COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE AYSLUM AND IMMIGRATION TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SCOTT BAKER
LORD JUSTICE THOMAS
| MS (IVORY COAST)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Charles Bourne (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 29 January 2007
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Lord Justice Scott Baker:
This is the judgment of the court.
(a) He ought to have given some consideration to the history of the appellant's claim (pursued or not) for contact with her children since her release from immigration detention in November 2000.
(b) On how far the appellant would be able to pursue such an application from overseas he:
(1) applied the wrong standard of proof;
(2) failed to cite any evidence to support his decision.
(a) the appellant's Article 8 rights were adequately protected by the undertaking conceded by the Home Office in which case the refusal of leave to remain should be upheld and the appeal from the respondent dismissed, or
(b) she should be given open ended leave to remain and her appeal allowed.
By the expression "open ended leave to remain" we think the tribunal was referring to discretionary leave to remain, to which we shall return in a moment.
"It follows that we see no such "truly exceptional" circumstances in the appellant's private or family life as would make her eventual removal disproportionate to the legitimate purpose of immigration control in terms of Huang  EWCA Civ 105."
Leave to enter/remain.
Discretionary leave to remain.
"2. Criteria for granting discretionary leave
2.1 Cases where removal would breach Article 8 of the ECHR
Where the removal of an individual would involve a breach of Article 8 of the ECHR (right to respect for private and family life) on the basis of family life established in the UK, they should be granted Discretionary Leave. Leave should not be granted on this basis without a full consideration of the Article 8 issues.
This category applies to both asylum and non-asylum cases. In non-asylum cases it is most likely to arise in the context of a marriage or civil partnership application where, although the requirements of the Rules are not met (e.g. because the correct entry clearance is not held), there are genuine Article 8 reasons which would make removal inappropriate.
5. Duration of grants of discretionary leave
5.1 Standard period for different categories of discretionary leave
Subject to sections 5.2 and 5.3 it will normally be appropriate to grant the following periods of Discretionary Leave to those qualifying under the categories set out in section 2.
- Article 8 cases (section 2.1) 3 years
5.2 Non-standard grant periods
There may be some cases for example, some of those qualifying under section 2.1 (Article 8) where it is clear from the individual circumstances of the case that the factors leading to Discretionary Leave being granted are going to be short lived. For example:
- an Article 8 case where a person is permitted to stay because of the presence of a family member in the United Kingdom and where it is known that the family member will be able to leave the United Kingdom within, say, 12 months;
- or a case where a person is permitted/required to stay here to participate in a court case.
In these cases it will be appropriate to grant shorter periods of leave.
6. Curtailing discretionary leave.
A grant of Discretionary Leave will not normally be actively reviewed during its currency."
The API of January 2006 has been replaced by one of October 2006. There are, however, no changes that are relevant to the present case.
Leave to remain outside the immigration rules.
"where a person does not qualify for leave under the Rules or the Humanitarian Protection or Discretionary Leave policies, any other leave to enter or remain must only be granted under a further category of 'Leave Outside the Rules (LOTR)' such instances are likely to be rare."
And paragraph 1.2:
"The only two circumstances where it will be necessary to consider granting LOTR will be in mainly non-asylum and non-protection cases:
- Where someone qualifies under one of the immigration policy concessions; or
- For reasons that are particularly compelling in circumstance."
Where particularly compelling circumstances are alleged (see paragraph 2.2):
"Any such case should be considered on its individual merits and in line with any relevant policy at the time. Case workers/immigration officers should always first give full consideration to whether someone first qualifies under the provisions of the Immigration Rules, or the Humanitarian Protection and Discretionary leave criteria or any relevant policy instruction.
It is not possible to give instances or examples .However, grants of such LOTR should be rare, and only for genuinely compassionate and circumstantial reasons, or where it is deemed absolutely necessary to allow someone to enter/remain in the UK, when there is no other available option."
Paragraph 3 provides that LOTR should not be granted because removal does not seem a viable option or where it conflicts with any relevant policy.
(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.
(6) Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes for subsection (3)(b)."
"46 Mr Singh pointed out that, where such applicants (asylum and human rights applicants) are refused leave to enter, they have a right of appeal. If their appeal succeeds, on asylum or human rights grounds, they are entitled to leave to enter and to remain here, in the latter case, until they can be safely (be) returned without violation of their ECHR rights. This status cannot be taken away from them by the Secretary of State conferring on them a new status which does not in this manifestation form any part of the statutory scheme. We accept Mr Singh's submissions."
(1) entitlement to work;
(2) entitlement to benefit; and
(3) the opportunity to apply for the leave to be varied i.e. for practical purposes extended.
It may be that the temporary admission which we are told has been granted to the appellant in the present case to some extent assists her on (1) and (2) but that is a matter we do not intend to explore as, for reasons we shall explain, we do not think it was appropriate for her to have temporary admission.
"An appeal under s 82(1) against an immigration decision must be brought on one or more of the following grounds-
(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."
"Thus the subsection provides that the appellant may appeal "on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention (our emphasis)".
It was thus held that in Ravichandran (Senathirajah) v Secretary of State for the Home Department  Imm AR 97 that it was the duty of the appellate authorities to consider the position as at the time of the hearing of the appeal."
He referred to the Secretary of State's "detailed statement of grounds" in support of the application for judicial review in the Afghan Highjacking case  INLR 116 where he made the following submission in respect of the wording of the 1999 Act which echoes that of s 8 of the 1993 Act:
"All asylum appeals are hypothetical. They are all concerned with the removal that has not in fact taken place. This is recognised by the wording of s 69(1)?(4) which in each case refer to a removal that the appellant claims "would be" contrary to the Convention. It is to be noted that the statute does not say "will be". Although that is not this case, "would be" includes the situation where no removal is in fact contemplated."
He continued later:
" What emerges from this analysis is that, where an appeal is brought under s 8(1), the IAT will necessarily have to determine the refugee status as at the date of the hearing of the appeal. It follows that such an appeal provides a satisfactory vehicle for mounting a challenge to the Secretary of State's rejection of an asylum claim.
 The same is true of an appeal under s 8(3) and (4). In each case the decision facing IAT is the hypothetical one of whether removal would be contrary to the Convention at the time of the hearing i.e. on the basis of the refugee status of the appellant at that time.
 ..the Secretary of State was, in our judgment, right to submit that all asylum appeals under s 69 of the 1999 Act (and thus under s 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 s 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)."
"Evidently the court has to decide whether an "immigration decision" consisting in a refusal to vary leave, which is appealed pursuant to the section 82(2)(d) is an immigration decision "in consequence of which" the appellant's removal would be unlawful under the Human Rights Act section 6 as being incompatible with the appellant's Convention rights. The answer to the question must, I think, depend on the sense Parliament intended to give to the phrase "in consequence of." In a case where variation of leave has been refused, removal is not an immediate consequence. Removal directions must separately be given if the appellant is to be removed under the present statutory regime. Such directions cannot be given contemporaneously with the refusal to vary leave. But removal may at least be an indirect consequence of refusal to vary: without it, removal directions could not lawfully be given. Did Parliament, in enacting section 84(1)(g), intend this latter, wider sense of consequence or only the narrower sense so that it referred to an imminent removal?"
"On the AIT's view of the question, namely that the human rights issue is not justiciable on a variation of leave appeal, the unsuccessful appellant in such a case, if he has a potential article 8 claim which would so to speak come live on his removal, surely faces a very unsatisfactory choice. Either he leaves the United Kingdom, as the criminal law says he must, without his human rights claim being determined, or he remains until removal directions are given, anticipating that at that stage he will be able to ventilate his human rights claim before the AIT.
18 It seems to me to be to be wrong in principle that the price of getting before an independent tribunal, for a judicial decision on a human rights claim should be the commission of a criminal offence and other associated legal prohibitions. But that seems to me the effect of the AIT's conclusion."
Following conclusion of argument counsel have clarified that the present appellant's position is different in that by virtue of her continued temporary admission she commits no offence by remaining here.
"27 In my judgment that does no more than point to the fact that the rights conferred by the ECHR and the Refugee Convention are, in various respects, not the same. The reasoning in Saad, however, seems to me with respect to point strongly towards the wider view of the term 'in consequence of' in section 84(1)(g) in contrast to the narrower approach, a contrast I have explained earlier.
28 The short, but important, position is that once a human rights point is properly before the AIT they are obliged to deal with it. That is consonant with the general jurisprudence relating to the obligations of public bodies under the Human Rights Act and seems to me to be the proper result of the construction of the relevant provisions."
"I have reached the conclusion that it is impossible for immigration judges in cases of this kind (involving the safety of arrival at an airport and of a journey into Mogadishu) to deal with all the eventualities at the time of the hearing. The judge may have to make it clear what has to be done by the respondent so that an enforced returnee to Somalia does not face a real risk of Article 3 ill-treatment at the point of his return. The judge is then entitled to assume, for the purposes of the hearing before him or her, that what is required will be done."