COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
Mr C M G OCKELTON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SCOTT BAKER
LORD JUSTICE JACOB
| MS (PALESTINIAN TERRITORIES)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr John Paul Waite (instructed by Treasury Solicitor) for the Respondent
Hearing dates : Thursday 30th October 2008
Crown Copyright ©
Lord Justice Rix :
"If you do not appeal, or you appeal and the appeal is unsuccessful, you must leave the United Kingdom. If you do not leave voluntarily, directions will be given for your removal from the United Kingdom to Palestine National Authority."
"78…The immigration decision was lawful as the Home Office was quite clearly entitled to issue such a notice given that the Appellant was an illegal entrant. It was also undisputed that he originated from the PNA – he said so himself – and so the reference to the PNA as the proposed destination was lawful.
79. The notice of immigration decision to remove is not the same as "removal directions". A notice of immigration decision simply gives notice of the country or territory in question that is the PNA. Notice of the country of proposed removal is required by the Notice Regulations. It is somewhat misleading to have the side heading "Removal Directions" on the second page of the notice as this document does not constitute the removal directions.
80. Removal directions are not of themselves immigration decisions under Section 82. The specific provisions for destination appeals relating to removal directions under the Immigration Act 1999 have been removed from the 2002 Act.
81. Can an appeal be brought against the proposed country of removal in the notice of immigration decision on the grounds that the removal direction for that country when given would be outside paragraph 8 of Schedule 2 to the Immigration Act 1971?
82. All this turns on the meaning of immigration decision in section 82, more specifically Section 82(2)(h). The country of proposed destination is not part of the immigration decision. The country is referred to because it affects the said breaches of the UN Convention or the ECHR and is necessary in order to focus the appeal.
83. AS GH found there is no freestanding right of appeal against the removal directions under s82…In accordance with GH if and when issued by the Home Office the removal directions can if disputed be challenged by way of judicial review.
84. If removal to the country specified in the immigration decision that is the Palestinian National Authority would involve a breach of either the UN or the Human Rights Convention, the appeal should be allowed but reference to removal directions of themselves do not give rise to an appeal at this stage as the actual removal directions have not as yet been set."
"9. This is not a case where the appellant can show that any decision to issue removal directions against him as an illegal entrant would be unlawful. He does not challenge the decision that he is an illegal entrant and, although he says that his removal to Palestine would be either unlawful or impossible, it is clear that Palestine is not the country from which he embarked for the United Kingdom, and so there is another possible destination which has not yet been investigated. It is right to say that the Secretary of State, in compliance with the Notices Regulations, specified Palestine as the destination to which removal would be if removal directions were given. But, like GH this is a case in which no removal directions have been given. Unlike GH, however, it is not a case in which the matter with which we are concerned is the consequences of removal as proposed. We are concerned only with the legality of the decision to give removal directions.
10. That, it seems to us, is sufficient to show that the appellant's appeal on that ground was doomed to failure. Mr Ravindran has suggested that the one stop ethos of the 2002 Act is sufficient of itself to include an appeal against the destination in all appeals against removal directions. We reject that submission. We agree entirely, and with respect, with the views expressed by Scott Baker LJ, that the simple appeal against removal directions was deliberately abolished in the 2002 Act. It cannot be revived by the reading suggested by Mr Ravindran. The effect of the 2002 Act, as it seems to us in these circumstances, is that destination is relevant in an appeal on the grounds specified in s84(1)(g), but is [neither] integral to the appeal [nor] relevant to it when the ground is that in s84(1)(e)."
The legislative material
"(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971…"
That is the immigration decision relevant to the present appeal.
"(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."
"(1) A notice given under regulation 4(1)…
(b) if it relates to an immigration decision specified in section 82(2)(a), (g), (h)…of the 2002 Act –
(i) shall state the country or territory to which it is proposed to remove the person…"
By amendment in 2006, the following was added –
"(ii) may, if it appears to the decision-maker that the person to whom the notice is to be given may be removable to more than one country or territory, state any such countries or territories."
That amendment appears to have been Parliament's reaction to the suggestion by the AIT in KF that it would not be possible to specify more than one destination in the notice of decision: see KF at -.
"(i) a country of which he is a national or citizen;
(ii) a country or territory in which he has obtained a passport or other document of identity;
(iii) a country or territory in which he embarked for the United Kingdom;
(iv) a country or territory to which there is reason to believe that he will be admitted."
MS submits that none of these categories could apply to him so as to permit lawful removal directions to the PNA. (i) and (iii) do not apply even in theory. As for (ii), he lacks any passport or document of identity for the PNA. As for (iv), there was evidence before the AIT that the PNA would not admit him without any identification documents of any kind to show his nationality. That is the submission upon which the AIT said they had no need to rule.
"…It cannot now be said that removal directions are an appealable immigration 'decision', in view of the definition and listing of appealable 'immigration decisions'…The language of the 2002 Act is clearly designed to overturn R(Kariharan).
 Section 84 does not permit an appeal on the grounds that the proposed destination is outside Sch 2. Removal in consequence of the immigration decision may or may not breach the European Convention or the Refugee Convention [a reference to ground (g)], but that does not turn on whether the country of proposed destination falls within Sch 2 to the 1971 Act.
 This conclusion is not affected by s 84(2(e); the same question arises as to the content of the 'decision' and whether it includes the specified destination country. The 'decision' does not include the country of destination."
" "…." The purpose of the specification of the country is to focus on the consequences of removal. It is irrelevant for these purposes that removal to the country in question would not be permissible under Schs 2 or 3 to the 1971 Act…
 If the appeal were dismissed on the basis that the removal would not breach either Convention, but if the Secretary of State were later to decide that removal there would not take place because that would not be lawful under the Schedules to the 1971 Act, or even if the removal directions were quashed for the same reason on judicial review, the question arises as to whether the consequential intention to remove the claimant to another country would generate a fresh decision which could be appealed…
 The answer to our mind is that the mere issue of removal directions itself is not the appealable decision and, as we have said, the directions do not afford a specific ground of appeal. But the issue of them for a different country evidences the fact that a different appealable immigration decision must have been taken…"
" In my judgment the first and fundamental matter that is fatal to the appellant's case is that no removal directions have ever been set. Even assuming jurisdiction, there is nothing against which any appeal could bite.
 In my judgment the fact that the 2002 Act does not include 'removal directions' within the description of 'immigration decision' against which there is a right of appeal is determinative of Parliament's wish that there should be no free-standing right of appeal against removal directions. This seems to me to be entirely consistent with the desire to streamline the appellate process in immigration and asylum cases and prevent repeat applications. That, however, leaves open the question of jurisdiction in cases where removal directions are given as part of, or are entirely incidental to, an immigration decision that is itself appealed as falling within section 84(1)(g). Also there may be circumstances in which the Secretary of State adopts a routine procedure for removal and return so that the method or route of return is implicit within the decision to remove. There would obviously be advantages in such cases for all issues, including any arising out of the proposed route or method of removal, to be dealt with at one and the same time…
 What I do not think the present legislation permits is an appeal against entirely freestanding removal directions as would be the case when they are made separately on a latter occasion. In such circumstances the remedy for unlawful directions would be judicial review. It is, however, unnecessary to decide the extent of the tribunal's jurisdiction in circumstances where removal directions are given at one and the same time as an appealable immigration decision , or where there is an established route of return which it is known will be used.
 The present appeal in my judgment fails because no removal directions have been set. The question whether, when they are, there could be a breach of the United Kingdom's international obligations is wholly academic. What directions the Secretary of State eventually decides to give, if any, are a matter for him. If when he gives directions it is contended that they are unlawful because they breach the United Kingdom's international obligations the remedy would be judicial review. There is no right of appeal under the 2002 Act."
" I agree. In particular I agree that what is of fundamental importance in this case is that no removal directions have yet been given. That means that the method of return to the appellant's home area and the route which would be taken in pursuance of such directions are wholly unknown. In such circumstances the appellant is in no position to establish either a well-founded fear of persecution or a risk amounting to a breach of Art 2 or Art 3 of the European Convention, arising solely as a consequence of the method or route of return to his home area."
Sir Mark Potter P agreed with both judgments.
" To put the above point in a slightly different way, in GH it was contended for the Secretary of State that s 84(1)(g) is concerned with removal 'in principle'; but it seems to me that the argument that the appellant would be denied re-entry into the Occupied Territories and that this would amount to persecution or Art 3 ill-treatment relates as much to the principle of his removal (or attempted removal) as does the question whether he would be at risk of persecution or art 3 ill-treatment within the Occupied Territories. Both aspects are central to the case raised under the Refugee Convention and under Art 3, and both fall naturally to be determined in the appeal against the immigration decision rather than by way of a later challenge to removal directions."
"In all appeals against a decision to remove, all the potential grounds of appeal set out in section 84 of NIAA 2002 are available, including the argument that the decision is 'not in accordance with the law', enabling arguments about both whether the condition precedent for removal in each case is met (ie whether the person is in fact liable to removal as a member of the particular category), and whether the specified country of removal is a lawful one [citing Schedule 2 of the 1971 Act]."
Similarly, in para 18.41 it is said –
"That right of appeal has not been reproduced by NIAA 2002, but since one of the statutory grounds of appeal is that 'the decision is…not in accordance with the law', this allows an appellant to allege that there is no power in law to remove the person to the destination specified in the notice."
However, none of the jurisprudence under the 2002 Act discussed above is there cited.
Discussion and decision
Lord Justice Scott Baker :
Lord Justice Jacobs :