ON APPEAL FROM QUEEN'S BENCH DIVISION,
MR JUSTICE COLLINS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE LLOYD
| Secretary of State for the Home Department
|- and -
Raza Husain QC and Amanda Weston (instructed by Birnberg Pierce & Partners) for the Respondent
Hearing date : 18 February 2011
Crown Copyright ©
Lord Justice Pill :
"The UK Border Agency ["The Agency"] has reason to believe that you have been involved in extremist radicalisation and facilitation. Your presence in the UK would therefore be considered not conducive to the public good for reasons of national security."
Representations were made to the Agency on the respondent's behalf.
"You have the right to appeal against the decision to cancel your indefinite leave to enter in the United Kingdom under section 82(1) of the Nationality, Immigration and Asylum Act 2002 ["the 2002 Act"]. For the purpose of the appeal the decision to cancel leave is treated as a decision under section 82(2)(e) of the 2002 Act. Any appeal against this decision may only be brought from outside the UK."
"There is no statutory right of appeal against the Home Secretary's decision to exclude [the respondent] from the United Kingdom, but he is entitled to an out country appeal against the decision to cancel his ILE."
The statutory scheme
"E+W+S+N.I.(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—
(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,
. . ."
Mr Eicke accepts that the "cancellation" directed in the Secretary of State's letters of July 2010 is a "variation" of the right to enter within the meaning of section 82(2)(e) of the 2002 Act. It gives rise to a right of appeal under that paragraph. The letter of 28 July also stated:
"The Home Secretary has certified under section 97(3) of the Nationality, Asylum and Immigration Act 2002, the decision to cancel his ILE on the basis that it was taken wholly or partly in reliance on information which in her opinion should not be made public in the interest of national security. This means that should [the respondent] wish to appeal against the decision, the appeal will be heard by the Special Appeals Immigration Commission (SIAC)."
"(1) This section applies if a person's leave to enter or remain in the United Kingdom—
(a) is varied with the result that he has no leave to enter or remain in the United Kingdom, or
(b) is revoked.
(2) The person's leave is extended by virtue of this section during any period when—
(a) an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 could be brought, while the person is in the United Kingdom, against the variation or revocation (ignoring any possibility of an appeal out of time with permission), or
(b) an appeal under that section against the variation or revocation, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act).
(3) A person's leave as extended by virtue of this section shall lapse if he leaves the United Kingdom."
"(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), (ha) and (j)."
"(3) This section also applies to an appeal against refusal of leave to enter the United Kingdom if—
(a) at the time of the refusal the appellant is in the United Kingdom, and
(b) on his arrival in the United Kingdom the appellant had entry clearance."
Sub-sections (3A), (3B) and (3C) qualify the application of section 92(3) in a manner not material for present purposes.
"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
(b) . . ."
Judgment of Collins J
"The question then is what is the effect of section 3D(2)(a) of the 1971 Act, because that suspends the effect of a cancellation for a period during which an appeal could be brought while the person was in the United Kingdom. The time limits for appealing differ depending on whether it is an out of country or an in country appeal. If it is an out of country appeal the time for notice is 28 days. If it is an in country appeal it is 10 days, and thus the effect of sub-section (2)(a) is, in my judgment, to provide a 10 day period during which the decision to cancel is to be regarded as suspended. That will enable someone who does have, such as this appellant, indefinite leave to enter, to enter and pursue his appeal in country. When one thinks about it that is surely fair. Miss Weston [for the claimant] gave me the example in her skeleton of the possibility of someone going on a short holiday, leaving the country as one is entitled to do for a short period, and the decision to cancel being made when he is outside the United Kingdom. If that could have the effect of preventing what would otherwise be an in country appeal, it is capable of being unfair. While one would hope that a power would not be exercised in such effect, it certainly gives the opportunity to the authorities to avoid an in country appeal in circumstances where that would be unfair to the individual concerned. It seems to me the obvious and natural construction of 3D(2)(a) is the suspension of the effect of the cancellation, or rather the extension by virtue of 3D(2) of the leave to enter, does extend for that relatively short period to enable the individual to make arrangements, if he so wishes, to return to the country in order to pursue his right of appeal."
Collins J upheld the claim for judicial review and stated that if the appellant "comes to this country within the next 10 days he must be allowed to enter".
"However, the decision to curtail [in rule 323] does not take effect while an appeal could be brought or is pending. UKBA would therefore be unable to prevent someone returning to the UK whilst their appeal was pending or until the time limit for appealing had passed as they would have continuing leave."
In a somewhat elaborate argument, which appeared to depend on the difference between the word "curtail" in the rule and the word "cancel" in the guidance, and on the application of the guidance to refugees, Mr Eicke sought to argue that the guidance did not apply in the present situation. If it did, he submitted, the guidance was wrong. I do not propose to rely on the guidance when construing the statutes and do not find it necessary to consider Mr Eicke's submissions on this point in any more detail.
"A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation." (Emphasis in original)
The express language permits no such implication, submits Mr Husain.
(a) While I see the force of the submission that the Secretary of State should be permitted to exclude a person whose entry is perceived not to be conducive to the public good for reasons of national security, the statutory wording does not provide a power to exclude in the limited circumstances contemplated. I can find no basis for an underlying understanding that the provisions should be read as the Secretary of State requires.
(b) The presence of the words "while the person is in the United Kingdom" in section 3D of the 1971 Act do not require the person to be in the United Kingdom when the Secretary of State takes her decision to vary the right to enter. The duration of the extension under section 3D(2) is governed by the period when the "appeal" under section 82(1) of the 2002 Act can be brought and not by the date of the Secretary of State's decision to vary. I cannot read the sub-section as requiring the person exercising the right of appeal to be in the United Kingdom at the time of that decision. That wording is mirrored in section 92 of the 2002 Act by which presence in the United Kingdom is related to the "appeal" and not to the "decision" which gave rise to the appeal.
(c) Reliance on section 3D(3) of the 1971 Act is misplaced. The loss of the right of appeal if a person leaves the United Kingdom during the period of extension is unsurprising. It throws no light on the right of a person already outside the United Kingdom when the Secretary of State takes her decision.
(d) The very limited period of 10 days from receipt of the variation, within which the person must exercise his in country right of appeal is not, in my judgment, inconsistent with the respondent's case. This is a context in which the in country right of appeal, a valuable right, needs to be exercised promptly whether or not the person is within the United Kingdom when notified of the decision.
Lord Justice Rix :
Lord Justice Lloyd :