England and Wales High Court (Administrative Court) Decisions

“A person who is refused leave to enter the UK under the 1971 Act may appeal against that refusal to an adjudicator on the ground that his removal in consequence of the refusal would be contrary to the [Refugee] Convention.”

8-13.

1. In Massaquoi the Court of Appeal clearly rejected the submission that the IAT could deal with asylum status if there was to be no deportation.

2. That principle applies if there is a grant of Exceptional Leave to Remain (“ELR”) following a refusal of leave since the refusal then disappears.

3. Therefore the appellate authority is not concerned to determine status where there is not a continuing refusal of leave to enter

4. It follows that the supposed advantages, whether to the appellants or to the respondent, of having a decision whether or not an appellant is a refugee cannot weigh in deciding whether these appeals should go ahead.

5. Since the right of appeal, albeit against the immigration decision to refuse leave to enter, is based on the obligation not to “refoule” contrary to Article 33, it follows that if there is to be no removal the appeal becomes academic.

6. In the present case the evidence indicated that the Secretary of State did intend to remove at some point. In those circumstances, since the appellant would, once removal directions were given, have no further right to appeal, it would be unfair to the refugee claimant to dismiss his appeal now.

7. Since the IAT was not empowered to consider an appeal limited to status and since it would be unfair to dismiss the appeal at present the appeal should be adjourned.

8. A person refused leave to enter is not lawfully in the territory of the United Kingdom: see In re Musisi [1987] A.C.514. A person refused leave to enter is thus, even if he be a refugee, not protected by Article 32 of the Convention, and his being required to leave the United Kingdom is not of itself capable of amounting to a breach of Convention. His ‘removal in consequence of the refusal’ of leave to enter will be in breach of the Convention if, and (for present purposes) only if, it contravenes Article 33.

9. A claimant who is able to establish (by reference to his country of nationality) that he is a refugee within the definition of Article 1A (2) is therefore not necessarily protected from removal from the United Kingdom. If he is not here lawfully, he is protected only from removal to a place where he would be at risk either of persecution or of refoulement to another place where he would be at risk of persecution. In order to succeed in an appeal, an appellant under section 8 (1) needs to establish that his removal ‘in consequence of the refusal’ of leave to enter would be removal to such a place. If he is not in a position to do that, it cannot make any difference whether he is able or unable to establish that he is a refugee.

10. An appellant cannot be expected to deal with the effect of all possible removal directions. He is entitled to be told, clearly, what is the case that he needs to establish. Until he is told, clearly and irrevocably, the destination to which his removal is envisaged, it is not fair to expect him to argue his case against removal.

11. It was wrong on the facts to assume that Afghanistan would be the country to which the Afghanis would be removed.

12. The appellant’s task in these proceedings as they stand is impossible. If he cannot establish that (if he were a refugee) his removal would contravene Article 33, then the question whether he is a refugee is immaterial to the outcome of the appeal. But it would be grossly unfair, while the respondent declines to specify the place to which he is to be removed, to require him to establish that the place is a place to which he cannot be removed in compliance with the Convention. On the other hand, to allow him simply to establish that he is a refugee, regardless of any actual or proposed removal, would be an excess of jurisdiction as it would be an appeal not within section 8 of 1993 Act.

13. It follows that, while the projected removal destination remains open, it is not possible for this appeal to be determined justly or effectively. The Tribunal therefore adjourned the appeal until such time as the proposed removal destination was indicated by the Secretary of State .

1. A person may appeal against a refusal of leave to enter on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom’s obligations under the Refugee Convention. If his removal would be contrary to those obligations, his appeal is entitled to succeed even if the Secretary of State has no current ability or intention to remove him. By contrast, his removal would not be contrary to the Convention if he is not a refugee. Accordingly his appeal must be dismissed if he is not a refugee. However, if he is a refugee, his removal to a country in respect of which he is a refugee would generally be contrary to the Convention. Accordingly, in such a case, if the Secretary of State does not indicate another country (‘a third country’) to which a refugee can be removed without infringing Article 33 of the Refugee Convention, the refugee’s appeal should be allowed. If the Secretary of State does indicate a third country, however, then the appellant must show that his removal to that country would be contrary to the United Kingdom’s obligation under the Convention.

2. In this case, therefore, if no. 19 is not a refugee (as the panel of adjudicators held), his appeal should be dismissed. However, if he is a refugee then, since the Secretary of State had not indicated any third country to which he could be removed, no. 19’s appeal should be allowed. There was thus no reason for any adjournment.

3. The IAT’s approach of adjourning the cases sine die benefits those claimants who are not refugees, whose appeals should be dismissed, and penalises any claimant who may be a refugee by postponing the determination of his appeal unnecessarily.

4. When a person makes a claim for asylum he may not know whether the Secretary of State is able, or intends, to remove him either (a) to a country in relation to which he claims to be a refugee or (b) to any other country. But that does not mean that he cannot make a claim for asylum. To make good his claim to asylum a person must first show that he is a refugee. Admittedly, his asylum claim also necessarily contains the assertion that there is no safe third country to which he can be removed. But the Secretary of State accepts that, if a refugee’s asylum claim is to be rejected, the onus is on the Secretary of State to indicate to which third country the claimant can be removed. It would then be for the claimant to show that his removal to that country would be contrary to the Convention. It would be unreasonable to expect, and Parliament cannot have intended, that a refugee must also prove when making a claim for asylum that he would not be admitted to, or that his life and liberty would be threatened in, each and every other country in the world.

5. If the IAT were correct, however, a claim for asylum would have to be refused if the Secretary of State had no current ability and intention to remove an asylum claimant, since the claimant could not establish his claim. The claimant's appeal against any consequent refusal of leave to enter would have to be dismissed since the claimant could not establish his ground of appeal. But, as the IAT recognised, the claimant would have no further right to appeal a subsequent decision based on the original refusal of leave to enter. Accordingly, on the IAT’s reasoning, a claim for asylum and an appeal by a person whom the Secretary of State wrongly considered was not a refugee could fail, and that person could be subsequently removed, without having his appeal that his removal would be in breach of the United Kingdom’s obligations considered on the merits. Such a result cannot have been intended by Parliament.

6. Since leave to enter had been refused in the present cases, Massaquoi was distinguishable and there was jurisdiction to hear the appeals. The IAT should have first considered whether the claimants were refugees – only once it is determined that the claimant is a refugee can the question arise whether it would be in breach of the United Kingdom’s obligations under the Convention to remove him in consequence of the refusal of leave. The IAT should have dismissed their appeals if they were not refugees in the IAT’s view. If however the IAT took the view that they were refugees then, in the absence of any indication by the Secretary of State of an appropriate safe third country the tribunal should have allowed the appeal and not adjourned it.

7. To suggest that before an appeal can be effective there must be removal directions is to fly in the face of paragraph 28 of the Second Schedule to the Immigration Act 1971 which provides that pending an appeal any removal directions shall be of no effect.