QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Claimant - and - THE 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)
Robin Tam (instructed by the Treasury Solicitor for the Defendants)
(AS APPROVED BY THE COURT)
Crown Copyright ©
Mr Justice Newman :
“I have considered all the information available to me and I am satisfied that you are an illegal entrant as defined in Section 33(1) of the Immigration Act l971.”
“LIABILITY TO DETENTION A:You are therefore a person who is liable to be detained pending the completion of arrangements for dealing with you under the Act. I propose to give directions for your removal from the United Kingdom in due course and details will be given to you separately
in ADMISSION BI hereby authorise your temporary admission in the United Kingdom …”
- Because of the claimant’s appeal issued on asylum grounds, the proposal to give directions for the claimant’s removal was not implemented until the completion of the appeal process. In accordance with the terms of his temporary admission the claimant was required to report to the authorities and he did so on l6 April 2001, upon which occasion he was detained by the Immigration Officer on the grounds that his removal to Sri Lanka was imminent. The Tamil Welfare Associations (Newham) UK (TWAN) informed the Secretary of State, by fax, that it was the intention of the claimant to pursue a Human Rights Act application under Section 65 of the Immigration and Asylum Act 1999, the section having come into force on 2 October 2000. Notice was also given of an intention to submit a fresh application for asylum.
- A second notice was also served on l4 September 2000. Where convenient to do so I shall refer to this notice as “the second notice”. It was headed “Immigration Act 1971 and Asylum and Immigration Appeals Act l993. Notice of Removal to an Illegal Entrant - Application for Asylum Refused”. The Notice read:
“On l4 ‘00 (presumably a reference to l4 September 2000) you were served with a notice, IS l5lA, that you are an illegal entrant as defined in Section 33(1) of the Immigration Act l971.
You have applied for asylum in the United Kingdom. The Secretary of State has decided to refuse your application for asylum for the reasons stated on the attached notice.
“REMOVAL DIRECTIONS A:Directions have now been given for your removal from the United Kingdom by scheduled airline to SRI LANKA at a time and date to be notified.
RIGHT OF APPEAL B:You are entitled to appeal to the independent appellate authorities against these directions on the following grounds:(3) Before removal, that removal in pursuance of these directions will be contrary to the United Kingdom’s obligations under the l95l United Nations Convention relating to the Status of Refugees
(4) After removal, that there is no power in law to give directions.
The attached notice tells you how to appeal and where advice and assistance can be obtained.”
That was signed by an Immigration Officer and dated l4 September 2000. It follows these notices were served prior to the conferment of a right of appeal under Section 65 of the 1999 Act and as such, so far as they comprise or evidence decisions, the relevant decision or decisions fall to be determined in accordance with the commencement and transitional provisions governing the introduction into law of Section 65. On this there is no issue between the parties. The principal argument turns upon whether the issue of a third notice headed: “Decision to issue removal directions to an illegal entrant/other immigration offender or a family member of such a person” dated 21 April 2001 constitutes a decision giving rise to a right of appeal under Section 65. Where convenient to do so I shall refer to this notice as “the third notice”.
- The claim for judicial review is made on two grounds: (1) that the Immigration Appeal Tribunal erred in refusing leave to appeal in connection with the asylum claim, (2) that the Secretary of State acted unlawfully in detaining the claimant and by issuing the removal directions dated 21 April 2001, which resulted in the claimant being returned to Colombo on 24 April 2001. Whilst in transit to Colombo, Penry-Davey J ordered the Secretary of State to return the claimant to the United Kingdom. The order was complied with. It is submitted that the Secretary of State acted unlawfully because at the date the removal directions were issued, namely 21 April 2001, the claimant was entitled to appeal on human rights grounds pursuant to Section 65 of the Immigration and Asylum Act l999. The Secretary of State disputes that claim because he submits that between 2 October 2000 and the claimant’s removal there has been no decision capable of giving rise to a claim under Section 65(1) of the l999 Act. The decision upon which the claimant relies is the written Notice of Decision dated 21 April 2001, signed by an Immigration Officer, headed “Notice of Decision” and beneath a further heading, “Decision to issue removal directions to an illegal entrant ....” Under paragraphs 9 and l0 of schedule 2 to the Immigration Act l971 and Section l0 of the Immigration and Asylum Act l999”. The notice reads:
“You are:A) an illegal entrant as defined in section 33(1) of the Immigration Act l97lB) a person subject to administrative removal in accordance with section l0 of the Immigration and Asylum Act l999 as:(i) a person who has failed to observe a condition attached to leave to enter or remain; or(3) a person who has obtained leave to remain by deception; or(4) directions have been given to a person to whose family you belongI have therefore issued directions for your removal to Sri Lanka.REMOVAL DIRECTIONSA. Directions have now been given for your removal from the United Kingdom by UL 506 to SRI LANKA at l550 hrs on 24 April 2001.
RIGHT OF APPEALB. You are entitled to an appeal to an adjudicator against these directions on the following grounds:(3) After removal, that on the fact of your case there is in law no power to give them on the ground on which they were given.”
5. Whether the issue of removal directions is a “ .... decision under the Immigration Act relating to that person’s entitlement to enter or remain in the United Kingdom ....” is an important one. If it is, a person in receipt of such a notice may allege that the authority has, in taking that decision, breached his human rights and he may appeal to an Adjudicator against the decision. If it is not a decision within the meaning of Section 65(1), an illegal entrant has a right of appeal, but according to the argument for the Secretary of State on this application, the relevant decision is not the issue of removal directions, which is to be regarded as purely administrative in character, but the decision in principle, reflected in and evidenced by the second notice, whereby he was informed: “Directions have now been given for your removal from the United Kingdom by scheduled airline to Sri Lanka at a time and date to be notified”. It is to be noted that it has been an essential part of the argument for the Secretary of State that the second notice was not the relevant decision. The relevant decision must be taken to have preceded it. Obviously it preceded 2 October 2000 and if the argument is correct this claimant did not enjoy a right of appeal on human rights grounds. The importance of the issue between the claimant and the Secretary of State does not rest simply in resolving the question so far as it affects those caught by the transitional provisions, because the Secretary of State submits a point of general importance for the continued operation of Section 65(1) is involved and that its resolution depends upon the true interpretation of Section 65(1) and not the commencement provisions. He submits that if the claimant’s contention is correct and removal directions can give rise to a right to appeal on human rights grounds, then an alarming potentiality for abuse arises because there will always be a need for fresh directions to be issued and claimants will be able to repeat human rights claims each and every time such fresh directions are issued. He submits that such an impairment to the speedy and effective disposal of appeals cannot be in accordance with the intention of the legislature.
The Statutory Framework
“If directions are given as mentioned in section 66(1) for the removal of a person from the United Kingdom, he may appeal to an adjudicator on the ground that his removal in pursuance of the directions would be contrary to the Convention”.
Section 66 is headed: “Directions for removal”.
“Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as in a case within paragraph 8 above are authorised by paragraph 8(1)”
I must set out paragraph 8(1) in full, since its terms have assumed significance in this case:“8(1) Where a person arriving in the United Kingdom is refused leave to enter, an immigration officer may, subject to sub-paragraph (2) below -(a) give the captain of the ship or aircraft in which he arrives directions requiring the captain to remove him from the United Kingdom in that ship or aircraft; or
(b) give the owners or agents of that ship or aircraft directions requiring them to remove him from the United Kingdom in any ship or aircraft specified or indicated in the directions, being a ship or aircraft of which they are the owners or agents; or
(c) give those owners or agents [ .... ] directions requiring them to make arrangements for his removal from the United Kingdom in any ship or aircraft specified or indicated in the direction to a country or territory so specified being either -(i) a country of which he is a national or citizen; or
(ii) a country or territory in which he has obtained a passport
or other document of identity; or
(iii) a country or territory in which he embarked for the United
(iv) a country or territory to which there is reason to believe that he will be admitted.”
The relevant exercise of power was, according to the third notice, also under Section l0 of the l999 Act, which is headed “Removal of certain persons unlawfully in the United Kingdom”. Section l0(1) provides:
“A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer if -(a) having only limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;
(b) he has obtained leave to remain by deception; or
(c) directions (“the first directions”) have been given for the removal, under this section, of a person (“the other person”) to whose family he belongs”.
Subsection 6 of Section l0 provides that
“Directions under this section -(a) may be given only to persons falling within a prescribed class”
and subsection 7 provides:
“In relation to any such directions, paragraphs l0, ll, l6 to 18, 21 and 22 to 24 of Schedule 2 to the l97l Act (administrative provisions as to control of entry), apply as they apply in relation to directions given under paragraph 8 of that schedule:(8) Directions for the removal of a person given under this section invalidate any leave to enter or remain in the United Kingdom given to him before the directions are given or while they are in force”.
“This section does not entitle a person to appeal while he is in the United Kingdom unless he is appealing under section 65 or 69(5).”
Because Section 10(8) of the 1999 Act provides that removal directions “ ... invalidate any leave to enter or remain ...”, the Secretary of State has argued that in such cases removal directions issued to an illegal entrant are to be regarded as giving rise to a right of appeal under Section 65. The point will require examination. The claimant points to Section 66, which recognises the issue of removal directions as capable of giving rise to a Refugee Convention appeal, as indicating the falsity of the argument that they cannot give rise to a human rights appeal. For completeness it can be noted that Section 67 of the l999 Act entitles a person refused leave to enter or against whom a deportation order has been made, or who has entered the United Kingdom in breach of a deportation order, to object to removal directions on the grounds of objection to destination. There is a right of appeal accorded but that section does not extend to illegal entrants.
“This section applies where a person (“the appellant”) has appealed under the Special Immigration Appeals Commission Act l997 or this Act and that appeal (“the original appeal”) has been finally determined.”
Subsection (2) provides
“If the appellant serves a notice of appeal making a claim that a decision of a decision-maker was in breach of the appellant’s human rights, the Secretary of State may certify that in his opinion -
(3) the appellant’s claim –(a) could reasonably have been included in a statement required from him under section 74 but was not so included, or(b) could reasonably have been made in the original appeal but was not so made;
(b) one purpose of such a claim would be to delay the removal from the United Kingdom of the appellant or any member of his family; and
(c) the appellant had no other legitimate purpose in making the claim.
(3) On the issuing of a certificate by the Secretary of State under subsection (2), the appeal, so far as relating to that claim, is to be treated as finally determined.”
Section 74, to which reference is there made, is the section of the l999 Act which lays down the one stop procedure and imposes a duty to disclose grounds for appeal and so forth. Subsection (4) of section 73 states:
“Subsection (5) applies if a notice under section 74 was served on the appellant before the determination of his original appeal and the appellant has served a further notice of appeal.
(5) The Secretary of State may certify that grounds contained in the notice of appeal were considered in the original appeal.
(6) On the issuing of a certificate by the Secretary of State under subsection (5), the appeal, so far as leading to those grounds, is to be treated as finally determined.”
Although not directly in point, subsection 8 of Section 73 can also be referred to. It provides:
“(8) The immigration officer or, as the case may be, the Secretary of State, may certify that in his opinion -
(a) one purpose of making the application was to delay the removal from the United Kingdom of the appellant or any member of his family; and
(b) the appellant had no other legitimate purpose for making the application.”
It is common ground that Section 73 of the l999 Act is specifically designed to deal with repetitious and abusive applications and appeals, including human rights appeals. So far as repeated asylum claims are concerned the position was established by R v The Secretary of State for the Home Department ex parte Onibiyo 1996 QB 768 CA, where (among other issues) it was held that since the determination of all asylum applications was for the Secretary of State in the first instance, it is for the Secretary of State to decide whether or not a fresh claim to asylum, if made, is sufficiently different from an earlier claim so as to admit of a realistic prospect a favourable view could be taken of the new claim, despite the unfavourable conclusion reached on the earlier claim.
“(i) to refuse an application for leave to enter or remain in the United Kingdom;
(ii) to vary, or to refuse to vary, any limited leave to enter or remain in the United Kingdom, which has the result mentioned in section 74(2)(a); or
(iii) to make a deportation order under a person under section 5(1) of the 1971 Act as a result of his liability to deportation under section 3(5) of that Act.”
Subsection 2 states:
“Subject to section 72(2), the appellant is to be treated as also appealing on any additional grounds -(a) which he may have for appealing against the refusal, variation, decision or directions in question under any other provision of this Act; and
(b) which he is not prevented (by any provision of section 76) from relying on.
(3) In considering-(a) any ground mentioned in Section 69, or
(b) any question relating to the appellant’s rights under Article 3 of the Human Rights Convention,
the appellate authority may take into account any evidence which it considers to be relevant to the appeal (including evidence about matters arising after the date about which the decision appealed against was taken).”
In this regard it is relevant to set out Section 65(3) of the l999 Act, which provides:
“Subsections (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Act relating to the appellant’s entitlement to enter or remain in the United Kingdom, acted in breach of the appellant’s human rights.”
Subsection 4 provides:
“The adjudicator, or the Tribunal, has jurisdiction to consider the question.
(5) If the adjudicator, or the Tribunal, decides that the authority concerned acted in breach of the appellant’s human rights, the appeal may be allowed on that ground.
The Issue on Section 65 of the Act
“In my judgment, the key words of Section 65 of the l999 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 instructions 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: Cf the decision of the Court of Appeal in St Brice v London Borough of Southwark:  EWCA 1138.”
Illegal entrants, like the claimant in this case, who entered clandestinely, have no entitlement to be here pursuant to “any decision declaring, creating or terminating a right to enter or remain”. If they have a right it has to be derived either from the Refugee Convention or the ECHR or both.
For reasons which I shall come to later in this judgment I have concluded that the argument in this case has proceeded on significantly different lines to the argument advanced to Stanley Burnton J.
“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 United Kingdom, 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 McDonald’s Immigration Law and Practice, 5th 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).”
As I read the judgment the learned Judge is drawing a distinction between determinations as to the existence or non existence of a right and the machinery for removal. On this basis the first notice would qualify and a decision to issue removal directions would not.
(1) Section 65(1) does not apply to all decisions made under the Immigration Act;
(2) it applies only to “decisions declaring, creating or terminating a right to enter or to remain, or affecting the terms of such a right”;
(3) the section does not apply to “administrative decisions such as a decision to enforce that requirement”;
(4) a decision to make removal directions is not “a decision relating to a person’s entitlement to enter or to remain since it is predicated on the absence of such entitlement”.
Mr Tam submitted that the Judge was not attempting to define the range of decisions which could be regarded as within Section 65(1). He submitted that the Judge was simply isolating the reason why removal directions were not decisions under Section 65(1), namely because they were administrative decisions and merely part of the machinery for removal.
“I think the decision of the majority in that case was right that the order in question, potentially affecting, as it did, the composition of a jury for a forthcoming trial was, as Shaw LJ put it at p.545, ‘closely related to trial on indictment’, or as I would prefer to say, was an order affecting the conduct of the trial.”
A little later Lord Bridge continued:
“It must not be thought that in using the phrase ‘any decision affecting the conduct of a trial on indictment’ I am offering a definition of a phrase which Parliament has chosen not to define. If the statutory language is, as here, imprecise, it may well be impossible to describe in the abstract a precise test to determine on which side of the line any case should fall and, therefore, necessary to proceed, as Mr Henderson for the appellant submitted that we should, on a case by case basis.”
Although I did not understand that the case of In re Smalley was cited to Stanley Burnton J, it would seem from the terms of his judgment that he approached the issue in the manner adopted by Lord Bridge in that case. Specifically he identified Section 10(8) of the 1999 Act as affecting an entitlement to enter or remain.
The proper interpretation of Section 65(1)
The Tribunal Decision
MR JUSTICE NEWMAN: Having dealt with those points I now hand down the judgment as a draft judgment subject to the points which I have identified, which I would be grateful for the shorthand writer to deal with. I turn to the formal draft order which is proposed. I have no difficulty in any part of this, save for the issue on paragraph 4. Is that the only issue which counsel wish me to deal with?
MR TAM: My Lord, on the draft order that is right. My Lord, our point is very simple. The issue which your Lordship has decided is but one step in the substance of this claimant's claim. Originally the claim was very much to do with whether or not he should have a right of appeal but, as your Lordship knows, he has now been given a right of appeal, and so that part of the claim has effectively fallen away. The only real point of pursuing this claim now for this claimant is that he wishes to claim damages for his removal from the UK and his return here. He would have to get over a number of hurdles. Before your Lordship he surmounted only the first, and there are many other arguments which would stand in his way. It may be at the end of the day that even that part of the claim will fail. We say that in those circumstances it might be regarded overall as unfair if the Secretary of State has to a pay a large proportion of the costs of this claim, notwithstanding the way that it has been split up and dealt with. We do not know at this stage, I am not suggesting that any substantial order ought to be made, we simply say that it might be a fairer position if the costs of this claim were to be reserved until final disposal. At that time an overall view can be taken of the merits of the claimant's case. One can see how much he has succeeded in and how much he has failed in, and at that stage one can make an overall assessment of what the fair costs order should be.
MR COX: It is a matter for your Lordship, but we say that the impetus from the CPR is that costs should be dealt with at the earliest possible stage. As I understand it, there is no dispute that if the matter ended here, as it were, that the 80 per cent figure is an accurate reflection of the proportion of the costs that we have expended on arguing the issue on which we have succeeded today, taking into account, and giving credit to the Treasury for the costs that they have incurred succeeding on the issue that we have lost on, and the other issues that have not been decided. We say that it would be best if this matter were settled now so that the judge on the next occasion does not have to trawl right back to the beginning and make an assessment. Your Lordship is in the best position to say at this stage the way that costs should be divided up. If the Secretary of State succeeds in the Court of Appeal then obviously the costs order will be altered, but we say that your Lordship should make that order at this stage.
MR JUSTICE NEWMAN: Thank you. I am not inclined to make an order at this stage on the basis of any proportion of the claimant's costs in the absence of more detailed information, and indeed more detailed consideration. Whilst four-fifths may be a good guess, it seems to me to have a sufficiently arbitrary element to lead to it not being the course that should be taken. I do not anticipate any judge, if it is not myself, who hears the balance of the claim having any difficulty in dealing with the issue of costs, which seems to me will, to a substantial extent, involve consideration of the value of this part of the claimant's success and taking account of any success that there may be derived from it in the future. It seems to me far better that the judge at the hearing should deal with it all. There will be no paragraph 4 in the order.
MR COX: Would your Lordship just reserve the costs?
MR JUSTICE NEWMAN: The costs shall be reserved.
MR COX: I am grateful.
MR TAM: My Lord, the last matter, certainly from our side, is that of permission to appeal. As your Lordship knows --
MR JUSTICE NEWMAN: It is plainly a case, Mr Tam, in which you should have permission to appeal. There are two conflicting decisions and the Court of Appeal should say which one is correct.
MR TAM: My Lord, I am grateful.
MR JUSTICE NEWMAN: Thank you.