England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand London, WC2A 2LL
		17 December 2015

LORD JUSTICE SALES:

1. This appeal concerns whether an immigrant who is removed from the United Kingdom at a time when she had an appeal on foot in relation to her immigration status is deemed to have abandoned her appeal. This turns on a short point of statutory construction.
2. The background facts can be summarised briefly. SR is a citizen of Algeria, born on 4 July 1981. She came to the United Kingdom on 28 December 2013 with entry clearance as a visitor for 6 months. Her intention in coming to the United Kingdom, not disclosed to the Secretary of State, was to marry a person now settled here, which she duly did. She overstayed her leave. Her marriage then broke down and she claimed she was subjected to domestic violence. On 15 January 2015 she claimed asylum on the basis that she would be at risk on return from her family members, who would seek to kill her because she had brought dishonour on the family.
3. By a decision letter dated 28 January 2015, the Secretary of State refused SR's claim for asylum and for leave to remain under the Immigration Rules and on the basis of her rights under Article 8 of the European Convention on Human Rights ("the ECHR").
4. SR appealed to the First-tier Tribunal under section 82 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). In a determination promulgated on 25 February 2015 the appeal was dismissed on all grounds.
5. SR then appealed to the Upper Tribunal. In a determination promulgated on 12 March 2015 that appeal was dismissed. By a decision dated 24 March 2015 the Upper Tribunal refused permission to appeal.
6. SR was detained with a view to her removal from the United Kingdom. While in detention she issued a Notice of Appeal to this court. Owing to some confusion, her first attempts to appeal to this court were not effective, but eventually, on 22 May 2015, SR issued an effective Notice of Appeal in which she also asked for an extension of time in which to appeal and gave an explanation for the delay.
7. Before SR's application for an extension of time and permission to appeal could be considered in this court, SR was removed back to Algeria by the Secretary of State on 13 June 2015. To state the obvious, this was not a voluntary departure on SR's part.
8. On 24 June the Court of Appeal Office received a letter from SR dated 14 June to inform the court of her new address in Algeria. This was sent in response to a previous request from the office to let them know of any change of address. It is clear from this letter that SR wishes her appeal to proceed. She has no intention of withdrawing it.
9. However, the question arises, as a preliminary issue on the appeal, whether SR's appeal must be treated as abandoned by virtue of section 92(8) of the 2002 Act, as substituted by paragraph 47 of Schedule 9 to the Immigration Act 2014 with effect from 20 October 2014. Section 92(8) provides:

"Where an appellant brings an appeal from within the United Kingdom but leaves the United Kingdom before the appeal is finally determined, the appeal is to be treated as abandoned unless the claim to which the appeal relates has been certified under section 94(1) or (7) or section 94B."

10. Section 94(1) is concerned with certification of asylum claims by the Secretary of State as clearly unfounded; section 94(7) with certification in relation to certain claims that there is no reason to believe that the person's rights under the ECHR will be breached when removed; and section 94B with certification in relation to certain claims that removal would not be unlawful contrary to section 6 of the Human Rights Act 1998 as being incompatible with a person's Convention rights. In cases of certification under these provisions, separate procedural provisions apply.
11. The substituted section 92(8) replaced section 104(4)(b) of the 2002 Act. That provided:

"An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant ... (b) leaves the United Kingdom."

12. Section 92(8) is the latest incarnation of the statutory rule which goes back to section 33(4) of the Immigration Act 1971, as amended by the Asylum and Immigration Act 1996. The original version of that amended provision stated:

"For the purposes of this Act an appeal under Part II shall, subject to any express provision to the contrary, be treated as pending during the period beginning when notice of appeal is duly given and ending when the appeal is finally determined or withdrawn or is abandoned by reason of the appellant leaving the United Kingdom."

The words underlined indicate the amendment introduced in 1996.

13. This court has been convened to deal with the preliminary issue about the effect of section 92(8). We have had the benefit of submissions by counsel for the Secretary of State and from Mr John-Paul Waite as advocate to the court, appointed to ensure that SR's interest in the issue was properly represented and that full submissions were presented. We are grateful to both counsel. In the event, the Secretary of State does not contest the analysis of the advocate to the court. However, in view of the potential importance of the point, I have considered the arguments and the authorities and I will give a ruling on it.

Discussion

14. In my judgment, section 92(8) does not have the effect that SR's appeal be treated as abandoned.
15. The phrase "Where an appellant brings an appeal from within the United Kingdom but leaves the United Kingdom before the appeal is finally determined" defines the circumstances in which the appeal is to be treated as abandoned. In my view, the word "leaves" used in this context means "voluntarily leaves the United Kingdom". It does not cover a situation in which an appellant is removed against her will by the Secretary of State.
16. My reasons for construing the word "leaves" in this way are as follows:

(i) To my mind, as a matter of ordinary usage, the word "leaves" has a strong connotation of an action being taken by an agent on a voluntary basis (e.g."The protester did not leave the building but was removed from it by a security guard");

(ii) In certain contexts it may be possible for the word to be used to refer to simple physical relocation of a person, however that relocation might be achieved, whether by deliberate action taken by the person as agent or by actions taken by others to relocate that person. However, there are no indications from the context here that such a wider meaning was intended. On the contrary, I think that both the linguistic context and the wider context and scheme of the legislation support the narrow meaning of "leaves" referred to above. As to the linguistic context, the word "leaves" appears in a composite opening phrase in which there is a single subject, the "appellant", who does two things: she "brings an appeal" and she "leaves the United Kingdom". The first clearly imports a notion of voluntary agency on the part of the appellant, since bringing an appeal is not something which is done to an appellant, and I see no reason to change the sense of the appellant being a voluntary agent doing something when one comes to the second verb in the same phrase. The use of the word "but" supports this view: the appellant has acted voluntarily to commence an appeal, but then acts voluntarily in another way so that it should be treated as abandoned.

(iii) Rule of law considerations in this context support the same conclusion. In a state governed by the rule of law, where the state itself is the subject of ongoing litigation, it would breach rule of law principles for the state to be able to defeat the litigation not by defending it on the merits before a court or tribunal, but by physically removing the opposing party so that she is prevented from bringing her claim before a court or tribunal, as appropriate, for determination according to law. Parliament is taken to legislate for a state governed by the rule of law with rights of access to justice: see, for example, R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36; [2004] 1 AC 604, paragraphs [26]-[28]. Accordingly, Parliament must be taken to have intended to use the word "leaves" in the narrow sense referred to above, where it is the voluntary act of the appellant which has the stated effect of the appeal being abandoned;

(iv) The narrower interpretation of the word "leaves" also accords with what I think is the manifest object and purpose of the provision, namely to make it possible to strike out an appeal with a minimum of procedural fuss when an appellant has voluntarily left the United Kingdom, since such action is generally inconsistent with the serious pursuit of an appeal launched on an in-country basis. To give the word "leaves" a wider meaning would involve going beyond that object and purpose without any good reason to do so;

(v) It is also significant that in those cases in which predecessor provisions, including section 104(4)(b) of the 2002 Act, set out above, have been considered in this court, the judges expressing views as to their meaning have been careful to say that the word "leaves" refers to the appellant "by his voluntary action" physically leaving the United Kingdom: see MM (Ghana) v Secretary of State for the Home Department [2012] EWCA Civ 827 at paragraph [32] and Shirazi v Secretary of State for the Home Department [2003] EWCA Civ 1562; [2004] INLR 92 at paragraph [13]. These observations have not been critical to the points in issue in those cases, which in fact concerned voluntary departures by an appellant. However, they are in line with my own view that the natural interpretation of the word "leaves" in this context is that it connotes voluntary action on the part of the appellant in question.

17. A different view of the meaning of the word "leaves" as it appeared in section 104(4)(b) of the 2002 Act was taken by the Asylum and Immigration Tribunal in MA (Afghanistan) [2004] UKIAT 00216, which considered that it bore the wider meaning canvassed above and thus covered both voluntary and involuntary departures from the United Kingdom. In my opinion, that is not correct. For reasons closely similar to those set out above in relation to the new section 92(8), I think the better view is that the word "leaves" in section 104(4)(b) bears the same narrow meaning as it does in section 92(8) and thus covers only voluntary departures from the United Kingdom.
18. For these reasons, section 92(8) has no application in the present case. SR's appeal remains on foot and is not to be treated as abandoned. Her application for an extension of time and for permission to appeal should now be considered on the papers in the usual way.

LORD JUSTICE UNDERHILL: I agree.