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 IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		7th July 2005

1. LORD JUSTICE PILL: Lord Justice Clarke will give the first judgment.

LORD JUSTICE CLARKE:

Introduction

2. This is an appeal from a decision of the Immigration Appeal Tribunal ("the IAT") notified to the parties on 14th December 2004 by which it dismissed an appeal by the appellant on the ground that the appeal was "treated as abandoned" by reason of section 58(9) of the Immigration and Asylum Act 1999 ("the 1999 Act").

The facts and issues

3. The appellant is a Nigerian who applied for entry clearance to come to the United Kingdom as a working holidaymaker. That application was made to the Entry Clearance Officer in Lagos, who on 5th December 2002 refused it on what the IAT described as almost all possible grounds. That refusal gave rise to a right of appeal under section 59(2) of the Act and the appellant appealed to an adjudicator, Mr TR Cockrill. The appellant advanced two grounds of appeal, first on the merits and secondly on the basis that the Entry Clearance Officer discriminated against the appellant on the grounds of race, contrary to the Race Relations Act 1976 as extended. The adjudicator allowed the appellant's appeal on the merits and said that in those circumstances it was unnecessary to decide whether there had been any discrimination on the grounds of race. In those circumstances he expressed no view on that question.
4. The appellant appealed to the IAT under sections 8(4) and 65 of the 1999 Act. He did not of course appeal on the ground on which he had succeeded and which led to his appeal being allowed. However, he appealed on the basis that the adjudicator ought to have considered the appeal on the ground of discrimination and that he ought to have held that the Entry Clearance Officer had unlawfully discriminated against him on racial grounds.
5. On the face of it this seems somewhat curious, since ordinarily appeals are brought against orders and the appellant's appeal had succeeded. The reason the appellant appealed to the IAT was because he submitted that a finding of racial discrimination was necessary for him to pursue a claim in the county court for damages for racial discrimination.
6. The procedural position is as follows. The decision appealed against to the adjudicator was made on 5th December 2002. The appeal was brought under the 1999 Act. The effect of (Commencement No 4) order 2003 SI 754, Article 3 and Schedule 2, paragraph 6(4) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") was to continue the rights of appeal under the 1999 Act, notwithstanding its repeal by the 2002 Act.
7. The relevant statutory provisions are these. Section 65(1) of the 1999 Act enables an appeal to be brought against the decision of an authority, which includes an Entry Clearance Officer, where it is alleged that in taking that immigration decision the authority racially discriminated against the appellant. By section 65(2) racial discrimination is constituted by the acts or omissions which are made unlawful by section 19B of the Race Relations Act 1976 ("the 1976 Act"). Section 65(3) provides:

"Subsections (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant's entitlement to enter or remain in the United Kingdom, racially discriminated against the appellant or acted in breach of the appellant's human rights."

8. Section 65(4) and (5) provide:

"(4) The adjudicator, or the Tribunal, has jurisdiction to consider the question.

(5) If the adjudicator, or the Tribunal, decides that the authority concerned:

(a) racially discriminated against the appellant; or

(b) acted in breach of the appellant's human rights

the appeal may be allowed on the ground in question."

9. Thus the adjudicator had jurisdiction under section 65(3) of the 1999 Act to determine the question whether the Entry Clearance Officer racially discriminated against the appellant. As I have indicated, he did not determine that question. He should have done so, even though he was allowing the appellant's appeal on other grounds. At the time the matter was before the adjudicator there was a practice direction in force requiring adjudicators to reach a decision on such a question when it was raised before them. Unfortunately, it appears that the adjudicator was unaware of the practice direction and no one drew it to his attention.
10. We note in passing that in the 2002 Act section 86(2)(a) provides that in an appeal under section 82:

"(2) The adjudicator must determine-

(a) any matter raised as a ground of appeal (whether or not by virtue of section 85(1)) ..."

So, as the IAT observed, it would now be a matter of statutory duty and not just practice direction that the issue be dealt with.

11. The reason for those provisions is to be found in sections 19B(1), 57 and 57A of the 1976 Act. Subject to certain exceptions which are not relevant here, section 19B(1), which was inserted by amendment in 2000 with effect from 2nd April 2002, makes it unlawful for a public authority to discriminate racially in carrying out its functions.
12. Section 57 of the 1976 Act enables proceedings for damages for racial discrimination to be brought in the county court. Section 57A provides, so far as material:

"(1) No proceedings may be brought by a claimant under section 57(1) in respect of an immigration claim if--

(a) the act to which the claim relates was done in the taking by an immigration authority of a relevant decision and the question whether that act was unlawful by virtue of section 19B has been or could be raised in proceedings on an appeal which is pending, or could be brought, under the 1997 Act or Part IV of the 1999 Act; or

(b) it has been decided in relevant immigration proceedings that that act was not unlawful by virtue of that section.

(2) For the purposes of this section an immigration claim is a claim that a person--

(a) has committed a relevant act of discrimination against the claimant which is unlawful by virtue of section 19B; ...

(3) Where it has been decided in relevant immigration proceedings that an act to which an immigration claim relates was unlawful by virtue of section 19B, any court hearing that claim under section 57 shall treat that act as an act which is unlawful by virtue of section 19B for the purposes of the proceedings before it.

(4) No relevant decision of an immigration authority involving an act to which an immigration claim relates and no relevant decision of an immigration appellate body in relation to such a decision shall be subject to challenge or otherwise affected by virtue of a decision of a court hearing the immigration claim under section 57."

13. The "relevant decision" is defined in subsection (5)(a) as:

"in relation to an immigration authority, any decision under the Immigration Acts relating to the entitlement of the claimant to enter or remain in the United Kingdom; ..."

14. The only court or tribunal before which a claimant can pursue a claim for damages for racial discrimination is the county court. However, no such claim can be brought in a case of this kind where "the question whether the Act was unlawful by virtue of section 19B" has been or could be raised in proceedings on an appeal which is pending or could be brought under the 1999 Act. Thus if the appellant in the instant case wanted to pursue a claim for damages for racial discrimination, he had first to have the question whether the Entry Clearance Officer was guilty of race discrimination determined by the adjudicator. That was no doubt the reason why the appeal to the adjudicator was advanced on that ground, and it was why the practice direction required the adjudicator to determine that question even though he was allowing the appeal on other grounds.
15. By section 65(3) of the 1999 Act the IAT equally had jurisdiction to determine the same question. Hence the appeal to the IAT on that ground. A Vice-President of the IAT granted permission to appeal to the IAT. However, by the time the matter came before the IAT, in the light of the decision of adjudicator allowing the appellant's appeal, the Secretary of State had granted entry clearance and the appellant had entered the country with leave to do so. This was an important development because section 58(9) of the 1999 Act provides as follows:

"A pending appeal under any provision of this Part other than section 69(3) is to be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom."

See now section 104(1) and (4) of the 2002 Act which are to the same effect but not relevant to this appeal.

16. In the light of section 58(9) of the 1999 Act, the IAT accepted the Secretary of State's submission that the appeal had been abandoned because of the grant of leave to enter. The IAT held that only one appeal is possible from a decision of the adjudicator, so that the IAT had no alternative but to dismiss the appeal.
17. The IAT made a number of observations as to the consequences of that conclusion to which I will return in a moment, but its decision was that since the appeal was treated as abandoned by section 58(9), it had no alternative but to dismiss the appeal.

The appeal to this court

18. The President of the IAT, Ouseley J, granted permission to appeal, not because he thought that the appeal raised an arguable point of law, but because he took the view that the problems created by cases of this kind provided "some other compelling reason" for granting permission.
19. Mr Chatwin submits that the IAT was wrong to hold that the appellant's appeal on the discrimination question was treated as abandoned by operation of law under section 58(9) of the 1999 Act. As set out in his written submissions, his argument can be summarised as follows:

1. Two appeals

(a) A person in the position of the appellant had two rights of appeal to the adjudicator and to the IAT under the 1999 Act, one under section 59(1) ("the merits appeal") and one under section 65(1) ("the discrimination appeal").

(b) On the true construction of section 58(9) only the merits appeal is to be treated as abandoned if the appellant is granted leave to enter the United Kingdom.

20. In the course of his oral submissions and in the light of a point made by Mr Justice Rimer, Mr Chatwin has submitted that section 58(9) has no application at all to an appeal to the IAT, since such an appeal is not "a pending appeal" within the meaning of subsection (9).

2. Severance

(a) Alternatively if there is only one appeal which raises two question (which I will call "the merits question" and "the discrimination question" respectively), those questions are entirely separate and distinct from one another and are severable.

(b) On the true construction of section 58(9), only the part of the appeal on the merits question is treated as abandoned.

3. Human rights

(a) If section 58(9) cannot be so construed by the application of ordinary principles of construction, it should be so construed or read down under section 3(1) of the Human Rights Act 1998 ("the 1998 Act") so as to achieve the same result.

(b) If that is not possible, the court should make an appropriate declaration of incompatibility under section 4(2) of the 1998 Act.

I will consider each of those submissions in turn.

1. Two appeals

21. The IAT dealt with the point shortly. Having referred to the provisions of section 55 of the 1999 Act, to which I referred earlier, the IAT said this in paragraphs 9, 10 and 20 of their determination:

"9. It is a mistake to suppose that those provisions set up a separate appeal from that which is made under eg section 59 and Schedule 4 to the 1999 Act on the grounds that the decision was not in accordance with the Immigration Rules. There is but one appeal which can be brought on a variety of grounds.

10. This is put beyond doubt in the 2002 Act where section 82 sets out the appealable immigration decisions and section 84(1) provides:

'(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds -

(a) that the decision is not in accordance with the Immigration Rules;

(b) that the decision is unlawful by virtue of section 19B of the Race Relations Act 1976 (discrimination by public authorities).'

...

20. It was the Secretary of State's first contention that the Appellant's appeal had been abandoned because of the grant of leave to enter. It was not possible for Mr Chatwin to resist this contention; we see no answer to it. There is only one appeal and the consequences for it of the grant of leave to enter are very clearly spelt out. We do not see a way under either the 1999 or 2002 Acts in which a ground of appeal can survive the deemed abandonment of the appeal."

22. Mr Chatwin says in his skeleton argument that that reasoning is wrong. He submits that sections 59(1) and (2) and 65(1) created two distinct rights of appeal. Section 59 provides:

"(1) A person who is refused leave to enter the United Kingdom under any provision of the 1971 Act may appeal to an adjudicator against-

(a) the decision that he requires leave; or

(b) the refusal.

(2) A person who, on an application duly made, is refused a certificate of entitlement or an entry clearance may appeal to an adjudicator against the refusal."

23. Section 65(1) 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, racially discriminated against him or acted in breach of his human rights may appeal to an adjudicator against that decision unless he has grounds for bringing an appeal against the decision under the Special Immigration Appeals Commission Act 1997."

24. Mr Chatwin submits that those are separate rights of appeal which are independent of one another and are treated entirely separately in the Act. There is undoubted force in that submission so far as it goes.
25. The problem is the language of section 58(8) and (9), which must be put in their context. Section 58 provides, so far as relevant:

"(1) The right of appeal given by a particular provision of this Part is to be read with any other provision of this Part which restricts or otherwise affects that right.

(2) Part I of Schedule 4 makes provision with respect to the procedure applicable in relation to appeals under this Part.

(3) Part II of Schedule 4 makes provision as to the effect of appeals.

(4) Part III of Schedule 4 makes provision-

(a) with respect to the determination of appeals under this Part; and

(b) for further appeals.

(5) For the purposes of the Immigration Acts, an appeal under this Part is to be treated as pending during the period beginning when notice of appeal is given and ending when the appeal is finally determined, withdrawn or abandoned.

(6) An appeal is not to be treated as finally determined while a further appeal may be brought.

(7) If such a further appeal is brought, the original appeal is not to be treated as finally determined until the further appeal is determined, withdrawn or abandoned.

(8) A pending appeal under this Part is to be treated as abandoned if the appellant leaves the United Kingdom.

(9) A pending appeal under any provision of this Part other than section 69(3) is to be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom.

(10) A pending appeal under section 61 is to be treated as abandoned if a deportation order is made against the appellant."

26. I should refer first to the point made in the course of the argument this afternoon that sections 8 and 9 do not include an appeal to the IAT. The submission is that the expression "a pending appeal" refers only to the appeal to the adjudicator and does not include the further appeal to the IAT. That submission is given some force by the distinction drawn in subsection (4), which it will be recalled provides:

"Part III of Schedule 4 makes provision-

(a) with respect to the determination of appeals under this Part; and

(b) for further appeals."

27. It is submitted that that subsection draws a clear distinction between "appeals under this Part" and "further appeals"; the "appeals under this Part" being appeals to the adjudicator and the "further appeals" including appeals to the IAT. Indeed, appeals to the IAT are provided for in Part III of Schedule 4, and in particular paragraph 20, which makes detailed provisions for appeals to the IAT. It is thus submitted that "further appeals" are not "appeals under this Part".
28. However, to my mind that is too simplistic an approach. Each of these subsections must of course be construed in the context of the section as a whole. Subsections (5), (6) and (7) make it clear, first, that an appeal under this Part is to be treated as pending during the whole period, beginning when the notice of appeal is given and ending when the appeal is finally determined, withdrawn or abandoned and, by subsection (7):

"If such a further appeal is brought, the original appeal is not to be treated as finally determined until the further appeal is determined, withdrawn or abandoned."

Thus the further appeal is, as I see it, treated by the section as part of one appeal process, which process begins when the notice of appeal is given and ends when the appeal -- that is including the further appeal to the IAT -- is "determined, withdrawn or abandoned".

29. In these circumstances, it seems to me to be plain that where in subsection (8) the Act provides that "a pending appeal under this Part is to be treated as abandoned if the appellant leaves the United Kingdom", the appeal is pending and is thus a pending appeal throughout the whole appeal process. The same, as I see it, is true of subsection (9).
30. It is submitted that it is wrong to construe the expression "a pending appeal under this Part" as including the further appeal, because the further appeal is not an appeal under this Part, but is provided for by Schedule 4. For my part, I am unable to accept that submission. Schedule 4 is enacted by section 58(2), (3) and (4), so that, as I see it, Schedule 4 is in a real sense part of Part IV, and any appeal provided for in Schedule 4 is thus an appeal under Part IV. I would therefore hold that the expression "a pending appeal under any provision of this Part" in subsection (9) includes the part of the appeal process which includes the appeal to the IAT.
31. Thus, the position is that sections 58, 59 and 65 are all in Part IV. Take subsection (8). The appellant's discrimination appeal under section 65(1) is "a pending appeal under this Part" within the clear meaning of that subsection. It follows that if the appellant left the United Kingdom while it was pending, his appeal would be treated as abandoned. The same is as I see it true of subsection (9). An appeal under section 65(1) is plainly an appeal "under any provision of this Part other than section 69(3)". The same of course applies to an appeal under section 59. It is therefore clear that whether there is in a case of this kind one appeal or two appeals, the appeal or appeals is or are "treated as abandoned" under section 58(8) if the appellant leaves the United Kingdom, and under section 58(9) if the appellant is granted leave to enter or remain in the United Kingdom.
32. It follows that by any ordinary process of construction of section 58(9), the IAT was correct to hold that the appellant's discrimination appeal was treated as abandoned when he was granted leave to enter the United Kingdom.
33. I should perhaps refer to section 104(4) of the 2002 Act, which has now superseded the provisions of the 1999 Act. Although it is not directly relevant to this appeal, I refer to it partly because the IAT referred to it and partly because it was the section considered by Hughes J in a recent decision of the Administrative Court, namely R (Bibi) v Immigration Appeal Tribunal [2005] EWHC 386 (Admin), to which I must refer in a moment.
34. Under the 2002 Act a merits appeal and a discrimination appeal are both appeals under section 82(1) of the 2002 Act and, whether treated as one or two appeals, by section 104(4) are expressly "treated as abandoned" if the appellant is inter alia granted leave to enter the United Kingdom.

2. Severance

35. I cannot see any basis on which the appellant can succeed under this head, if he cannot succeed under the first head.
36. I have set out these conclusions in some detail because they arise out of the written submissions which we received, but it is right to say that in the course of his oral submissions, with the exception of the submission that if any appeal does not include an appeal to the IAT, Mr Chatwin has not felt able to support them in oral argument.

3. Human rights

37. Before considering the possible impact of the 1998 Act, I should consider whether the appellant has been disadvantaged by the failure of the adjudicator to entertain the discrimination question or appeal.

The IAT's concerns

38. It seems that the reasons why Ouseley J granted permission to appeal to this court were the problems created or potentially created by the conclusion that the discrimination appeal or ground of appeal cannot survive the deemed abandonment of the appeal. The IAT expressed their concerns in this way in paragraphs 21, 22 and 23 of their determination:

"21. This is a particularly unfortunate consequence of the abandonment provisions, because it means that the Secretary of State can terminate an individual's appeal against the rejection by an Adjudicator of the race discrimination ground by the grant of entry clearance in certain cases. It also puts the individual who succeeds on the ordinary immigration merits, and a Secretary of State who seeks to avoid any further delay to that individual's entry into the United Kingdom, in the position of a having to wait the conclusion of the individual's race discrimination appeal before obtaining or granting leave to enter. This forces a choice upon the individual as between entry and pursuit of the race discrimination appeal, unless the Secretary of State removes that choice by himself granting an entry clearance which operates as the grant of leave.

22. Equally unintended, as it appears, is the consequence that if the Secretary of State loses the race discrimination point before the Adjudicator and seeks to appeal it further, that appeal would also be abandoned through the grant of leave to enter. This puts the Secretary of State in the position of having to delay the grant of leave, which he may not wish to appeal, in order to pursue his race discrimination appeal. If he grants entry clearance, which does not amount to leave to enter, the individual can terminate the Secretary of State's appeal by entering the United Kingdom, obtaining leave at the port.

23. If we had not been obliged to treat the appeal as abandoned, we would have concluded that the failure to comply with the Practice Direction constituted an error of law which meant that the appeal should be allowed. ..."

39. That reasoning has since been considered by Hughes J in the case of Bibi. In that case the adjudicator, as here, allowed an appellant's appeal on the merits, but did not determine the discrimination issue. Leave to enter was then granted and the IAT then took the view that the appeal must be treated as abandoned by reason of section 104(4) of the 2002 Act. It published a notice to that effect on 15th July 2004. The claimant applied for judicial review of that notice. She was represented (like the appellant here) by Mr Chatwin, who submitted to Hughes J that section 104(4) should be read as having no application when, notwithstanding the grant of leave to enter, an appeal on a discrimination point remained undecided.
40. Hughes J held that by reason of section 86(2) of the 2002 Act, the adjudicator was wrong in law not to determine the discrimination issue. The critical part of Hughes J's judgment for present purposes is his analysis of section 57A of the 1976 Act, which I have already set out. It was submitted to him that the effect of section 57A(1) was to oust the jurisdiction of the county court where the discrimination complained of occurred in the course of taking an immigration decision, and the discrimination issue had been, or could be, raised on an immigration appeal. Thus, it was submitted that the claimant was unable to go to the county court because the discrimination issue had been raised in the immigration appeal and that section 57A(1) ousted the county court's jurisdiction in consequence.
41. Hughes J rejected that submission. He focused on the express terms of section 57A(1) as follows:

"(1) No proceedings may be brought by a claimant under section 57(1) in respect of an immigration claim if --

(a) the act to which the claim relates was done in the taking by an immigration authority of a relevant decision and the question whether that act was unlawful by virtue of section 19(b) has been or could be raised in proceedings on an appeal which is pending, or could be brought under the 1997 Act or Part V of the 2002 Act; or

(b) it has been decided in relevant immigration proceedings that that act was not unlawful by virtue of that section."

42. Hughes J said that Mr Chatwin's submission did not have sufficient regard to the words "which is pending or could be brought". I can do no better than quote paragraphs 15 to 18 of Hughes J's judgment, which set out the reasons why he concluded that the claimant had lost her right to have her discrimination claim adjudicated upon. Hughes J said this:

"15.It seems to me the purpose of section 57A(1) is clear. It is to prevent there being inconsistent decisions in an immigration appeal under Part V of the 2002 Act on the one hand, and in the County Court on the other. It is also to encourage, wherever possible, the making of discrimination decisions arising in the context of immigration before a Tribunal versed in immigration affairs. However, once there is no longer an immigration appeal which is pending or could be brought, the possibility of inconsistent decision ceases to exist and, on the plain language of the statute, there is no bar to making a discrimination claim in the County Court.

16. The claimant submits that that analysis offends against the one-stop appeal principal said to underlie Part V of the 2002 Act. That does not seem to me to be so. It is certainly true that an immigration appellant may not appeal on one ground and, when he fails on that, try again on a separate ground if it is one which he could and should have raised the first time round. He has only one appeal. There is nothing peculiar to immigration about that. There are also special ancillary provisions in section 120 of the 2002 Act requiring an immigration applicant to set out his whole case, but these have no bearing on the present problem. An immigration appellant who has a discrimination ground of appeal should clearly raise it in his single appeal to the Adjudicator under section 82, and if subsequently it raises a point of law he should raise it in his appeal to the Tribunal under section 101. If he does not, his opportunity to use it to challenge the immigration decision is lost. But if for some reason he chooses not to or erroneously omits to do so, perhaps because he has not had the necessary advice, there is no statutory provision preventing him from subsequently bringing a County Court action under section 57, providing he does it within six months of the coming to an end of any pending appeal in the immigration system. If that happens he may recover damages, but the immigration decision will not retrospectively be reversed. That is the explicit effect of section 57A(4).

17. Next, sections 68(2) and (2A) seem to me plainly to confirm the temporary nature of the ouster of the County Court's jurisdiction which is achieved by section 57A(1). Those provisions of section 68 demonstrate that a County Court claim can be brought in an immigration case once the immigration appeal ceases to be either pending or available to be brought. I should add this: only the County Court can award damages for discrimination. In an immigration case, a claimant has to bring County Court proceedings after his immigration proceedings are over. If the discrimination point has been resolved in his favour by either the Adjudicator or the Immigration Appeal Tribunal, then section 57A(3) means that the unlawfulness of what occurred cannot be reopened. If the point has been resolved against him in the immigration proceedings, that cannot be reopened either: section 57A(1)(b).

18. For those reasons it follows that I am against the claimant's contention that the effect of her appeal to the Immigration Appeal Tribunal being treated as abandoned was to deprive her of her right to have her discrimination complaint adjudicated upon. It was open to her to act at any time within six months of the abandonment of her appeal via a claim under section 57 in the appropriate County Court."

43. I should quote section 68(2) and (2A) of the 1976 Act, because they played a significant part in Hughes J's reasoning. They provide:

"(2) A county court ... shall not consider a claim under section 57 unless proceedings in respect of the claim are instituted before the end of -

(a) the period of six months beginning when the act complained of was done; ...

(2A) In relation to an immigration claim within the meaning of section 57A, the period of six months mentioned in subsection (2)(a) begins on the expiry of the period during which, by virtue of section 57A(1)(a), no proceedings may be brought under section 57(1) in respect of the claim."

44. Further, section 68(6) provides:

"A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

45. We asked Mr Chatwin whether he was submitting that the reasoning of Hughes J was wrong. He said that he was not. In all the circumstances, we see no reason to disagree with it. The same reasoning applies to the instant case. Thus there is no statutory provision which prevented the appellant from bringing his discrimination claim in the county court under section 57 of the 1976 Act, provided he did so in time, which, as I understand section 68(2A) of the 1976 Act was six months from the time that his appeal was treated as abandoned under section 58(9) of the 1999 Act. That is subject to the possible effect of section 68(6), which gives the county court a discretionary power to extend time in certain circumstances. It follows that, if section 58(9) of the 1999 Act is construed as I indicated earlier, it did not deprive the appellant of his right to have his discrimination claim adjudicated upon. He could have brought it in the county court, which would have had jurisdiction to determine it, both as to liability and as to quantum.
46. In these circumstances, the construction put on section 58(9) by the IAT, with which for the reasons given earlier I agree, does not in any way affect or infringe the appellant's human rights.
47. I should add in this regard that Hughes J recognised that his reasoning was in some respects inconsistent with some at least of the views expressed in paragraphs 21 to 23 of the IAT's determination which I quoted earlier. In this regard, Hughes J said in paragraph 23 of his judgment that it did not appear that the attention of the IAT had been drawn to the phrase "which is pending or could be brought" in section 57A(1) or to section 68(2A) of the 1976 Act. He said that on the fuller argument addressed to him, it seemed to him that a favourable finding in the immigration proceedings is not a necessary precondition to a claim in the county court for discrimination. I agree.
48. Hughes J further said this in paragraphs 24 to 26 of his judgment:

"24. The Tribunal further drew attention to a number of, as it seems, unintended and unfortunate consequences to which that position might lead. First, it contemplated that if the Secretary of State were to be unsuccessful on the discrimination point before the Adjudicator and also on the merits but seek to appeal the discrimination point further, his appeal would be abandoned if, in the mean time, he recognised the merits by granting leave to enter. I hesitate to disagree with the Immigration Tribunal on the matter of immigration, but at least under section 104(4) that is not, I think, the consequence. Section 104(4) treats as abandoned an appeal where the appellant (my emphasis) is granted leave to enter, and in the example contemplated the appellant is the Secretary of State.

25. Secondly, the Tribunal drew attention to the fact that if a favourable finding upon a discrimination issue within the immigration proceedings was a necessary precondition to a Race Relations Act claim in the County Court, that meant that an appellant who has succeeded on the merits must await his entry clearance whilst any appeal on the discrimination point is resolved. On the view that I have taken of the legislation, that consequence does not follow.

26. Thirdly, however, this consequence does follow. If the Adjudicator's finding against the appellant on the discrimination point is appealed, a subsequent grant of entry clearance puts an end to the appeal, and because of section 57A(1)(b), the Adjudicator's conclusion adverse to the appellant is fatal to any subsequent County Court claim. That, as it seems to me and as it seemed to Ouseley J, is an unintended and unfortunate consequence of the legislation. It is, however, a plain consequence and the fact that it exists is not a reason to construe the legislation other than in the way that I have."

49. I agree with those conclusions, which appear to me to apply equally under the 1999 Act.
50. It follows that I would dismiss the appeal. I would however add this. As both the IAT and Hughes J observed, there is one situation in which an appellant might be prejudiced. It is where the adjudicator decides a discrimination question against the appellant, and his subsequent appeal is treated as abandoned by a subsequent grant of leave to enter. Mr Chatwin submits that section 58(9) must be construed or read down under section 3 of the 1998 Act so as to avoid any discrimination or disadvantage to the appellant in such a case. He then seeks to take advantage of section 58(9) so construed or read down for the benefit of the appellant in the instant case.
51. However, I would not accept that approach. First, it appears to me that it is very difficult if not impossible to construe section 58(9) to cater for that case. Mr Chatwin was unable to suggest any form of words which might assist any proposed reading down. I am not surprised, because it appears to me that the subsection is quite clear.
52. Secondly, if section 58(9) were to be construed or read down for the benefit of such a person, it would not be construed or read down for the benefit of a person in the position of the appellant, whose human rights have not in any way been infringed.
53. Thirdly, it appears to me that the court should only finally determine this question of construction in a case where it truly arises.
54. Finally, it appears to me that this court can certainly not entertain an application for a declaration of incompatibility in this case, since there is no sensible basis upon which it would be appropriate to grant a declaration on the application of a person whose rights are not infringed or even potentially infringed.
55. I should add this by way of postscript. The problem that has arisen in this case has now arisen in several cases, so it is to be hoped that those who are engaged on both sides in appeals to adjudicators or to the tribunal (and the tribunals themselves) are now fully aware of the difficulty that has arisen.
56. Our attention has been drawn to clause 7 of the Immigration, Asylum and Nationality Bill, which has been published and which contains an additional proposed subsection to add to section 104(4) of the 2002 Act, which provides:

"(4A) But subsection (4)(b) shall not apply to an appeal if or in so far as it is brought on the ground specified in section 84(1)(b)."

57. The purpose of that clause is to solve the problem for the future under the 2002 Act. So I naturally hope that the kind of case in which a problem might have arisen will only arise very rarely indeed in the future under the 1999 Act.
58. However that may be, for the reasons I have given, I would dismiss the appeal.
59. MR JUSTICE RIMER: I agree. I too would dismiss the appeal. There is only one issue on which I would wish to add anything. During the course of argument I became concerned as to whether it might be that the better construction of section 58 of the Immigration and Asylum Act 1999 is that the only "pending appeal" to which section 58(9) refers is one to the adjudicator, on the grounds that it is only such an appeal that is brought under Part IV of the 1999 Act. Any further appeal to the IAT is brought under Part III of Schedule 4 to that Act, albeit that it is section 58(4), itself of course in Part IV, that provides the statutory source for the relevant appellate machinery provided by Schedule 4. If that interpretation of section 58(9) were correct, then it would follow that, on the appellant being given leave to enter the United Kingdom, the still "pending appeal" to the adjudicator (see section 58(6) and (7)) would be treated as abandoned, yet the further appeal to the IAT would not. The IAT would remain seised of the appeal to it, even though the original appeal to the adjudicator giving rise to the decision whose correctness was the subject of the further appeal to the IAT would have been treated as abandoned. That would, I consider, be an odd and improbable consequence. For the reasons given by my Lord, Lord Justice Clarke, I agree with him that the better interpretation of section 58 as a whole -- and section 58(9) in particular -- is that the reference to a "pending appeal" in section 58(9) is to a pending appeal both to the adjudicator and to the IAT.
60. LORD JUSTICE PILL: I also agree that the appeal should be dismissed. I agree for the reasons given by Lord Justice Clarke. I express specific agreement with his remarks on the construction of section 58(9) in the light of section 3(1) of the Human Rights Act 1998.

ORDER: Appeal dismissed; no order as to costs, save for a detailed assessment of the Appellant's Community Legal Service Funding costs.

(Order not part of approved judgment)