England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
(MR JUSTICE STANLEY BURNTON)

		Royal Courts of Justice Strand London WC2A 2LL Monday 15 April 2002

1. LORD JUSTICE JONATHAN PARKER: Lord Justice Dyson will give the first judgment.
2. LORD JUSTICE DYSON: The claimants, who seek permission to appeal, are Tamils from Sri Lanka. Each of them sought asylum in this country. Their claims were rejected by the Secretary of State, and their appeals from his decision to a special adjudicator were dismissed. By 2 October 2000 they had exhausted their rights of appeal. They contend that their removal from the United Kingdom would violate their rights under the European Convention on Human Rights.
3. The Secretary of State set removal directions, in each case after 2 October 2000. Each of the claimants sought a declaration that he had a right of appeal under section 65(1) of the Immigration and Asylum Act 1999 ("the 1999 Act") from the Secretary of State's decision to issue directions for his removal to Sri Lanka, and an order quashing part of the policy of the Secretary of State announced to Parliament on 19 July 2001 to which I shall refer.
4. The judge had to decide three issues. He reached a decision adverse to the claimants in each case. The first concerned the true construction of the words "in relation to that person's entitlement to enter or remain in the United Kingdom" in section 65 of the 1999 Act in the context of paragraph 1(7) of schedule 2 of the Immigration and Asylum Act 1999 (Commencement No 6, Transitional and Consequential Provisions) Order ("the order").
5. I granted permission to appeal in relation to this issue on the papers but I refused permission to appeal in relation to the second and third issues. Mr Gill QC renews the application upon behalf of Mr Kariharan and Mr Koneswaran, but not Mr Pabeendran, and in relation to the second issue only.
6. In order to understand this issue it is necessary to refer to the relevant statutory provisions. Section 65(1) and (2) of the 1999 Act provides:

"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) For the purposes of this Part ....

(b) 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."

7. The transitional provisions relating to section 65 are contained in Article 3 of the order, which, so far as material, is in these terms:

"(1) Subject to schedule 2

(a) the new appeals provisions are not to have effect in relation to events which took place before the 2nd October 2000 and notwithstanding their repeal by the provisions of the 1999 Act commenced by this Order, the old appeals provisions are to continue to have effect in relation to these events...."

8. "The new appeals provisions" include section 65 of the 1999 Act (see Article 4(1)(a) of the order). Article 4(2) is in these terms:

"For the purposes of Article 3, an event takes place when -

(a) a notice is served;

(b) a decision is made or taken;

(c) directions are given; and

(d) a certificate is issued."

9. Paragraph (1)(7) of the Schedule 2 provides:

"Section 65 (human rights appeals) is not to have effect where the decision under the Immigration Acts was taken before 2nd October 2000."

10. The Secretary of State relaxed the effect of these transitional provisions by a policy of generating appeals in certain pre-2 October 2000 cases. The policy material for present purposes was announced to Parliament on 19 July 2001 when the Secretary of State said:

"On 20 March in another place my noble friend, Lord Bassam, in reply to a question from Lord Lester of Herne Hill, clarified the position of asylum seekers who wished to make a human rights claim under section 65 of the Immigration and Asylum Act 1999. He confirmed that people appealing against immigration decisions made before 2 October 2000 cannot benefit from this appeal right which is not retrospective. But they could make a separate human rights claim and would have the opportunity to appeal except in those instances where the human rights issue had already been considered by the appellate authority or the courts, or there had been findings of fact at an earlier appeal which mean the human rights claim is bound to fail.

However, it has been decided that the exception should not apply to people who had an appeal pending or could have lodged appeals in time to the immigration appeals authority on 2 October 2000. If they make a human rights claim and it is rejected they will be able to make an allegation and we will then give them an opportunity to appeal to the immigration appeals authority."

11. Where the Secretary of State's policy is to permit a human rights appeal, that is achieved through the mechanism of generating a new decision relating to person's entitlement to enter or remain in the United Kingdom. The effect of the relaxation of the legislation was to discriminate between those who appeals had been finally determined before 2 October and those whose appeals had not been so determined, if the matters raised in their human rights appeals added nothing to the matters determined in those appeals.
12. Mr Gill submits that this policy is irrational. He submits that, given that the Secretary of State thought it right to adopt a policy to allow persons who had pending appeals as of 2 October to raise human rights issues and to appeal under section 65 against an adverse decision, there was no sensible basis for saying that others who had no pending appeal as at that date could not also raise human rights issues and appeal under section 65. He submits that the distinction produces an absurd result in that those persons whose appeals have not been finally disposed of after 2 October will have an appeal on asylum grounds as well as on human rights grounds, even though the human rights grounds may be unarguable, whereas those like the present appellants, whose appeals have been finally disposed of before 2 October, are denied such a right even though their claims may be meritorious. Mr Gill submits there is no rational basis for such a distinction. He furthermore submits that it is a fundamental principle of justice that people should be treated equally and like cases should be treated alike. If there is to be discrimination, then such discrimination must be rationally justified.
13. The judge held that there was rational justification for the policy. He said at paragraph 35 of his judgment:

"There were in any event rational justifications for the policy. It distinguishes between those whose human rights claims had been considered (albeit in the context of their asylum applications) and finally rejected by the independent appeals procedure and those whose claims had not been finally determined, or whose claims involved issues or facts that were not the subject of the pre-2 October 2000 appeal determinations. There is a public interest in preventing the reopening or duplication of appeals, which is not only costly in time and money but delays the allocation of resources to, and the determination of, other cases."

14. In my judgment, that reasoning of the judge cannot be challenged. Those who are said to be discriminated against by this policy will already have had their human rights claims considered and finally rejected on appeal. The only respect in which they are discriminated against is that they cannot have a second appeal. It is impossible to characterise this distinction as absurd or irrational or one which could not rationally be justified.
15. Mr Gill compares those whose claims are not disposed of until after 2 October and who have hopeless human rights grounds for entering the United Kingdom with those whose claims are disposed of before 2 October and who have meritorious human rights grounds. In my view that is not the correct comparison since, if the appellate system is working properly, pre-2 October claimants, who have meritorious claims which have already been considered, should be successful in any event.
16. It seems to me that the high hurdle of irrationality which Mr Gill has to surmount is one which is not arguably surmounted in this case.
17. I would refuse permission to appeal on the second issue.
18. LORD JUSTICE JONATHAN PARKER: I agree.
Order: Permission to appeal allowed as to the first issue only. Revised skeletons to be filed within 7 days and Respondent has 14 days to file revised skeleton thereafter.