COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KEENE
LORD JUSTICE SCOTT BAKER
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|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Miss Lisa Giovannetti (instructed by The Treasury Solicitor) for the Respondent
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Lord Justice Scott Baker:
"On an appeal under section 82 of the 2002 Act brought on the grounds that removal from the United Kingdom would breach the United Kingdom's obligations under the Geneva and Human Rights Conventions, does the Immigration Appellate Authority have jurisdiction to take into account what may happen in the course of the immigrant being removed from the United Kingdom and travelling to his safe home area in the country concerned?"
a) he had been detained and tortured in the KAA by (i) Islamic groups who considered his political activities blasphemous and (ii) a rival secular Kurdish group and that he remained at risk from them in the KAA.
b) he could not go to Government controlled Iraq because he would be detained and tortured by the Saddam regime as a supporter of the Kurdish opposition to him.
"We reached agreement on enforced returns with the outgoing Iraqi Interim Government just before the elections in Iraq held on 30 January 2005. However, the new administration has not yet been appointed, although we expect this process to be completed soon. Once ministers are in post we will be confirming our operational plans with them. We cannot at this stage be firm on when enforced returns might start, nor is it possible to disclose the likely mechanics of the returns operation, as no final arrangements have been made pending the operational decision being taken to proceed."
"Our function is to consider first whether the appellant would be at real risk of persecution under the Refugee Convention if today returned to his home area in Iraq (Dyli). If the answer to that question is in the negative, the Convention is not engaged. Such a finding will usually (but not always see below at paragraph 38) mean that the appellant cannot succeed in showing a real risk of breach of his protected human rights under Article 3 of the European Convention either, since the risk element must reach the same threshold required to amount to persecution under the Refugee Convention "
Section 82(1) provides:
"Where an immigration decision is made in respect of a person he may appeal to an adjudicator."
"The decision of the Secretary of State to refuse me asylum dated 16.7.03."
"(g) that the removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act as being incompatible with the appellant's Convention rights."
This, submits Miss Giovannetti, is concerned with removal in principle and where an appeal is brought under this provision against an immigration decision the issue is whether removal per se would breach the United Kingdom's international obligations. This, it is submitted, involves consideration of the circumstances in the country of origin and the facts of the particular case, but not the route of return or travel arrangements whether they have been identified or not.
"Where, as here, the court is required to review the legality of an administrative decision already made it is generally no part of its duty to go further and review also, as a distinct exercise, the legality of the decision-maker's carrying the decision into effect at some future date. Any other view would submit the court's public law jurisdiction to undesirable and possibly insupportable distortions. In any given case, within and without the immigration field, there may be many reasons why a public decision maker might not carry into execution a decision which he has earlier announced; or he might give effect to it subject to modification or qualification."
True, Laws LJ was speaking in the context of judicial review, but the general point is well made and emphasises the distinction between on the one hand refusing the appellant leave to enter and on the other setting directions for his removal. Also, removal directions may change.
"The question of internal flight only arises where a claimant has a well-founded fear of persecution in his own home area. If he has no such fear there, the possibility of his movement elsewhere simply does not arise. He is not a refugee."
"Of course, that assumes that he can be safely returned to that area, a matter which I shall turn to when dealing with the second way in which the applicant's case on the "fear test" is put."
That second way was the absence at that time of obtaining access to the KAA other than via Bagdhad.
Keene LJ went on:
"It is of course right that the removal directions in this case specify Iraq as the place to which removal would take place albeit that they do not specify a date or time. Moreover, section 69(1) of the Immigration and Asylum Act 1999 gives a right of appeal on the ground that removal "in consequence of the refusal would be contrary to the Convention.""
"34 .it is sufficiently clear that the Secretary of State does not propose to remove Mr Gardi or others in his position to the KAR via Baghdad or any other part of Iraq controlled by its government, unless and until a Convention-compliant method of so doing can be achieved or a means is found of achieving access to the KAR which avoids Iraqi-controlled territory altogether. While it might be argued that in theory the applicant in the present situation is "outside the country of his nationality" "owing to a well-founded fear of being persecuted", the reality is that he is outside simply because a safe method of return to the KAR is not at present available in practice. He will not be returned to the KAR until such a method is available. In the light of the Secretary of State's undertaking, the applicant cannot have a fear that he will be returned to a part of Iraq where he will be persecuted.
35 I cannot see that a person who has a safe home territory, to which he currently cannot obtain access, is to be described as having a well-founded fear of persecution, any more than would someone who comes from a "safe" land-locked state to which he currently cannot obtain access because of its hostile neighbours where he would be persecuted. He cannot currently be returned but he is not a refugee .."
"First, the clear policy of Part IV of the 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 74-77 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."
Section 65(1) provided:
"A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to a 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."
Auld LJ summarised the competing arguments at para 22:
"22 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.
23 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 (emphasis added) "
He rejected the Secretary of State's submissions saying :
"28 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."
Sedley LJ said at p.948:
"37 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.
38 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  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 the rock to the 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 section 6 and 7 of the Human Rights Act 1998. What possible legislative policy could this represent? The one-stop policy?"
Arden L.J agreed with Sedley LJ that the Secretary of State's argument could not succeed on the plain wording of section 65(1) and added:
"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."
(1) A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to an adjudicator on the ground that his removal in consequence of the refusal would be contrary to the Convention.
(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.
Lord Justice Keene: