COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
SENIOR IMMIGRATION JUDGE ALLEN
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE WILSON
| MA (SOMALIA)
|- and -
|SECRETARY OF STATE FOR HOME DEPARTMENT
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Mr Jonathan Auburn (instructed by Treasury Solicitors) for the Respondant
Hearing date : Thursday 16th 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 Somalia."
"Either the Appellant is a Kenyan Bajuni or she is a Somalian Bajuni from one of the islands who has lived for [m]any years in Kenya. I accept that the Appellant is a Bajuni but I do not accept that she is from Somalia…For the reasons given I do not accept that the Appellant is from Somalia."
On that basis, IJ Parkes dismissed both her asylum and her human rights (humanitarian protection) appeals. IJ Parkes plainly considered that the one fell with the other. Indeed he only mentioned the refusal notice dated 10 May 2007, and there is no sign that he was asked to consider any ramifications of the decisions dated 25 May 2007.
"…he did not accept that the appellant is a Somalian Bajuni. As Mr Smart [the HOPO] pointed out, in the light of that finding, the fact that the Immigration Judge thought that the appellant is a Bajuni and most likely from Kenya, does not place her at risk on return to Somalia since the Secretary of State will have to rethink removal in the light of the Immigration Judge's conclusions."
It is not entirely clear how the argument proceeded before SIJ Allen with relation to the decision of 25 May 2007 to remove MA, nor exactly what kind, if any, of assurance was given on behalf of the Secretary of State about not returning her to Somalia, but at least SIJ Allen began with a reference to that decision in his first paragraph.
The facts relating to ground one and MA's nationality
"10. On the subject of languages the Appellant speaks no Somalian. In the Danish and Dutch report of 2000 it was indicated that it would be expected that all Bajuni would know at least some Somalian. However in the Danish report of January 2004 that issue was treated in a less dogmatic fashion and it was stated that those from Kismayo would be more likely to speak it than those from the islands.
11. The fact that the Appellant is able to understand some English, even to the extent of being able to answer questions in it, is an odd feature. Her suggestion in giving evidence that she was taught some English by the Agent does not, in my view answer the question as to how she can do so.
12…It is impossible for the Appellant to have picked up [from the agent] more than one or two basic words of English and so her ability to speak it enough to answer any questions (and the fact that she answered questions is not disputed) has to indicate a far greater exposure than she has admitted.
13. On the Appellant's account she is uneducated and lived all her life on a small island off the coast of Somalia. There is nothing in the reports that I have mentioned that suggest that a person in that situation would be expected to know any English. A more likely explanation is that the Appellant has spent time in Kenya and mixed with English speakers.
14. The Kenyan connection is reinforced by the Appellant describing a Kenyan dance, the Chakacha, when giving details about Bajuni customs. The objective material does not bear out the Appellant's description of this dance as a Bajuni custom and I believe that she has encountered it in Kenya and not on the island of Koyoma. Other traits of Bajuni customs were not mentioned…
16. The objective material and both of the reports referred to make it clear that the Bajuni have suffered particularly badly over the years. Many have had to give up their traditional role of fishing with many homes being looted and fishing vessels being taken away. Some returnees have set up again but their circumstances are constrained and pay 50% of their revenue to the clans that occupy their land.
17. I do not believe that the Appellant's father would be able to raise sufficient funds to pay the Appellant's agent fees to bring her to the UK by the sale of two wooden boats. The Appellant's description of their circumstances in the island is at odds with the conditions described in the 2004 Report and further undermines the Appellant's credibility.
18…I note that the Appellant did not claim asylum at the airport and was driven a considerable distance to claim asylum. I believe that such a journey would have been undertaken to disguise the place that the Appellant flew from and make tracing her journey correspondingly difficult.
19. The evidence does not make a clear assessment of the Appellant's background easy. The fact that she was able to give geographical descriptions of the Bajuni areas and appears to speak a fair amount of Bajuni indicates that she is a Bajuni. Against the claim to be from Somalia is the fact that she speaks no Somalian (but living in an island this is less surprising), does speak some English and described a Kenyan dance as a Bajuni custom.
20. Either the Appellant is a Kenyan Bajuni or she is a Somalian Bajuni from one of the islands who has lived for [m]any years in Kenya. On the evidence available I accept that the Appellant is a Bajuni but I do not accept that she is from Somalia. Her lack of Somali is an indicator of that but more important is her ability to speak some English and her use of Kenyan customs in describing Bajuni culture. There were other significant cultural practices mentioned in the objective literature that the Appellant did not mention in any of the accounts she gave.
21. This is underlined by the fact that while she could give some geographical descriptions of the geography of the area in Somalia where the clan live her description of life there and her father's activities was inconsistent with the objective material and could not have been given by one who had lived there."
"15…bearing in mind that the appellant said that she did not speak or understand English, and that English could not have expected to have been spoken on Koyoma, I consider that the Immigration Judge was entitled to have concerns about this factor. Clearly it could not be a determinative issue, but equally clearly it was a relevant matter to take into account."
As for the description of the Chakacha as a Bajuni custom, he said –
"16…it is in fact, on the objective evidence, a Kenyan dance. It is also relevant to bear in mind, as the Immigration Judge did, that there were other significant cultural practices mentioned in the objective evidence that she did not refer to in any of the accounts that she gave. He rightly attached little weight to the fact that she does not speak Somali since the evidence shows that living on an island made this less surprising."
"17. The Immigration Judge, at paragraph 16, noted the problems the Bajuni have experienced over the years, including that many have had to give up their traditional role of fishing, with many homes being looted and fishing vessels being taken away…[or] they paid half of their revenue to the clans who occupied their lands. It was with reference to this evidence that he went on to say that he did not believe that the appellant's father would be able to raise sufficient funds to pay for the agent's fees to bring her to the United Kingdom by the sale of two wooden boats. This, I read, as the reasoning behind his conclusion that the appellant's description of their circumstances on the island was at odds with the conditions described in the 2004 report and had further undermined her credibility…"
As for MA's account of coming to this country, he said:
"18. He also went on to take into account the lack of credibility, as he saw it to be, of the appellant's claim not to have known what airline she travelled on or the details of the flight…"
"19. In my view the Immigration Judge came to conclusions which he was entitled to come to on the evidence before him. He did not attach excessive weight to the issue of the appellant's ability, as clearly was the case, to speak some English, bearing in mind on the one hand that no English is spoken on the islands or no evidence was given that English was spoken and that her exposure to the agent teaching her some English during a very limited period did not adequately explain that…"
Ground two: should the AIT have allowed MA's human rights appeal?
"23. For the reasons given I do not accept that the Appellant is from Somalia. There is no evidence to support her claim to be in need of international protection on the basis of asylum o[r] Humanitarian Protection. There is nothing in the papers that raises a claim under the ECHR independently."
That last sentence may, perhaps, have been accurate at that time.
"A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that 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…"
This court gave to the language "any decision…relating to that person's entitlement to enter or remain" a broad interpretation, rather than the narrower interpretation espoused by the Secretary of State.
"38. The Secretary of State seeks to meet this [the argument that the narrower interpretation would create a jejune right of appeal] 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 Dumferline in Scott v. Scott  AC 417, 477 classically pointed out, "To remit the maintenance of constitutional rights 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 sections 6 and 7 of the Human Rights Act 1998. What possible legislative policy could this represent? The one-stop policy?"
Sedley LJ went on (in para 39) to give a graphic example of the much greater security which a simple and unilaterally invoked right of appeal from removal directions gave to a party on the eve of removal in the light of some last-minute danger.
"Directions will be given for your removal to Somalia as this is the country of which you claim to be a national. This has been done solely in order to enable you to appeal to an Adjudicator…If you appeal…and the Special Adjudicator also concludes that you are not Somali, we will seek to establish your true nationality."
Subsequently a "Notice of refusal of leave to enter after refusal of asylum" contained the following paragraph:
I have given/propose to give directions for your removal by a scheduled service at a time and date to be notified to (Country/Territory) SOMALIA."
The adjudicator found that the appellant was not a Somali and therefore rejected both his asylum and human rights appeals, but continued:
"That is not to say that I believe the appellant should be returned to Somalia. Such a course would be quite wrong as he is not a national of that country, the more so bearing in mind the evidence relating to the conditions there."
"20…Although the notice made specific reference to "Removal Directions", it did so ambiguously, in that the two alternatives, namely "I have given/propose to give directions…" remained unresolved. But taken together with the letter it seems to me to be clear that the Secretary of State was not intending to give directions at that stage, but was intending to revisit the matter in the light of the results of any appeal. This is consistent with the fact that the right of appeal was identified in the notice as a right under Section 69(1) of the 1999 Act, namely an appeal against the decision to refuse the appellant leave to enter…"
Latham LJ went on in para 21 to accept that section 65(1) gave a right of appeal against removal directions as such ("even though not expressly, because such directions clearly relate to the right of the would-be immigrant to remain"). But that was not as yet in issue. He continued –
"22. In one sense that resolves the appeal…As the Tribunal held, the clear statement of intent by the respondent to reconsider the matter in the light of any findings made on the appellant's appeal, meant that no question arose, or arises now, as to whether any decision has been made which is capable of affecting his human rights so as to entitle him to appeal under section 65(1) of the 1999 Act."
"The fact that his claim to be a Somali was rejected was in itself sufficient to determine the issues in this appeal…the appellant had simply failed to establish his status as a refugee…which prevented him on the facts of this case, and in the absence of directions that he be removed to Somalia which could have been the subject of an appeal under section 65(1) of the 1999 Act, from establishing any case under the European Convention…The issue might have to be revisited in relation to any appeal or other challenge to removal directions once given. But for my part I do not consider that it would be right to pre-empt that issue."
Pill and Arden LJJ agreed with Latham LJ.
"63. The country specified in the Notice is not material for the determination of whether or not the Claimant is a refugee…If a claimant cannot establish that he is a refugee, that question [under Articles 32 or 33 of the Refugee Convention] does not arise; MY (Somalia)*.
64. The country specified is obviously critical to the ground of appeal, consequent upon removability being established, that removal would breach either Convention. It is the country of removal which is capable of giving rise to the breach rather than removal in the abstract. The purpose of the specification of the country is to focus on the consequences of removal…
65. If removal to the country specified would involve a breach of either Convention, the appeal would be allowed. It could not be dismissed on the basis that removal would be unlawful to that country because of the 1971 Act, would not therefore take place and so there would be no risk. Circumstances change any way. If the Secretary of State were to decide that he could remove the Claimant to another country, he would have to issue a fresh and appealable decision. Following the allowing of the appeal against his first decision…
68. The statutory structure is intended to give a full factual merits appeal in relation to risk on return to the country proposed for removal. It is not intended to give an appeal in relation to the first country proposed and to provide for a review challenge only in relation to any subsequently proposed…
69. We prefer this analysis to the possible alternative canvassed in paragraph 53 of MY (Somalia)* to the effect that fresh removal directions for a different country might not give rise to a fresh appeal but would lead only to Judicial Review."
"78. The remaining possibility is that the Notice of Decision should refer to countries in the alternative, perhaps with the reason why set out in the accompanying letter. In this case the Notice might have said that the Secretary of State intended to return the Claimant to Iran but if that were to involve the breach of either Convention, he intended to return him to Iraq. The appeal could then be allowed if neither country were acceptable because of the Conventions and dismissed if either was. The decision would make clear whether removal to one country alone would involve no breach of Convention rights.
79. Again this course has something to commend it in practical terms; but we do not regard it as the correct solution without much further consideration. The appeal determination has to be clear as to its consequences. Even if there were no difficulty in saying that the appeal was dismissed because removal in consequence of the Secretary of State's decision would be to the safe country rather than to the unsafe one, the Notice of Decision would have to be read with that determination in order for its consequences to be understood. We think that the Secretary of State Decision Notice should be clear as to its consequence when enforcement comes, it should be understood simply with the knowledge that the appeal against it has been allowed or dismissed and should not require the determination of the appeal body to be with it or understood properly before the consequences for the Claimant are clear. We think that the statutory framework reflects our provisional view on this.
80. It follows from what we have said that the Notice of Decision should refer only to one country. If the appeal is allowed but the Secretary of State thinks that removal to another country would be within the Conventions, he can take a fresh appealable decision. If the appeal is dismissed and the country of the proposed removal falls outside the Schedules and removal cannot therefore take place, the Secretary of State cannot issue removal directions for another country without necessarily generating a fresh appealable immigration decision.
81. Here, Iraq does not fall for consideration upon the remittal for reconsideration…
82. This is different from the position in MY (Somalia)*, where the Notice and accompanying letter were seen as containing a two stage decision that removal should be to Somalia, but not if he were not a Somali national; see paragraphs 47 to 52.
83. We are not intending to preclude more than one country being referred to, were that necessary, in those circumstances where return is via a transit country where that country nevertheless has to be entered. That sequence gives rise to different problems from the question of alternative or contingent countries of proposed removal."
"(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."
"39. In my judgment Kariharan has to be read as a decision on the true construction of section 65(1) of the 1999 Act. The difference between section 65(1) of the 1999 Act and section 82(1) of the 2002 Act is that an 'immigration decision', that is the decision giving a right to appeal, is defined in section 82(2) as covering some 12 different types of decision not one of which is removal directions. Section 65(1) is dealing with a very specific situation.
40. For Mr Cox to succeed he has to persuade the court that the argument in Kariharan has survived the change in the legislation and the fact that removal directions are not listed in section 82(2). In my judgment he has failed to do so. Indeed it was suggested that the change in the law removing 'removal directions' from within the definition of 'immigration decision' may well have been precipitated by Kariharan…
45. 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 where 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.
46. In my view the appellate tribunal's jurisdiction attaches to an immigration decision as defined in section 82(2) of the 2002 Act. In order to found an appeal an appellant would have to challenge one or more of the decisions specified in subsection (a) to (k). If the Secretary of State chose to give removal directions at the same time as and linked to, for example the refusal of leave to enter the United Kingdom (which is not, as I understand it his ordinary practice at the present time) then it seems to me that commonsense dictates that both should be considered at the one appeal. That would be entirely in keeping with the policy of the legislation. It also accords with the approach of the Court in Kariharan. Furthermore, I regard the wording of section 84(1)(g) as wide enough to permit this.
47. 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 later occasion. In such circumstances the remedy for unlawful directions would be judicial review. It is, however, unnecessary for present purposes 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.
48. 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."
"17. There is, 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 alive on his removal, surely faces a very unsatisfactory choice. Either he leaves the United Kingdom, as the criminal law says he must, 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."
"(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 (whether or not by virtue of section 85(1)), and
(b) any matter which section 85(1) requires it to consider.
(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)…"
He therefore submitted that the human rights issue of a return to Somalia must be determined and the appeal allowed (and the decision quashed) if the decision was not in accordance with law because of breach of MA's human rights on return to Somalia. In my judgment, however, such statutory language does not force the tribunal to render an academic decision on a matter which has become moot. If in such circumstances (and assuming in MA's favour that her return to Somalia would be a breach of at least article 3) the court has to decide whether the decision to remove is lawful or not, when the Secretary of State formally states that she does not intend to remove MA to Somalia and the consequences of such a proposal become academic and moot, it seems to me that it must be right to uphold the decision to remove and leave for the future any new question of removal to a different destination for the time when it occurs and in the light of circumstances then prevailing: at any rate provided there are sufficient safeguards for the applicant in the meantime. The alternative of proceeding to address a moot issue and, if that issue is decided in the applicant's favour, of allowing the appeal and quashing the decision to remove would seem to me to be unrealistic: when the fact is that the applicant has no right to remain.
I also agree.