England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 October 2002

Mr Justice Keith:

Introduction

1. The Claimant came to the United Kingdom illegally. He claims that he did so on 25 September 1999 arriving here on a flight from Kenya. On 8 October 1999, he claimed asylum in the United Kingdom on the basis that he was a Somali national who was at risk of persecution in Somalia as a result of his membership of the Bajuni tribe. His claim for asylum was refused on 22 March 2001, the Secretary of State making it plain that he did not believe the Claimant’s account. He did not even believe that the Claimant was a Somali national. The Secretary of State also certified the Claimant’s claim for asylum under para. 9 of Sch. 4 to the Immigration and Asylum Act 1999 (“the 1999 Act”).
2. The Claimant was informed that directions would be given for his removal to Somalia as that was the country of which he claimed to be a national. Those directions were given by an immigration officer on 30 March 2001 on the ground that the Claimant was an illegal entrant. The giving of removal directions triggered the Claimant’s right to appeal against his removal from the United Kingdom. The Claimant exercised that right, but the adjudicator dismissed the appeal. In his determination which was promulgated on 12 December 2001, the adjudicator found that the Claimant was not a Somali, that he was a Kenyan and that he had used information which was readily available to him to support his claim. The skeleton argument which had been submitted to the adjudicator on the Claimant’s behalf had asserted that the removal directions were invalid since Somalia should not have been named as the country to which he was to be removed. The adjudicator made no finding about the validity of the removal directions. He upheld the certificate, and accordingly the Claimant had no further right of appeal.
3. In due course, the Claimant issued the current claim for judicial review. The decision which he challenged was the dismissal by the adjudicator of his appeal. No complaint was made about the dismissal of the appeal on asylum grounds. What was contended was that the adjudicator should have allowed the appeal against the removal directions because of their invalidity. The application for permission to proceed with the claim for judicial review was considered on the papers by Ouseley J. without a hearing. He refused the application. The Claimant renewed his application, and permission to proceed with the claim was granted by Goldring J. following an oral hearing.

The relevant statutory provisions

4. Para. 9(1) of Sch. 2 to the Immigration Act 1971 (“the 1971 Act”) empowers an immigration officer to give directions for the removal from the United Kingdom of an illegal entrant who has not been given leave to enter or remain in the United Kingdom. However, by para. 8(1)(c), those directions can only be given for the person’s removal to the following countries or territories:

“(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 Kingdom; or

(iv) a country or territory to which there is reason to believe that he will be admitted.”

5. There are three grounds on which such removal directions can be made the subject of an appeal: that they are invalid, that the wrong country has been named as the destination to which the appellant is to be removed, and that his removal from the United Kingdom would amount to a breach by the United Kingdom of its obligations under the 1951 United Nations Convention Relating to the Status of Refugees (“the Refugee Convention”). But the statutory provisions which provide appeals on each of these grounds are themselves subject to limitations. The three provisions are in section 66 (validity), section 67 (destination) and section 69 (asylum) of the 1999 Act. So far as is material, they provide as follows:

(i) Section 66: Validity of directions for removal

“(1) This section applies if directions are given for a person’s removal from the United Kingdom -

(a) on the ground that he is an illegal entrant;

(b) under section 10; or

(c) under the special powers conferred by Schedule 2 to the 1971 Act in relation to members of the crew of a ship or aircraft or persons coming to the United Kingdom to join a ship or aircraft as a member of the crew.

(2) That person may appeal to an adjudicator against the directions on the ground that on the facts of his case there was in law no power to give them on the ground on which they were given.

(3) This section does not entitle the person to appeal while he is in the United Kingdom unless he is appealing under section........69(5).”

(ii) Section 67: Removal on objection to destination

“(1) This section applies if directions are given under the 1971 Act for a person’s removal from the United Kingdom -

(a) on his being refused leave to enter,

(b) on a deportation order being made against him, or

(c) on his having entered the United Kingdom in breach of a deportation order.

(2) That person may appeal to an adjudicator against the directions on the ground that he ought to be removed (if at all) to a different country specified by him.”

(3) Section 69: Claims for asylum

“(5) 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 [Refugee] Convention.”

The Claimant’s original case

6. The case which the Claimant was advancing in the grounds attached to the claim form was that the Claimant had been appealing against the removal directions under both section 66(2) and section 69(5). No complaint was made about the dismissal of his appeal under section 69(5), but it was said that the invalidity of the removal directions meant that the appeal under section 66(2) should have been allowed.
7. This argument could not have succeeded. The only appeal which the Claimant made to the adjudicator was an appeal on asylum grounds under section 69(5). That was conceded before me by Mr Donald Gordon for the Claimant. The letter from the Claimant’s solicitors which enclosed the notice of appeal described the appeal as an appeal “against the Secretary of State’s decision to refuse the [Claimant’s] application for political asylum”, which is shorthand for saying that the Claimant was appealing against the removal directions on the ground that his removal would be contrary to the Refugee Convention. And in the grounds of appeal themselves, the Claimant was said to have “exercised his right of appeal........on the ground that removal in pursuance of the [removal] directions would be contrary to the UK’s obligation under the 1951 U.N. Convention”. The grounds of appeal admittedly referred to the fact that the Secretary of State had “set his removal to Somalia”, but that was for the purpose of illustrating a supposed inconsistency in the Secretary of State’s position: how could the Secretary of State still be contending that the Claimant was not a Somali national if Somalia was the country to which he was to be removed? Thus, since the only appeal to the adjudicator was an appeal on asylum grounds under section 69(5), there was no appeal under section 66(2) on the basis that the removal directions were invalid.
8. Ouseley J. could have refused permission to proceed with the claim for judicial review on this basis. He did not. He refused permission to proceed on another basis, namely that on a proper construction of section 66(2), it would not have been open to the adjudicator to allow an appeal under section 66(2) on the basis that the removal directions should not have required the Claimant to be removed to the country specified in those directions, when the ground for the issue of removal directions in the first place had been the fact that he was an illegal entrant.

The Claimant’s new case

9. The Claimant’s case is now formulated rather differently. The Claimant now challenges the validity of the removal directions directly. I shall come to the grounds on which the removal directions are said to be invalid in a moment, but their invalidity is said to have meant that the Claimant’s right of appeal under section 69(5) had not been triggered, with the result that the proceedings on the appeal were a nullity and the dismissal of the appeal was of no effect. The target decision on that argument is not so much the dismissal of the appeal under section 69(5), but rather the adjudicator’s failure to hold that there was no valid appeal before him at all.
10. No application to amend either the target decision or the grounds in the claim form was ever made. Moreover, although this argument was set out in a skeleton argument which was handed to Goldring J. on the hearing of the renewed application for permission to proceed with the claim for judicial review, it is apparent that Goldring J. gave permission to proceed only on the issue on which Ouseley J. had refused permission, namely the proper construction of section 66(2), because Ouseley J.’s construction was different from that adopted by the Immigration Appeal Tribunal in its starred determination in Zeqaj [2002] UKIAT 00232, to which Ouseley J.’s attention had not been drawn. The consequence is that permission to proceed with a claim for judicial review of the new target decision has not been obtained.
11. It follows that when this claim was heard by me the Claimant faced two procedural hurdles: the absence of any permission to proceed with the claim for judicial review to the extent that he wished to challenge the new target decision on the grounds which I have identified, and the absence of any amendment to the claim form to enable such an attack to be mounted. Ms Lisa Giovannetti for the Secretary of State did not wish these hurdles to prevent the court from deciding the claim on its merits, and she was prepared to agree to permission to proceed with the claim for judicial review to enable the new target decision to be challenged, and to suitable amendments to be made to the grounds. I therefore granted the Claimant permission to proceed with the claim for judicial review to enable the new target decision to be challenged. Since the hearing, Mr Gordon has sent me the proposed amendments to the claim form. The Secretary of State has not sought to make any representations on them. In the circumstances, and since the Secretary of State has not been prejudiced by these late amendments, I give the Claimant permission to amend the claim form, which can now be filed in the form in which it was sent to me.
12. Accordingly, the way is now clear for me to address the critical issues which now arise. If the country specified in removal directions is not a country within the four categories in para. 8(1)(c) of Sch. 2 to the 1971 Act, will that prevent the right of appeal under section 69(5) from being triggered? And if so, but if the appeal goes ahead nevertheless, will the proceedings on the appeal be a nullity, and any order on the appeal be of no effect?
13. Before I turn to these issues, though, there are three other points which I must make. First, no submissions were advanced to me on the proper construction of section 66(2), because (a) there was no appeal under section 66(2) in the present case, and (b) Zeqaj is itself the subject of an appeal. It is due to be heard in the Court of Appeal in December, and the principal issue in the appeal relates to the proper construction of section 66(2). Secondly, Ms Giovannetti made no submissions to me on the validity of the removal directions which were issued in the Claimant’s case. If there had been a direct challenge to the removal directions in the way in which the Claimant’s case had originally been formulated in the claim form, the Secretary of State may have wanted (a) to investigate whether Somalia was a country to which there was reason to believe that the Claimant would be admitted, even if he was not a Somali national, and (b) to place any relevant evidence before the court if that investigation produced promising results.
14. Thirdly, some thought was given to whether the hearing of the present claim for judicial review should be adjourned until after the appeal in Zeqaj had been determined. The reasoning went like this. In Zeqaj, the only appeal to the adjudicator was an appeal under section 69(5). But when the case got to the Immigration Appeal Tribunal, the Immigration Appeal Tribunal permitted the appellant to amend his grounds of appeal in order to appeal under section 66(2) as well, presumably on the basis that the Immigration Appeal Tribunal could exercise all the powers which the adjudicator had. Thus, the Immigration Appeal Tribunal did not have to deal with the issues which arise in the present case. But there is an argument for saying that there could have been no valid appeal under section 66(2) to the Immigration Appeal Tribunal, if the removal directions had not triggered the right of appeal under section 69(5), because of the limitation on the right of appeal under section 66(2) imposed by section 66(3). Since the appellant was in the United Kingdom at the time, and if his right of appeal under section 69(5) had not been triggered, it is possible that section 66(3) prevented the appeal under section 66(2) from going ahead. That itself turns on whether the words “he is appealing under section ........69(5)” in section 66(3) refer to a valid appeal under section 69(5). Thus, it may be that, in order to decide whether there could have been a valid appeal under section 66(2) in Zeqaj, the Court of Appeal will address the proper construction of section 66(3). And if it were to conclude that section 66(3) refers to a valid appeal under section 69(5), it may be that the Court of Appeal will then have to decide the issues which now arise in the present case. Having said all that, since there was no certainty that that would happen, it seemed to me that the right course was for the present claim for judicial review to proceed now.

The efficacy of the appeal under section 69(5)

15. The practice of adjudicators has been relatively consistent about what happens to an appeal under section 69(5) if the adjudicator concludes that the removal directions which trigger the appeal are invalid. In Abdullah (Appeal No. CC/30248/01), Ally (Appeal No. CC/49245/01), Suleiman (Appeal No. HX/35021/01) and Ali (Appeal No. HX/35414/01), each of the adjudicators concluded that there was no valid appeal under section 69(5) before him and made no order on the appeal. However, the decision in Ali was the subject of an appeal to the Immigration Appeal Tribunal: [2002] UKIAT 01437. The Immigration Appeal Tribunal concluded that in an appeal under section 69(5), the adjudicator has no jurisdiction to consider the validity of the removal directions. Their validity could only be questioned in a separate appeal in which it was appropriate to challenge their validity. Although the Immigration Appeal Tribunal did not say so, it must have had the appeals provided for by sections 66(2) and 67(2) in mind. Until their validity had been successfully challenged in such an appeal, removal directions had to be treated as valid.
16. I agree with the approach of the Tribunal in Ali. If specific statutory provisions have been enacted to enable the validity of removal directions to be challenged by way of an appeal to an adjudicator, it does not make any sense for the adjudicator to be able to consider the validity of removal directions when their validity has not been challenged by the procedure which the appellate scheme laid down by the 1999 Act envisaged. For the purposes of an appeal under section 69(5), the validity of the removal directions has to be assumed. The argument to the contrary assumes that the opening words “[i]f removal directions are given” in section 69(5) refer to valid directions, but there is no warrant for that assumption in view of the exercise of bespoke statutory provisions providing for the procedure by which their validity can be questioned.
17. That, I think, was also the view of the Tribunal in Zeqaj. The Tribunal said at [7]:

“The Adjudicator was correct to decide that he could not allow the appeal under section 69(5) since there was no material before him to suggest that to remove the applicant to Albania would be contrary to the Refugee Convention. But the effect of dismissing it was to leave the admittedly erroneous directions in being and so to leave the appellant (at least in theory) at risk of removal to Albania.”

It was to avoid the consequence of dismissing the appeal that the Tribunal permitted the application to amend the grounds of appeal to enable the appellant to appeal against section 66(2) as well. It is true that at [11] the Tribunal said that “the appeal under section 69(5) disappears”, but that was only because the appeal under section 66(2) was allowed. It is plain that, but for the success of that appeal, the appeal under section 69(5) would have been dismissed.

18. This view also accords with the language of sections 66(1), 67(1) and 69(5). They all include the phrase “if directions are given”. The construction of that phrase should be the same in each section. In sections 66(1) and 67(1), the phrase plainly does not refer to valid directions, because it is the validity of the directions which the appeals provided for by sections 66(2) and 67(2) are intended to determine. Thus, if the phrase in sections 66(1) and 67(1) does not refer to valid directions, the repetition of the phrase in section 69(5) does not refer to valid directions either.

Conclusion

19. It follows that the removal directions which the immigration officer gave in the case of the Claimant had to be treated by the adjudicator on the appeal under section 69(5) as valid in the absence of a separate appeal under sections 66(2) or 67(2) challenging their validity. He therefore did not err when he failed to hold that there was not a valid appeal under section 69(5) before him. This claim for judicial review must accordingly be dismissed.
20. Three final comments should be made. First, the conclusion which I have reached on whether the validity of removal directions can be questioned on an appeal under section 69(5) has meant that I have not had to address an argument which would have gone to the exercise of my discretion to grant relief. That argument is set out in the detailed grounds for opposing the claim:

“A does not seek to challenge the Adjudicator’s conclusion that he is not a Somali (nor even the upholding of the certificate on the basis that his claim was manifestly fraudulent). The Court should therefore approach this Judicial Review on the basis that A is not, as he claims, a Somali, but is a national or citizen of some other country which he refuses to disclose. It is open to him, at any stage, to tell the truth about his origins and ask the SSHD to remove him to the appropriate country. In the face of his refusal to do so, the Court should not exercise discretion in his favour and grant him Judicial Review.”

Secondly, it is presumably still open to the Claimant to lodge an appeal against the removal directions - under section 66(2) if the Court of Appeal in Zeqaj adopts the wider construction of section 66(2) favoured by the Tribunal, or under section 67(2) unless the fact that he was an illegal entrant prohibits him from relying on section 67(2) - provided that the adjudicator decides that there are special circumstances making it just to extend the Claimant’s time for lodging his appeal. Thirdly, in order to make it unnecessary for the parties to attend when this judgment is handed down, I propose to make a provisional order for costs. That is that there be no order as to the costs of the claim, save that the Claimant’s costs be assessed in accordance with the Community Legal Services (Costs) Regulations 2000. That order will take effect within 14 days of the handing down of the judgment, unless in the meantime either party notifies the Administrative Court Office that it wishes to contend that some other order should be made.