QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(sitting as a Deputy High Court Judge)
| THE QUEEN ON THE APPLICATION OF CHARLES JACOB OMONDI
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(instructed by Duncan Lewis & Co) for the Appellant
Mr Neil Sheldon (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 16 February 2009
Crown Copyright ©
Mr C M G Ockelton:
"(1) This section applies where a person has made an asylum claim and-
(a) his claim has been rejected by the Secretary of State, but
(b) he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).
(2) The person may appeal to an adjudicator against the rejection of his asylum claim."
"83A Appeal: variation of limited leave
(1) This section applies where–
(a) a person has made an asylum claim,
(b) he was granted limited leave to enter or remain in the United Kingdom as a refugee within the meaning of the Refugee Convention,
(c) a decision is made that he is not a refugee, and
(d) following the decision specified in paragraph (c) he has limited leave to enter or remain in the United Kingdom otherwise than as a refugee.
(2) The person may appeal to the Tribunal against the decision to curtail or to refuse to extend his limited leave."
"(3) An appeal under s.83 must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention."
Subsection (4) makes similar provisions in respect of an appeal under s.83A. Sections 85-87 are concerned with the process of deciding appeals. I do not need to mention them in any detail. For the most part they apply to all appeals, whether under ss.82, 83 or 83A. Of some importance for present purposes is s.85(1):
"(1) an appeal under s.82(1) against a decision shall be treated by the tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under s.82(1)."
"A person may not appeal under s.82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies"
In other words, the starting point is that there is no right of appeal from within the United Kingdom. The rest of this section sets out a considerable class of cases in which there is an in-country right of appeal. Amongst them is:-
"92(4) This section also applies to an appeal against an immigration decision if the appellant-
a) has made an asylum claim or a human rights claim while in the United Kingdom, ... ."
"94(1) This section applies to an appeal under s.82(1) where the appellant has made an asylum claim or human rights claim (or both).
(2) A person may not bring an appeal to which this section applies in reliance on s.92(4)(a) if the Secretary of State certifies that the claim or claims mentioned in sub-section (1) is or are clearly unfounded."
"78(1) While a person's appeal under s82(1) is pending he may not be –
(a) removed from the United Kingdom in accordance with a provision of the Immigration Acts; or
(b) required to leave the United Kingdom in accordance with the provisions of the Immigration Acts.
(4) this section applies only to an appeal brought while the appellant is in the United Kingdom in accordance with s.92."
"Section 83 gives a right of appeal to an adjudicator on asylum grounds only (see s.84(3)) when an asylum claimant is refused asylum but granted leave to enter or remain more than a year. If periods of less than 12 months are given, the right of appeal arises when an aggregate of 12 months leave has been given since the decision to refuse asylum was taken. There is no right of appeal under s.82 for a person in this position and the purpose of this provision is to provide a specific single issue asylum appeal."
The emphasis is Mr Sheldon's. Mr Sheldon also cites the judgement of Blake J in Etame v SSHD and AIT  EWHC 1140 (Admin). That case raised a not dissimilar question on the interpretation of s.92(4)(a): did that section give an in-country right of appeal to a person who had made an asylum or human rights claim, regardless of how long ago he had made that claim or in what circumstances? Or did it give an in-country right of appeal only in circumstances where the appeal related to the asylum or human rights claim? After considering the claimant's arguments based on the literal meaning of s.92(4)(a) and looking at the statutory scheme for appeals as a whole, Blake J said this:
" I have no difficulty in concluding that the consequences of the literal construction of s.92(4)(a) would indeed be absurd and give rise to arbitrary distinctions between individuals similarly placed for all relevant purposes. Parliament must have intended that the in-country right of appeal was to be given only where there was a nexus between the immigration decision formally generating the appeal and the representations or application that the immigration decision was responding to. Such construction is consistent with the requirements of an effective remedy where an important right is concerned and consistent with the minimal procedural rights the UK is required to afford asylum seekers whether by extrapolation from the binding international obligation of non refoulement reflected in Article 33(1) of the Refugee Convention or the Procedures Directives promulgated by the European Union …. Further, this construction is not inconsistent with or unduly restrictive of rights of appeal afforded by statute. In the immigration context it is not unusual to find appeal rights exercisable only from abroad. People who have no recognised right to enter or remain are not generally entitled to enter or remain for the purpose of appealing an adverse decision affecting such rights."