COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
SENIOR IMMIGRATION JUDGE D E TAYLOR
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACOB
LORD JUSTICE LLOYD
| T E (ERITREA)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Hearing date: Thursday 15 January 2009
Crown Copyright ©
Lord Justice Sedley :
"Before a decision to remove under section 10 is given, regard will be had to all the relevant factors …"
By §395D removal is prohibited if it would violate Convention rights. It follows, in the Home Secretary's submission, that unless and until there has been a refusal to vary and any appeal against the refusal has been dismissed, a person in the position of the appellant is not an overstayer, with the result that the Home Secretary cannot yet consider removing her and that the appellant cannot, or not yet, rely on §395C (or presumably §395D) to resist removal.
"are only to be considered under paragraph 395C in the context of a decision to remove under section 10. It cannot therefore be open to the Appellant to argue that it is not in accordance with the law for the Secretary of State not to consider those factors in relation to a variation appeal. Whether the effects of the Rules are rational or irrational is not a matter for me."
This puts with precision the issue which we now have to decide.
"It seems strange that the respondent is content for persons in the appellant's position to be able to have 'another bite at the cherry' rather than sorting out all the issues at this stage. That said, there may be very good reasons why the respondent adopts this position."
"16. There are other statutory provisions to which I will refer in addressing counsel's submissions. Evidently the court has to decide whether an "immigration decision" consisting in a refusal to vary leave, which is appealed pursuant to 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 the 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?
17. There is first, as it seems to me, a consideration of public policy which illuminates the construction of the subsection. As the Secretary of State submits by Miss Grey of counsel, once a person's appeal against a refusal to vary his leave is dismissed, he must leave the United Kingdom. If he does not, he commits a criminal offence (Immigration Act 1971, section 24(1)(b); the 2002 Act, section 11). His entitlement to state benefit is also affected. If another employs him, that other is guilty of a crime (Asylum and Immigration Act 1996, section 8). 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 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. However, the position may be even starker than this. Given what I have said so far, it might be thought that an appellant who after an unsuccessful variation appeal waits until removal directions are set, will at that stage, at any rate, have a clear right of appeal exercisable from within the United Kingdom in which he could deploy his human rights claim. The appeal would lie under section 82(2)(g), which I have read. But that is not necessarily the position. By force of section 92 of the 2002 Act, a section 82 appeal against an immigration decision of the kind specified in section 82(2)(g) can only be maintained from abroad, unless a human rights claim has been made within the meaning of section 113; that is, it must have been made in the place designated by the Secretary of State."
He went on to say at §22-3:
"22. It is true, judging anyway from the terms of the decision letter, that article 8 had not at that stage distinctly, been raised; it was raised later before the adjudicator. But article 8 issues might readily have been raised; and there is plainly force in this submission that, depending on the particular facts, human rights issues are indeed likely to be integral to the process of deciding whether an immigrant's leave should or should not be varied.
23. There is a further point. It is clear that the legislation leans in favour of what are called "one-stop appeals". Miss Grey refers to sections 96 and 120 of the 2002 Act. I will not set them out; it is enough to say that successive appeals under section 82 are discouraged by procedures for the service by the Secretary of State of a "one-stop" notice on an appellant, requiring him to state all the reasons why he should be entitled to remain in the United Kingdom, and he may not subsequently raise such issues in a later appeal if the Secretary of State certifies that he should have or did or would have been permitted to raise them in an earlier appeal. Such a notice was given in this case, accompanying the Secretary of State's refusal to vary the appellant's leave (page 93 of the bundle)."
Lord Justice Jacob
Lord Justice Lloyd
"We are appealing the decision to refuse our client Immigration under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 on the following grounds as set out in Section 84.
84(a) The decision is not in accordance with the Immigration Rules.
84(c) The decision is unlawful as it is incompatible with my rights under the European Convention on Human Rights, namely Article 8.
84(e) The decision is not in accordance with the law.
84(f) The Secretary of State's discretion under the Immigration Rules should have been exercised differently.
84(g) Removal from the UK as a result of the decision would breach the UK's obligation under the 1951 Refugee Convention and/or be incompatible with my rights under the European Convention on Human Rights.
The Appellant submits that she has a well founded fear if returned to Eritrea on account of her mixed ethnic origins and her families problems and also that she may be accused of evading Military Service. She is at the age when she should have completed her Military Service.
The Appellant will also submit that if returned she does not wish to undertake any Military Service, she believes that she will be imprisoned.
The Appellant will submit she has tried to contact the Red Cross to establish her families' whereabouts but they have been unable to trace them.
The Secretary of State believes the Appellant will be able to return to Eritrea and live with her father. The Appellant does not know the whereabouts of her father, he was arrested and taken by the Ethiopian Authorities. She could not reside with him in Eritrea.
The Appellant will submit that she would have problems if returned to Eritrea on account of her mixed race.
The Appellant will submit that she has established a private life in the United Kingdom. She has lived here now for 5 years, she has attended College and is now working, she is an Admin Assistant for Everyday Language Solutions. She also acts as an Interpreter. During her time in the UK she has also undertaken many voluntary tasks and has established a close network of friends.
To return her to Eritrea would breach her Article 8 rights.
Further grounds to follow."
No other grounds did follow, so far as we know.
"11. Miss Khan told me at the commencement of the hearing that Miss Lonsdale, on behalf of the Respondent, had informed her that [the Appellant] will have a full right of appeal when removal directions are set under Section 10 of the Immigration and Asylum Act 1999, and that the appeal would not be certified under Section 94 of the Nationality, Immigration and Asylum Act 2002.
12. Miss Lonsdale confirmed that all matters in relation to Rule 395C will be considered when a decision is made to issue removal directions under Section 10. In her submission the grounds were misconceived.
13. Miss Khan submitted that the factors in Rule 395C should be decided straightaway, and she asked me to make a decision that the Secretary of State had not acted in accordance with the law in not considering those factors in the context of the variation appeal. The appellant would suffer disadvantage in the future if she did become an overstayer and then wished, for example, to apply for entry clearance. In her submission the Secretary of State's position was that the appellant would be forced to become an overstayer before her application under 395C could be considered, and it was irrational for the law to uphold any principle which invited people to become overstayers."
"15. The above factors are only to be considered under paragraph 395C in the context of a decision to remove under Section 10. It therefore cannot be open to the Appellant to argue that it is not in accordance with the law for the Secretary of State not to consider those factors in relation to a variation appeal. Whether the effects of the Rules are rational or irrational is not a matter for me.
16. The Secretary of State has undertaken in this case to consider the relevant factors, in their proper context, and has said that any refusal will attract the right of appeal. The appellant has obtained the remedy she seeks in the grounds.
17. The grounds rely upon EO for the proposition that the Tribunal should first consider whether the decision-maker took into account the factors set out in paragraph 395C and whether a discretion was exercised on the basis of them. However, EO was concerned with the scope of deportation appeals and appeals against the issue of removal directions under Section 10 of the 1999 Act. This is a variation appeal and therefore EO does not apply."
"395C. Before a decision to remove under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State including:
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person's behalf.
In the case of family members, the factors listed in paragraphs 365-368 must also be taken into account."
"40. As we have already indicated, the part of the Immigration Rules dealing with deportation deals also with "administrative removals", that is to say removal of those liable to removal under s10 of the 1999 Act. Such persons are most often those who have overstayed their leave. We set out the relevant paragraphs of the Immigration Rules in the form which they had from 20 July 2006. [The rules are then quoted.]
41. These provisions of the Immigration Rules have had effect since 2 October 2000. In their case, the change on 20 July 2006 was certainly not substantive. The change was to insert into paragraph 395C the words which, as we have seen, were before that date in paragraph 364. Until then, paragraph 395C had simply contained a reference to those words in paragraph 364. Following their deletion from paragraph 364, they needed to be set out in full in paragraph 395C.
42. The "old learning", if we may so express it, on those subject to removal under s 10 was that their rights of appeal were severely limited. They could appeal on the ground that they were not in truth liable to removal, or on the ground that their removal would breach the Refugee Convention or the Human Rights Convention, but little else was available to them. During the course of argument relating to the scope of the right of appeal against deportation decisions, it emerged that the Secretary of State's view was that the scope of an appeal against a decision to remove under s10 should not be so narrowly construed. After taking instructions again over the short adjournment, Mr Eicke confirmed that the Secretary of State's view was that in an appeal against a decision to issue removal directions under s10 of the 1999 Act (which is an appealable decision under s82(2)(g) of the 2002 Act) all the grounds of appeal set out in paragraph 84(1) may be deployed, including that relating to the exercise of discretion.
43. We agree with this reading of the statutory provisions; but this is also an important concession. That is why we record it here, even though it has not immediate bearing on the matters we have to decide.
44. So far as the appellate process is concerned, two conclusions follow from it. The first is that, where the decision to give removal directions under s10 does not clearly demonstrate a proper consideration of the matters set out in paragraph 395C and the exercise of a discretion to make the decision, the decision will be one which is challengeable on the ground that it is not in accordance with the law, and the result should normally be that an appellant's appeal is allowed on that basis only, leaving the Secretary of State to make a new and lawful decision in accordance with the Immigration Rules.
45. Secondly, if the decision was procedurally proper and was one which was open to the Secretary of State to make, the appellant can nevertheless succeed in an appeal by showing that the discretion to make the decision, conferred by s10 of the Act and appearing also in paragraphs 395A to D of the Immigration Rules, should have been exercised differently.
46. We do, however, need to point out in this context that a decision that a person is to be removed by way of directions under s10 does not carry a general right of appeal from within the United Kingdom. That is because s82(2)(g) is not in the list of immigration decisions carrying that right in s92(2). But there is an in-country right of appeal under s92(4) if the appellant "has made an asylum claim, or a human rights claim, while in the United Kingdom". "Asylum claim" and "human rights claim" are phrases defined in s113 and are subject to amendments by the 2006 Act which have not yet come into force. What does appear to be clear, however, is that, for example, an overstayer who claims asylum and is refused, and appeals, may, in addition to grounds of appeal relying on his rights under the Refugee Convention or the European Convention on Human Rights, deploy an argument that, even if he has no right to be in the United Kingdom, the Secretary of State's discretion should have been exercised in such a manner as to allow him to stay."