds of appeal to rely on s.66(2). Mr Deller very properly did not seek to say that the Secretary of State was prejudiced by this amendment (it was, after all, his officials' incompetence which had created the difficulty) and so did not resist the application made by Miss Record, prompted by our suggestion. We gave leave accordingly.
11. It is clear that there is in law no power to remove this appellant to Albania since it is accepted that an error was made and the Secretary of State cannot establish that on the facts of this case Albania falls within paragraph 8(1)(c) of Schedule 2 to the Immigration Act 1971. That being so, the appeal under s.66(2) must be allowed. That means that the directions are quashed and so the appeal under s.69(5) disappears. If fresh removal directions are made, fresh rights of appeal will arise."