IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. AS/04660/2004]
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE LEVESON
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|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||DEFENDANT/RESPONDENT|
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MR S MURRAY appeared as an Advocate to the Court (Amicus).
MR R HUSAIN (instructed by Refugee Legal Centre) appeared behalf of the Respondent.
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"2. The appellant is a Liberian national who, until he left the country, was an Associate Justice and the second most senior judge of the Liberian Supreme Court. In May 2003 he gave judgment in a constitutional motion concerning election law and senatorial tenure. His judgment was against the interests of powerful senators and leading parties of President Charles Taylor's National Patriotic Party ("NPP"). The appellant received death threats and intelligence reports confirmed that his life was indeed at risk. All the judges who sat on the case left the country. The Chief Justice fled to Ghana. The appellant left Liberia, staying with the Chief Justice for five days and claimed protection in the United Kingdom. The Secretary of State rejected his claim on the basis that circumstances had changed and risks had dissipated. The adjudicator dismissed the appellant's appeal, and the AIT upheld the adjudicator's determination."
"To the extent that there would be an interference [I interpolate, that is with the appellant's family life] I am satisfied that it would be proportionate."
"a) a party has been granted permission to appeal to the Immigration Appeal Tribunal against an adjudicator's determination before 4th April 2005, but the appeal has not been determined by that date; and
"b) by virtue of a transitional provisions order the grant for permission to appeal is treated as an order for the Tribunal to reconsider the adjudicator's determination,
"the reconsideration [should] be limited to the grounds upon which the Immigration Appeal Tribunal granted permission to appeal."
4 April 2005 was the date when the material transitional provisions took effect.
"What he now seeks to argue is the reverse of what was argued in the grounds: He seeks to establish that in an appeal against a decision which does not give the Secretary of State any entitlement to remove an individual without making a further appealable decision, an appellant has a right to raise human rights grounds as though the second decision had already been made."
"For the reasons we have given at some length earlier in this determination, it is not open to the Appellant to change his ground of challenge in that way. [I interpolate, that of course is a reference to their ruling on the rule 62(7) point.] We consider the issue on the basis on which it was put in the grounds."
"(1) Where an immigration decision is made in respect of a person, he may appeal [to the Tribunal]. [I interpolate, the statute has been amended, it previously referred to an adjudicator].
"(2): In this part 'immigration decision' means …
"(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no need to enter or remain …
"(g) a decision that a person is to be removed from the United Kingdom by way of directions under [section 10(1)(a), (b) or (c) of the Immigrations and Asylum Act 1999 (removal of person unlawfully in United Kingdom)."
"An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds …
"(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights …
"(g) that 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 1998 as being incompatible with the appellant's Convention rights."
"On the basis of the information you have provided, it has been concluded that your removal would not be contrary to the United Kingdom's obligations under the ECHR."
"… all asylum appeals under section 69 of the 1999 Act (and thus under section 8 of the 1993 Act) are hypothetical in the sense that they involve the consideration of a hypothesis or assumption, which is reflected in the wording of each of the subsections of section 8, namely that the applicant's removal or requirement to leave (as the case might be) 'would be contrary to the United Kingdom's obligations under the Convention' (our emphasis)."
"We are aware that it has sometimes been said that, in dealing with a refusal to vary leave to enter or remain, the appellant authorities should deal also with human rights on removal on the basis that removal is imminent: but it is not imminent in any legal sense because of the need for a further decision. So much is clear from the European Court of Human Rights decision in Vijayanathan and Pusparajar v France (1992) 15 EHRR 62."
"(1) This section applies on an appeal under section 82(1) …
"(2) [The Tribunal] must determine -
(a) any matter raised as a ground of appeal …
"(3) [The Tribunal] must allow the appeal in so far as it thinks that
(a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or
"(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently …
"(5) Insofar as subsection (3) does not apply, [the Tribunal] shall dismiss the appeal."
Order: Cross-appeal allowed. Appeal adjourned.