ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
IA/01861/2009 & IA/19237/2009
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE SULLIVAN
| RASHID ANWAR and PROSPER ADJO
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Nazir Ahmed (instructed by Messrs Sultan Lloyd) for the 2nd Appellant
Ms Susan Chan (instructed by Treasury Solicitors) for the Respondent
(Mr Benjamin Hawkin (instructed by Messrs Duncan Lewis & Co) for Asnath Pengeyo)
Hearing date: Thursday, 22 July 2010
Crown Copyright ©
Lord Justice Sedley :
Immigration & Asylum Act 1999
10. Removal of certain persons unlawfully in the United Kingdom.
(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if
(a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;
(b) he has obtained leave to remain by deception; or
(c) directions ("the first directions") have been given for the removal, under this section, of a person ("the other person") to whose family he belongs.
(8) Directions for the removal of a person given under this section invalidate any leave to enter or remain in the United Kingdom given to him before the directions are given or while they are in force.
Nationality, Immigration and Asylum Act 2002
82. Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal [to the Tribunal] .
(2) In this Part "immigration decision" means
(c) refusal of a certificate of entitlement under section 10 of this Act,
(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 leave to enter or remain,
(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,
(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,
(g) a decision that a person is to be removed from the United Kingdom by way of directions under [section 10(1)(a), (b), (ba) or (c)] of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom),
[(ha) a decision that a person is to be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave),]
(j) a decision to make a deportation order under section 5(1) of that Act, and
(4) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.
84. Grounds of appeal
(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds
(a) that the decision is not in accordance with immigration rules;
(b) that the decision is unlawful by virtue of section 19B of the Race Relations Act 1976 (c. 74) (discrimination by public authorities) [or Article 20A of the Race Relations (Northern Ireland) Order 1997] ;
(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;
(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;
(e) that the decision is otherwise not in accordance with the law;
(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;
(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.
92. Appeal from within United Kingdom: general
(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.
(2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f) and (j).
(4) This section also applies to an appeal against an immigration decision if the appellant
(a) has made an asylum claim, or a human rights claim, while in the United Kingdom, or
"As was pointed out in CD, it seems little short of astonishing that the respondent should seek to apply such legislation to a student with an exemplary past record who has fallen foul of a failing college."
The decision to take the point
The immigration decision
Mr Anwar's case
Mr Adjo's case
Lord Justice Lloyd:
Lord Justice Sullivan: