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Cite as: [2001] EWHC Admin 1004
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Kariharan & Ors, R (on the Application of v Secretary of State for the Home Department [2001] EWHC Admin 1004 (5th December, 2001)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
| Royal Courts of Justice Strand, London, WC2A 2LL | ||
B e f o r e :
____________________
THE QUEEN
On the application of
KANAGASINGHAM KARIHARAN (1)
KANAGARATNAM KONESWARAN (2)
MAHENDRAN PABEENDRAN (3)
Claimants
- and - SECRETARY OF STATE FOR THE HOME DEPARTMENT Defendant
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Manjit S Gill QC and Declan O’Callaghan (instructed by Nathan, Suresh & Amirthan) for the Third Claimant
Robin Tam (instructed by the Treasury Solicitor) for the Defendant
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
- The Claimants are Tamils from Sri Lanka. Mr Pabeendran, the Third Claimant, is an illegal entrant to this country; the First and the Second Claimants entered this country legally. Each of the Claimants sought asylum in this country. Their asylum claims were rejected by the Secretary of State. Their appeals from his decision to Special Adjudicators were dismissed. They had exhausted their rights of appeal before 2 October 2000. Each of the Claimants contends that his removal from the UK would violate his rights under the European Convention on Human Rights. Prior to 2 October 2000, the solicitors for the First and the Second Claimants had made representations on their behalf to the Secretary of State putting forward renewed claims for asylum, or for exceptional leave to remain on the ground that their removal from the United Kingdom would constitute a violation of their Convention rights. Those representations were not rejected until after 2 October 2000. The Third Claimant's solicitors made representations on his behalf both before and after 2 October 2000. The Secretary of State rejected them by letters dated 23 and 25 April 2001. The Secretary of State set removal directions in respect of the Claimants, in each case after 2 October 2000. Those directions have not been complied with by reason of these claims for judicial review.
- On 2 October 2000 the Human Rights Act came into force. It applies to acts of public authorities after its coming into force: see R v Lambert [2001] 3 WLR 206 and R v Kensal [2001] UKHL 62. On the same date, section 65 of the Immigration and Asylum Act 1999 (“the 1999 Act”) came into force. Section 65, so far as is relevant, is as follows:
- Section 6(1) of the Human Rights Act 1998 provides:
- In many cases the facts alleged to give rise to the right to asylum are identical to those alleged to give rise to a breach of human rights. A Tamil from Sri Lanka who claims that he has a justifiable fear that he will be tortured if he is returned to Sri Lanka has a claim to asylum and a claim, based on the same facts, that the decision to return him there would breach his rights under Article 3 of the European Convention on Human Rights. If the claim to asylum is unfounded, so is the human rights claim. However, the human rights claim may be based on different facts, as in the case of a claim of breach of Article 8 in the case of an immigrant threatened with removal who has established a family and home in this country. In such cases, section 65 of the 1999 Act adds significantly to the procedural rights of immigrants. In addition, as a result of changes in circumstances in the home country of an immigrant, a valid asylum claim and a human rights claim may be made after dismissal of an earlier claim.
- The transitional provisions relating to section 65 of the 1999 Act are contained in Article 3 of the Immigration and Asylum Act 1999 (Commencement No. 6, Transitional and Consequential Provisions) Order 2000 (SI 2000 No. 2444) (“the Order”), made under section 170(3) of the 1999 Act:
- Paragraph 1(7) of Schedule 2 to the Order is as follows:
- The Secretary of State has relaxed the perceived effect of these transitional provisions by a policy of generating appeals in certain pre-2 October 2000 cases. His policy has been varied twice. The current policy is that announced in Parliament on 19 July 2001, when the Secretary of State made the following announcement:
- The motive of the Secretary of State in adopting the exception to the general policy contained in the second paragraph of the above statement was to honour the statements made by counsel on his behalf to the Immigration Appeal Tribunal during the argument in the case of Pardeepan [2000] INLR 447. Whether that statement of policy is in fact consistent with those statements is one of the issues I have to determine.
- Where the Secretary of State’s policy is to permit a human rights appeal, that is achieved through the mechanism of generating, as a matter of discretion, a new decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom. The precedent for this was the mechanism for generating a new right of appeal on asylum grounds under the old legislation to deal with cases in which a fresh claim for asylum had been made, but rejected by the Secretary of State – see ex parte Kazmi [1995] Imm AR 73 and ex parte Onibiyo [1996] Imm AR 370.
- The above statement of the policy of the Secretary of State should be read in conjunction with paragraph 346 of the Immigration Rules:
- On various dates after 2 October 2000, the Secretary of State concluded that his decisions not to accept representations on behalf of the Claimants and to set removal directions did not give rise to an appeal under section 65. He refused to generate a human rights appeal under the policy announced on 19 July 2001 or otherwise. The Secretary of State’s position is that the Claimants have no right to an appeal under section 65 under the terms of the Act and the transitional provisions of the Order, under paragraph 346 of the Immigration Rules or under his stated policy. He contends that, ignoring the immaterial and the incredible, there is no difference between the human rights claims now put forward on behalf of the Claimants and their claims for asylum that were finally rejected before 2 October 2000.
- The Claimants contend as follows:
- The contentions of the Claimants summarised in sub-paragraphs (a), (b) and (c) of the preceding paragraph raise issues of general importance. The issue summarised in sub-paragraph (d) is fact-dependent, and when these cases came on for hearing on 24 October 2001 counsel for the Claimants were not in a position to deal with it on their behalf. Determination of that issue in each case has been adjourned pending my decision on issues (a), (b) and (c).
- This is my judgment on the first three issues.
- On behalf of the Claimants, Mr Manjit Gill QC submitted that section 65 should be given a wide interpretation, and that the transitional provisions to which I have referred should be similarly construed. I accept this submission: provisions protective of human rights should be given a liberal interpretation. However, I also accept Mr Tam’s submission that the question before me is not whether there is a remedy for a potential breach of the human rights of a person seeking to remain in this country, but whether his remedy is by way of appeal under section 65. Furthermore, in approaching the questions I have to consider, I bear in mind that any legislation may have a commencement date that excludes from its benefits events before a specified date: c.f. R v Lambert and R v Kensal cited above. Ultimately, my function is to interpret the legislation and delegated legislation in question so as to determine the intention of Parliament. I do so bearing in mind the principle referred to in the second sentence of this paragraph.
- In my judgment, the key words of section 65 of the 1999 Act are “in relation to that person’s entitlement to enter or remain in the United Kingdom”. If section 65 were intended to apply to all decisions made under the Immigration Acts, those words would be surplusage. I have no doubt that they were intentionally and advisedly used. Their plain meaning would distinguish between decisions declaring, creating or terminating a right to enter or to remain, or affecting the terms of such a right, and administrative decisions, such as a decision to require a person who has no right to enter or to remain in this country to leave, and a decision to enforce that requirement. On this basis, one would expect the setting of removal directions not to be a decision “in relation to a person’s entitlement to enter or remain in the United Kingdom”, since it is predicated on the absence of any such entitlement. The setting of removal directions are, on this basis, the equivalent of the issue of a warrant of possession by a claimant who has obtained judgment for possession of premises: c.f. the decision of the Court of Appeal in St Brice v London Borough of Southwark : [2001] EWCA Civ 1138.
- In my judgment, this analysis is consistent with the provisions of the Immigration Act 1971. Section 1(1) and (2) are as follows:
- Mr Gill submitted that these provisions support his submission that the words “in relation to a person’s entitlement to enter or remain in the United Kingdom” do not have the effect for which Mr Tam contended. He pointed out that the only persons having a right to enter or remain in the United Kingdom are those with a right of abode: all others are here only by leave or by permission. However, section 65 of the 1999 Act must be interpreted in its context. It is concerned, at least principally, with those who seek or have leave to enter or to remain. Mr Gill concedes that section 65 is not confined to persons having or claiming a right of abode. In the context of persons who do not have or claim a right of abode, leave to enter or to remain in the United Kingdom is what is referred to by the words “a person’s entitlement to enter or remain in the United Kingdom”. A decision to grant or to refuse leave to enter or to remain is a decision “in relation to a person’s entitlement to enter or remain in the United Kingdom”.
- On the other hand, removal directions may only be given in respect of someone who has not been given leave to enter: or who has remained in this country after the expiration of the time limited by leave to enter or remain, or who has failed to observe a condition attached to his leave, or whose leave has been obtained by deception: see paragraphs 8 and 9 of Schedule 2 to the 1971 Act and section 10 to the 1999 Act; see too paragraphs 12 to 15 of Schedule 2 to the 1971 Act.
- Mr Gill submitted that to exclude a decision to issue removal directions from the scope of section 65 would be to emasculate it, because of the practical importance of such directions to an immigrant, whose real concern, understandably, is not to be removed from this country. But very similar comments might be made in relation to the warrant of possession considered in St Brice v London Borough of Southwark: a tenant’s concern is to remain in his home. It is understandable that Parliament should have intended section 65 to focus on the right (or lack of right) of a person to enter or to remain in the UK, rather than the means by which a person who has no right to be here is removed: on the determination of the right rather than the enforcement of the consequences of a determination that there is or should be no such right. In this connection it is significant that Macdonald’s Immigration Law and Practice, fifth edition, refers, in my judgment aptly, to the procedure for issuing removal directions as “administrative removal from the United Kingdom” (at page 738), and as “part of the machinery for removal” (at page 765).
- The restricted grounds for appeal against removal directions are consistent with this approach. They may be challenged on the ground that there was no power to give them (section 66 of the 1999 Act) or if there is an objection to the destination (section 67) or on the ground that removal would be contrary to the Refugee Convention (section 69). The reference to section 65 in section 66 does not answer Mr Tam’s general point, because there are cases in which the issue of removal directions do affect entitlement to remain in the United Kingdom (see section 10(8)); and in any event there may be an appeal against a decision on which the validity of removal directions depends. The right of appeal created by section 69(5) is limited by section 70(7). Moreover, the fact that there may be appeals under these provisions does not mean that there is an appeal under section 65 too.
- Mr Tam pointed out the practical absurdities that would follow if the setting of removal directions gave rise to an appeal under section 65: in practice, removal could be thwarted by constant appeals, it being sufficient to allege a breach of human rights to give rise to an appeal. In addition, a new appeal could be made whenever removal directions are cancelled for reasons unconnected with the right to remain or any breach of human rights, as where a flight specified in a direction is cancelled, or a person liable to be removed is temporarily unwell or unfit to fly, or that person does not arrive at the airport in time for the flight. The point is made clearly in paragraph 5.2 of Mr Tam’s skeleton argument:
- Mr Gill pointed out that these consequences could be minimised by the use by the Secretary of State of his power to certify abusive repetitive appeals under section 73 of the 1999 Act. But I accept Mr Tam’s submission that these consequences would not be avoided. Again, I can cite his skeleton, at paragraph 5.5:
- Mr Gill submitted that in practice it would be rare for persons to attempt to make abusive repeat appeals. Paragraph 22 of the Claimants’ skeleton argument includes the following points:
- However, I have not decided this issue on the basis of the inconvenience or difficulties that a contrary decision would cause to the Secretary of State or to removal arrangements. In my judgment the wording of section 65 of the 1999 Act and its correct interpretation are clear. A decision to issue removal directions, predicated on an absence of entitlement to enter or to remain in the UK, is not a decision under the Immigration Acts relating to a person's entitlement to enter or remain in the United Kingdom. That consequences of a contrary conclusion would be something Parliament cannot sensibly have intended fortifies me in my conclusion, but it is one I should have reached in any event.
- I have also concluded that the Secretary of State’s decision not to accept representations made to him on behalf of an applicant, outside any statutory or formal procedure, is not a decision under the Immigration Acts relating to that person’s entitlement to enter or remain in the United Kingdom within the meaning of section 65. If the decision to set removal directions is not such a decision, a decision by the Secretary of State refusing to cancel those directions after the receipt of representations on the part of the immigrant, outside the framework of any appeal or other formal procedure, similarly cannot be such a decision. Similarly, a decision that an asylum or human rights claim has already been considered and rejected on appeal cannot itself be a decision within the meaning of section 65. That decision is not a decision relating to that person’s entitlement to enter or to remain in the United Kingdom: it is a decision relating to the question whether a human rights claim or fresh asylum claim has been asserted to which either section 65 or the Secretary of State’s policy applies or to which rule 346 of the Immigration Rules applies. However, that decision may be the subject of judicial review, and is so in the present cases.
- In relation to the rejection of representations, practicalities do affect my decision. If Mr Gill’s submission were correct, every letter of the Secretary of State responding adversely to representations seeking postponement or cancellation of removal directions set after the dismissal of an appeal and alleging a breach of human rights would give rise to a further right of appeal on human rights grounds, irrespective of the credibility of the allegation of breach of human rights or of the previous justified rejection of the allegation during the appeal process. Any immigrant could indefinitely postpone removal by simply writing a letter to the Secretary of State alleging that his impending removal would result in breach of his human rights, be entitled to a further appeal. Section 73 would minimise abuse of the system, but again would not avoid it, for similar reasons to those set out under paragraph 23 above: the Secretary of State cannot certify under section 73 until after service of the notice of appeal. Parliament cannot have intended such a result.
- Lastly, I do not think that Article 4(2) of the Order assists the Claimants. Article 4(2) refers to Article 3, which is expressly subject to Schedule 2 to the Order; and paragraph 1(7) of Schedule 2, like section 65, refers to a “decision”, not to an “event”.
- It follows that in each of the present cases, the relevant decision was made before 2 October 2000. Paragraph 1(7) of Schedule 2 to the Order provides that section 65 is not to have effect where the decision under the Immigration Acts was taken before 2nd October 2000. “The decision” to which that paragraph refers must be one that can be the subject of section 65, i.e., “a decision under the Immigration Acts relating to (a) person’s entitlement to enter or remain in the United Kingdom”. On the true construction of section 65 and the Order, therefore, none of the Claimants is entitled to appeal under section 65.
- The Claimants argue that the Secretary of State’s policy is unlawful on two grounds: first, to quote their skeleton argument, that it is “ultra vires in that it unlawfully denies the right to … an appeal (under section 65) in cases such as the present”; secondly, it is irrational, in that without justification it discriminates between those who had a pending appeal as at 2 October 2000 and those whose appeals had been finally determined, conferring on the former a right of appeal and denying it to the latter.
- The first argument is circular, and provides no separate basis for impugning the Secretary of State’s policy. In any event, given that the Order provides that section 65 applies to decisions taken on and after 2 October 2000, and the Human Rights Act 1998 does not in general apply to earlier decisions (see section 22(4)), it cannot be argued that the provisions of the Order relating to section 65 are ultra vires. The policy as implemented confers greater rights than the Order, and cannot be impugned on the basis of incompatibility with the 1998 Act. Parenthetically, it has not been suggested that the policy may be impugned on the basis that it goes beyond and is therefore inconsistent with the provisions of the Order.
- The introduction of new statutory rights always involves discrimination, if only between those who might have benefited from those rights if the legislation had been passed earlier and those able to benefit from them. This consequence of legislation is highlighted by the recent decision of the House of Lords in R v Kensal. Such discrimination is not unlawful: contrary to the Claimants’ submissions, it is not based on any ground referred to in Article 14 of the European Convention on Human Rights. It is obviously competent for Parliament to provide for a statute not to be retrospective, with the result that those persons who might have availed themselves of the new statutory right in question had it been available at the time relevant to them are unable to avail themselves of it. It is however common legislative practice for Parliament to make or to authorise the making of express transitional provisions that may delay the coming into force of some or all of the provisions of a statute. In general, it cannot be an objection to such provisions made in delegated legislation that an earlier or different date for their application would have benefited persons who because of the date or other content of the transitional provisions made are not qualified to enjoy that benefit: i.e., that the transitional provisions discriminate between some persons and others.
- In relation to the Human Rights Act, given that it was competent for Parliament to decide not to enact it at all, it was equally competent for it to decide that its provisions were to apply only to acts of public authorities after a specified date, which need not necessarily have been the date the Act was passed. It was similarly competent for Parliament to decide that section 65 of the 1999 Act should apply only to decisions made on and after the date the Human Rights Act came into force, and given the provisions of section 22(4) of that Act consistent provision was made in the Order.
- The policy of the Secretary of State does discriminate between those whose appeals had been finally determined before 2 October 2000 and those whose appeals had not been so determined, if the matters raised in their human rights appeals add nothing to the matters determined in their appeals. I see nothing perverse or irrational in such a policy. It extends rights to those who, under the provisions of the statute, would not be able to avail themselves of those rights. Given that the introduction of new statutory rights must nearly always involve some discrimination based on time, it cannot be an objection to such a policy that the beneficence so extended could have been extended further. In this connection I refer to The Queen on the application of McKenzie v Secretary of State for the Home Department [2001] EWHC Admin 630, in which Lightman J came to a similar conclusion.
- There are in any event rational justifications for the policy. It distinguishes between those whose human rights claims had been considered (albeit in the context of their asylum applications) and finally rejected by the independent appeals procedure and those whose claims had not been finally determined, or whose claims involved issues or facts that were not the subject of the pre-2 October 2000 appeal determinations. There is a public interest in preventing the reopening or duplication of appeals, which is not only costly in time and money but delays the allocation of resources to, and the determination of, other cases.
- It follows that the policy is reasonable and lawful.
- I should mention that Mr Tam also sought to justify the lawfulness of the present policy on the basis that it results from an amendment to the previous policy of the Secretary of State made to make his policy consistent with what was said on his behalf during the argument in Pardeepan, so as to avoid any friction between his Department and the Immigration Appeal Tribunal. Whether his policy is so consistent is a question I consider below. I am not sure that a policy that is irrational in its effect may be saved by rationality in the motive for its adoption, but, in view of my above conclusion as to the rationality of the policy irrespective of the motive for its adoption, that is a question I do not have to determine.
- As indicated above, the legitimate expectation alleged on behalf of the Claimants is based on what was said on behalf of the Secretary of State during the argument in Pardeepan. The statements made by counsel on behalf of the Secretary of State were widely published among immigration lawyers, and subsequently representations were made on behalf of the Immigration Law Practitioners’ Association when it was thought that the policy of the Secretary of State did not accord with those statements. Those representations led to a change in the policy, and the statement of policy set out above is the policy resulting from those representations.
- The first requirement of legitimate expectation, as a ground for judicial review, is a commitment by the public authority from which it proposes to depart: see The Queen v the London Borough of Newham, ex parte Bibi [2001] EWCA Civ 607. In the present case the commitment is alleged to be contained in the statements made on behalf of the Secretary of State to the Immigration Appeal Tribunal in Pardeepan. And so the first question for decision under this head is whether what was said on behalf of the Secretary of State in Pardeepan differs in its effect from his present policy set out above.
- It is not suggested that the statements relied upon by the Claimants are to be found elsewhere than in the reported decision of the Immigration Appeal Tribunal in Pardeepan. The relevant passages are at paragraphs (5), (6), (14) and (16):
- It is clear from the words in paragraph (6) “those whose appeals are refused” (rather than “have been refused”) that Mr Thompson was referring to pending or to future appeals. The same applies to the statement in paragraph (14). In Pardeepan itself, although the decision of the Special Adjudicator predated 2 October 2000 by some considerable time, the appeal to the Immigration Appeal Tribunal came on after that date: i.e., the appeal was pending on 2 October 2000. There is nothing in the reported decision in Pardeepan to show that any undertaking was given on behalf of the Secretary of State in relation to appeals that had been finally determined before that date. Furthermore, it is unsurprising that the statements made on behalf of the Secretary of State to the Immigration Appeal Tribunal should be confined to pending cases: the obvious and expressed concern of the Tribunal concerned the position of Special Adjudicators and Tribunals in appeals yet to be heard. The Tribunal in Pardeepan, in which the decision was given on 6 October 2000, was not concerned with cases that had already been finally decided.
- The correspondence of the Immigration Law Practitioners’ Association to which I have been referred shows that the profession’s understanding of the statements made on behalf of the Secretary of State in Pardeepan was consistent with the above. The Chairman’s letter dated 5 July 2001 to the President of the Immigration Appeal Tribunal expressed concern “about the apparent extent of breach by the Secretary of State of the assurances given to you during the course of the hearing in Pardeepan in cases where refugee appeals have been dismissed in post 2nd October 2000 appeals without reference to human rights, and yet subsequent human rights claims have apparently not been “entertained” by the Home Office” (emphasis added). The Deputy President of the Immigration Appeal Tribunal replied by letter dated 6 July 2001 in which he stated:
- It follows that no undertaking was given on behalf of the Secretary of State, and no statement made on his behalf, to the Tribunal in Pardeepan that applied to the present Claimants. The Secretary of State did not commit himself to extend the provisions of section 65 of the 1999 Act to persons such as the Claimants. The Secretary of State has complied with the assurances given to the Immigration Appeal Tribunal in Pardeepan. It follows that the essential pre-condition for a claim for judicial review based on legitimate expectation is not present, and that there is no basis for judicial review on this ground.
- I have determined the three issues in these cases that are of general importance adversely to the Claimants. The fourth issue raised by the Claimants, namely whether their respective human rights claims add nothing material to their asylum claims that have already been finally rejected, remains to be considered. In these circumstances, it may be appropriate to make declarations to give formal effect to this judgment. I shall hear counsel as to the order to be made and on the wording of those declarations.
MR JUSTICE STANLEY BURNTON:
Introduction
“(1) 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 ...
(2) For the purposes of this Part
... an authority acts in breach of a person's human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.”
“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
“(1) Subject to Schedule 2 –
(a) the new appeals provisions are not to have effect in relation to events which took place before 2nd October 2000 and, notwithstanding their repeal by the provisions of the 1999 Act commenced by this Order, the old appeals provisions are to continue to have effect in relation to such events;
…..”
“The new appeals provisions” include section 65 of the 1999 Act: see Article 4(1)(a) of the Order. Article 4(2) is as follows:
“For the purposes of article 3, an event takes place when –
(a) a notice is served;
(b) a decision is made or taken;
(c) directions are given; and
(d) a certificate is issued.”
“Section 65 (human rights appeals) is not to have effect where the decision under the Immigration Acts was taken before 2nd October 2000.”
“On 20 March in another place, my noble friend, Lord Bassam, in reply to a question from Lord Lester of Herne Hill, clarified the position of asylum seekers who wished to make a human rights claim under section 65 of the Immigration and Asylum Act 1999. He confirmed that people appealing against immigration decisions made before 2 October 2000 cannot benefit from this appeal right which is not retrospective. But they could make a separate human rights claim and would have the opportunity to appeal except in those instances where the human rights issue had already been considered by the appellate authority or the courts, or there had been findings of fact at an earlier appeal which mean the human rights claim is bound to fail.
However, it has been decided that the exception should not apply to people who had an appeal pending or could have lodged appeals in time to the immigration appeals authority on 2 October 2000. If they make a human rights claim and it is rejected they will be able to make an allegation and we will then give them an opportunity to appeal to the immigration appeals authority.”
“The exception” referred to in the second paragraph of that statement consists of those cases “where the human rights issue had already been considered by the appellate authority or the courts, or there had been findings of fact at an earlier appeal which mean the human rights claim is bound to fail”.
“Where an asylum applicant has previously been refused asylum during his stay in the United Kingdom, the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions set out in Paragraph 334 will be satisfied. In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which:
(i) is not significant; or
(ii) is not credible; or
(iii) was available to the applicant at the time when the previous application was refused or when any appeal was determined.”
The issues
(a) The decisions of the Secretary of State after 2 October 2000 to reject representations made on behalf of the Claimants and to set removal directions were decisions relating to their entitlement to remain in the UK within the meaning of section 65 of the 1999 Act and gave rise to rights of appeal under that section.
(b) The policy of the Secretary of State announced on 19 July 2001 is irrational and unlawful.
(c) That policy does not conform with assurances given on behalf of the Secretary of State in Pardeepan. As a result of those assurances, each of the Claimants had a legitimate expectation that he would be permitted a section 65 appeal, and the Secretary of State is bound to honour that expectation.
(d) On the particular facts of each of their cases, their present human rights claims raise issues or assert facts that were not the subject of their asylum appeals, and that they are therefore entitled to an appeal under the Secretary of State’s policy.
Each of these contentions is disputed by the Secretary of State.
(a) Does s.65 give rise to a right of appeal in a case where the asylum appeal has been disposed of well before 2.10.00 and where the Secretary of State has, after 2.10.00, rejected representations seeking leave to remain and has set removal directions?
“(1) All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom ….
(2) Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; …
Section 3(1) provides:
“... where a person is not a British citizen –
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; ...”
5.2 ... This position (that the setting of removal directions is in itself a decision relating to entitlement to enter or remain in the United Kingdom which forms the basis of an appeal under section 65 of the 1999 Act) leads to an absurd situation:–
(a) any asylum or human rights appeal, if properly brought under section 69 or section 65 of the Immigration and Asylum Act 1999 respectively, suspends any removal directions which have already been given – see paragraphs 10, 11 and 20 of Schedule 4 to the Immigration and Asylum Act 1999;
(b) if that appeal is dismissed, a date or a new date must then be nominated for that person's removal;
(c) but if such a nomination of a date is automatically a decision under the Immigration Acts relating to his entitlement to enter or remain in the United Kingdom, it would always be open to that person immediately to generate a new right of appeal under section 65 of the 1999 Act by making an allegation that the Secretary of State breached his human rights in taking that "decision", irrespective of the merits of any such allegation;
(d) it would thus be open to any such person to generate sequentially an infinite number of rights of appeal, each of which suspends the power to remove.
(e) this would be so even if the date nominated for a person's removal has to be amended for wholly technical or practical reasons, totally unconnected with any human rights issue – it would similarly be open to that person immediately to generate a new right of appeal under section 65 of the 1999 Act irrespective of the merits of any allegation made by him and irrespective of the totally unconnected reason for the amendment of the date for removal.
“(a) if removal directions are set in respect of a person, his right of appeal under section 65 arises when he responds (inevitably, at a later time) and makes an allegation that the setting of removal directions breaches his human rights;
(b) at that point, the Secretary of State is required to give him written notice of the decision – see regulations 4 and 5 of the Immigration and Asylum Appeals (Notices) Regulations 2000;
(c) thereafter, the person has 10 days in which to give notice of appeal – see regulation 6 of the Immigration and Asylum Appeals (Procedure) Rules 2000;
(d) it is only after notice of appeal is given that the Secretary of State's section 73(2) certification power arises.
Hence, on the Claimants' case, any determined asylum seeker will always be able to disrupt any attempt to enforce removal by about 10 days, thus opening the door to the absurd situation of a potentially infinite number of sequential disruptions.”
… Most persons will have advisers and the advisers themselves owe duties not to run cases irresponsibly and there is provision for their work to be supervised (advisers now have to be licensed by the Immigration Services Commissioner in order to conduct appeals work – see Pt V of the Immigration and Asylum Act 1999). Where people do not have advisers, attempts to repeatedly appeal are likely to be dealt with speedily and removals will not be held up. Penalties may also be imposed on continuing with unmeritorious appeals: s.79 of the 1999 Act. Other funding considerations also apply to immigration advisers (e.g. failure to use the budget provided by the LSC to run meritorious cases can lead to financial consequences).
These points go some of the way to meet Mr Tam’s point, but not far enough. The possibility of abuse of the appeals procedure remains. One must also bear in mind that a representative of an immigrant may consider himself duty bound in the interests of his client to take such procedural steps as will postpone or avoid his removal.
(b) Is the Secretary of State’s policy lawful?
(c) Legitimate Expectation
“(5) The result of the commencement order, and the provisions which we have just cited, seem to us to be clear beyond any doubt. They prevent the Tribunal from considering human rights issues in any existing appeal, because subs (3) of s 65 cannot be relied on in relation to decisions made before 2 October 2000, and of course before adjudicators, and more particularly before the Tribunal there are at present, and likely to be probably until about the end of the year, only decisions made before 2 October 2000. We have, of course, a particular case in front of us, and as Mr Thompson has rightly reminded us, we are strictly concerned only with the circumstances of that case. However, we are well aware that the Immigration Appellate Authority in general, and I am referring more particularly here to adjudicators, have some doubts whether they should consider human rights issues at present and it seems therefore not only sensible but necessary that the Tribunal should seek to give guidance as to what is the correct approach. Accordingly, in hearing argument on this point, we have considered the matter far more widely than merely the facts of this case. This decision is a starred decision. The result of that is that it must be followed by all adjudicators and should be regarded as binding by all Tribunal members. If we are wrong in what we decide the matter can only be corrected by the Court of Appeal. Otherwise, of course, there will not be consistency of approach which is clearly essential in the situation that arises.
(6) It is, we are bound to say, perhaps somewhat ironic that this Tribunal of all Tribunals should be precluded from considering human rights issues from the inception of the Human Rights Act 1998. We should say, as will be apparent when we go through the matter, that that does not mean that human rights will not be taken into account because we are assured by Mr Thompson, on behalf of the Secretary of State, that those whose appeals are refused, for example, on asylum grounds, will be given the opportunity to raise, if they think fit, human rights objections to removal, should the Secretary of State decide to remove them. We are equally assured that the Secretary of State will not seek to argue that they do not have a right of appeal under s 65 in respect of such a subsequent decision to remove. We hope that we have correctly understood the extent of the assurances that we have been given by the Secretary of State.
….
(14) We are satisfied from what we have been told, that the Secretary of State is not intending to act in such a way as does not give the proper opportunity to anyone whose appeal is before the Tribunal, or the adjudicator, who loses and who wishes to raise a free-standing human rights claim, to be able to do so. This is of vital importance, because we must be satisfied that the Secretary of State or his officials would not, for example, take someone to London airport to be put on to a plane without being given notice of that intention, or at least a proper opportunity of being able to raise the human rights point.
…
(16) We are concerned, we emphasise, only with those who have already appealed whose appeals are being considered between now and whenever pre-2 October 2000 decisions cease to be an issue, because they are those whom we are unable to assist on human rights grounds.”
“Pardeepan, as you clearly recognise, relates solely to pending appeals.”
Conclusion
MR JUSTICE STANLEY BURNTON: My judgment on the issues which are common to all three claimants, and indeed of general application, has been distributed in draft. Copies are now available for those who may be interested, and it sets out the findings and conclusions I have arrived at.
MR HOSKINS: There is no application for costs in this matter on behalf of the respondent. My Lord, there are two further matters that may arise out of the judgment which I hope your Lordship has seen some correspondence about between the solicitors.
MR JUSTICE STANLEY BURNTON: I have.
MR HOSKINS: In the absence of Mr Tam in whose shoes I stand today I wonder whether your Lordship would be content to make an order that the terms of any declaration sought are to be agreed between the parties and submitted to the court for approval by 17th December this year, with liberty to restore if necessary.
MR JUSTICE STANLEY BURNTON: If it is to be restored it should be restored this term.
MR HOSKINS: Yes.
MR JUSTICE STANLEY BURNTON: For reasons stated - you would have had a fax from my clerks - I am not in London for the first half of next term.
MR HOSKINS: I am grateful to you. That had not found its way to me for one reason or another.
MR JUSTICE STANLEY BURNTON: I will not be back in London until about 15th February.
MR HOSKINS: That adds emphasis I am sure to the parties' deliberations. Secondly, your Lordship will be aware, of course, that there was a further issue which arises in these applications which was not determined at the hearing. Again I would suggest an order in terms that appropriate directions and a timetable for the resolution of the further issues in these applications be agreed and submitted to the court, again by 17th December of this term, with again liberty to restore this term if necessary.
MR JUSTICE STANLEY BURNTON: Frankly, if I see the draft declarations and I am unhappy with them there will have to be another appearance, presumably the same in respect to directions. Is it necessary for me to be the judge of the next stage?
MR HOSKINS: All I can say is that for obvious reasons it would be extremely convenient if your Lordship could be the judge.
MR JUSTICE STANLEY BURNTON: It is that time constraint which is the only matter that I mention.
MR HOSKINS: I do not know whether Mr Gill has any comments.
MR JUSTICE STANLEY BURNTON: I am going to ask Mr Gill what he has to say, but I just mention that. I suspect the pressure on time is coming from you rather than Mr Gill. If you are content to wait until after 15th February then the matter can come back before me then, assuming I am sitting in the Administrative Court. I assume I am. Mr Gill?
MR GILL: My Lord, so far as the terms ----
MR JUSTICE STANLEY BURNTON: Incidentally, can I thank you both for the corrections.
MR GILL: My Lord, there were very few.
MR JUSTICE STANLEY BURNTON: I am still grateful, particularly for yours, Mr Gill.
MR GILL: My Lord, so far as terms of any declarations are concerned I am content to agree with what my learned friend suggests. I am not sure whether declarations are necessary because some form of order would in fact be there in order to allow any appeal; and there is some issue as to whether declarations can in fact be ordered at the behest of a respondent without getting into technical arguments of that sort.
MR JUSTICE STANLEY BURNTON: There we are. It seem to me a good idea (a) because these were cases of general importance; and (b) in case I am not the judge next time.
MR GILL: Yes, my Lord, it may be we can agree some form of an order which adequately reflects your Lordship's judgment, although the judgment is, if I may say so, clear enough.
MR JUSTICE STANLEY BURNTON: Thank you.
MR GILL: My Lord, so far as the timing is concerned I am a little concerned about that in view of other time difficulties during the course of this term, so I would hope, and I just put this down as a marker, that we can agree this very soon after Mr Tam's return so that it can, if need be, be restored this term.
MR JUSTICE STANLEY BURNTON: I can tell you that I have the misfortune, therefore you may have the misfortune, of coming before me after the close of term, because I am duty judge until 31st December. The curtain does not fall at the end of term. But I do not see why. It is going to be 2 minutes, is it not? Even if there is a disagreement over the wording or directions it is going to be a two-minute application.
MR GILL: Yes. As regards the last issue, which is the issue about the fourth point, we are keen to get that resolved reasonably quickly, in fact, because we were keen at the last hearing. As to which judge ultimately hears that issue we have no particular views. But it would make some sense for the matter to be dealt with by your Lordship, but we have no views about that whatsoever.
MR JUSTICE STANLEY BURNTON: At the moment it does not seem to me this is the kind of case where I should reserve the next stage to myself because I have not gone into the facts sufficiently; but it would be convenient for me to deal with, and I think we will leave it at that.
MR HOSKINS: My Lord, I have taken instructions while Mr Gill was on his feet. We have no fixed views that your Lordship should continue with the rest of this case. Equally obviously it would be convenient for your Lordship to do so. If time makes that difficult we are quite content.
MR JUSTICE STANLEY BURNTON: Yes.
MR GILL: So far as the time is concerned the other side has all the representations and the timing is in their court as to how long it take to consider any further documents that are available to them; so Mr Tam could of course consider that when he gets back. The only other thing about the timing is this. There is shortly going to be an application for leave to appeal and it would be hoped certainly on our side, and no doubt on the Secretary of State's, the Court of Appeal could one way or the other deal with the matters of general importance as your Lordship describes them before the matter came back into the Administrative Court list on the fourth issue. That may mean the Court of Appeal dealing with the matter rather more speedily than would otherwise be the case.
MR JUSTICE STANLEY BURNTON: It would certainly, because assuming this could come back in February you would be moving to get before the Court of Appeal before then, is my understanding. You would certainly have to make special application.
MR GILL: Yes, we may have to do that because the issue is of general importance. Subject to that there is no disagreement with what my learned friend suggests.
MR JUSTICE STANLEY BURNTON: Then we will leave matters as is. I will make those orders; they are really directions.
MR GILL: The application for leave to appeal. My Lord, your Lordship recognises, I think in more than one place, the matters that are of general importance.
MR JUSTICE STANLEY BURNTON: That is why the cases were brought together.
MR GILL: Absolutely. That is why the Secretary of State was so keen to have them heard, your Lordship will recall Mr Tam making comments to that effect.
MR JUSTICE STANLEY BURNTON: I have to say that particularly in the light of the most recent decision in the House of Lords which I have referred to in here - I do not think you saw it in the draft because it came out later - Kensal, is it?
MR GILL: Yes.
MR JUSTICE STANLEY BURNTON: Kansal. I think that has made your task rather more difficult rather than less difficult.
MR GILL: My Lord, I was not pushing the Lambert point, although I left it there, as it were. What happens, although I have seen a summary of Kansal in the Times and looked through the transcript to some extent, there may be some dicta in it which are relevant to that issue; but even that issue is not the primary issue on which I seek permission to appeal.
MR JUSTICE STANLEY BURNTON: Yes, but it is very pertinent to the issue whether there can lawfully be a distinction between old and new.
MR GILL: My Lord, it may be said that any comments on such a distinction help me rather than hinder me; but that is perhaps the subject of more detailed scrutiny of that decision. But the whole concept of what is meant by an entitlement to enter or remain is an issue which we would respectfully submit, particularly that issue which merit the scrutiny of the Court of Appeal.
MR JUSTICE STANLEY BURNTON: Let me hear what Mr Hoskins has to say. What do you say, Mr Hoskins?
MR HOSKINS: All I say about that, my Lord, is that this is not a matter in which your Lordship might consider the appeal to have a real prospect of success. It is whether there is some other compelling reason for it to go to the Court of Appeal. We would make no particular submissions about that. It may be that your Lordship would think that my learned friend ought to seek to persuade the Court of Appeal that they should consider this matter rather than have permission today.
MR JUSTICE STANLEY BURNTON: I am inclined to that view because if this matter is going to get before the Court of Appeal quickly there is going to have to be an application in any event. If this is of general importance -- this case does not just affect these claimants.
MR HOSKINS: The only reason I said that is because your Lordship has determined these questions in the context of the judgment, which is clear in its terms. In those circumstances there is now a judgment in existence, and given that I apprehended your Lordship does not think the appeal has any real prospect of success then the question becomes whether there is compelling reason for the Court of Appeal to hear it.
MR JUSTICE STANLEY BURNTON: You say there is no real prospect of success.
MR HOSKINS: Indeed.
MR GILL: My Lord, there does not appear to be any disagreement that the matters are of public importance so that there are compelling reasons for leave to be granted. That on its own is enough. As regards a real prospect of success, my Lord, the issues took two days to argue. Your Lordship reserved judgment. The phraseology itself is new phraseology. To a large extent your Lordship has drawn parallels with the position with warrants of possession, and there are, with great respect, serious problems with that approach without being disloyal to the judgment, and it may be said that the very phraseology of the terms of your Lordship's judgment in paragraph 16 in fact as to whether the entitlement is a matter to enter or remain is a matter which relates to the declaration of rights. It may follow from that that someone who seeks advice then they should have leave to enter because there is a declaration in their favour that the claimants should have succeeded. With great respect it is possible for the Court of Appeal to take a different view and therefore there is a real prospect. Whether it be a low one or a high one does not particularly matter. There is a real prospect of success.
MR JUSTICE STANLEY BURNTON: Mr Gill, given that you will need to go before the Court of Appeal in any event to get this case on when you want to get it on, seems to me you should make your application for permission to appeal to them. They are going to have to look at my judgment in any case, and take a view as to whether or not to bring is on quickly; and when they do that they can obviously decide whether it is a proper case for appeal. So I will refuse permission on that basis. Unless there are any other matters, thank you very much, Mr Gill for your help, and Mr Hoskins for your help today.
MR GILL: My Lord, I would ask for detailed assessment.
MR JUSTICE STANLEY BURNTON: Yes.
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