ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE BEATSON
CO/8648/2010; CO/10681/2010; CO/6369/2010
 EWHC 627 (Admin)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SULLIVAN
LORD JUSTICE DAVIS
| THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
|AS (SOMALIA), CW (JAMAICA) and SD (ZIMBABWE)
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Alasdair Mackenzie (instructed by TRP Solicitors) for the Respondents AS and CW
Hearing date: 31 October 2011
Crown Copyright ©
Lord Justice Sullivan:
The Statutory Scheme
"(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 ."
"83 Appeal: asylum claim
(1) This section applies where a person has made an asylum claim and
(a) his claim has been rejected by the Secretary of State, but
(b) he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).
(2) The person may appeal to the Tribunal against the rejection of his asylum claim."
"83A Appeal: variation of limited leave
(1) This section applies where
(a) a person has made an asylum claim,
(b) he was granted limited leave to enter or remain in the United Kingdom as a refugee within the meaning of the Refugee Convention ,
(c) a decision is made that he is not a refugee, and
(d) following the decision specified in paragraph (c) he has limited leave to enter or remain in the United Kingdom otherwise than as a refugee.
(2) The person may appeal to the Tribunal against the decision to curtail or to refuse to extend his limited leave."
"(3) An appeal under section 83 must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention."
"(4) An appeal under section 83A must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention."
The case of AS
"28. In the light of all the evidence available, it has been concluded that you have not established a well-founded fear of persecution and that you do not qualify for asylum. Your asylum claim is therefore refused under paragraph 336 of HC395 (as amended) .."
"Your client's claim for asylum in the United Kingdom has been carefully considered within the Immigration and Nationality Directorate of the Home Office and it has been refused for the reasons given in the Reasons for Refusal letter, a copy of which is attached for your records. Your client's claim has been recorded as determined on 15/11/2006. However, a decision has been taken that it would be appropriate, because of the particular circumstances of your client's case, to grant him leave to remain in the United Kingdom on a discretionary basis outside the Immigration Rules for a specified period.
This decision is not an appealable decision under section 82 of the Nationality, Immigration and Asylum Act 2002."
The case of CW
"34. In the light of all the evidence available, it has been concluded that you have not established a well-founded fear of persecution and that you do not qualify for asylum. Your asylum claim is therefore refused under paragraph 336 of HC395 (as amended) and has been recorded as determined on 10th August 2004."
"You have applied for asylum in the United Kingdom. The Secretary of State has decided to refuse your application for the reasons set out in the attached notice.
You have not sought entry under any other provision of the immigration rules.
I therefore refuse you leave to enter the United Kingdom. If your leave was conferred by an entry clearance, this will also have the effect of cancelling your entry clearance.
I propose to give directions for your removal to Jamaica by flight at a date and time to be notified."
The Notice then explained CW's right to appeal under section 82, and said that a notice of appeal on all grounds had to be received by 18th August 2004.
"An application which does not meet the criteria [for the grant of asylum] set out in paragraph 334 will be refused."
(a) CW had made an asylum claim in June 2004;
(b) that asylum claim had been rejected (there being, as was accepted, no difference for this purpose between a refusal and a rejection) by the Secretary of State in the RFRL dated 10th August 2004; and
(c) the ILR granted to CW on 9th March 2010 was a grant of leave to remain in the UK for a period exceeding one year;
he nevertheless submitted that CW was not entitled to appeal under section 83 because when CW's asylum claim was rejected in 2004, it was not simply rejected (as in the case of AS), it was rejected "in the context of an immigration decision against which there was a right of appeal under section 82."
" .Instead of providing an overall express regime for each application to be recognised as a refugee to be determined, Parliament has adopted a piecemeal approach and provided for the question of refugee status to be determined in a variety of specific situations connected with action taken under the Immigration Acts."
"Parliament intended that section 8 would permit appeals in relation to refugee status insofar as the language of the section permitted it" (para. 74).
The section therefore provided a right of appeal against the refusal of asylum to someone who had been granted leave to remain.
"We are seeking the meaning of the words which Parliament has used."
See Lord Nicholls of Birkenhead at pages 396F-397A of R v Secretary of State for the Environment, Transport and the Regions ep. Spath Holme Ltd.  2 AC 349, citing Lord Reid in Black-Clawson International Ltd v Papierwerks Waldhof Aschaffenburg AG  AC 591 at p. 613.
"The majority of those that claim asylum are keen to ensure that they are able to remain in the UK lawfully and are content to accept the grant of ILR as conferring upon them a lawful basis upon which they may remain in the UK."
If the majority of those who claim asylum are truly content with the grant of ILR, then only a minority might wish to appeal under section 83.
Lord Justice Davis:
Lord Justice Maurice Kay: