QUEEN'S BENCH DIVISION
Birmingham Civil Justice Centre
33 Bull Street
B e f o r e :
| THE QUEEN ON THE APPLICATION OF
|- and –
|FIRST-TIER TRIBUNAL (IAC)
SECRETARY OF STATE FOR THE HOME DEPARTMENT
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The Defendant did not appear and was not represented.
Mr Mandalia (instructed by the Treasury Solicitors) appeared on behalf of the Interested Party.
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MR JUSTICE BEATSON:
"(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 the Tribunal against the rejection of his asylum claim."
"The majority of those that [sic] claim asylum are keen to ensure that they are able to remain in the UK lawfully and are content to accept the grant of ILR as conferring upon them a lawful basis upon which they remain in the UK. It is a waste of the limited resources available in such cases for the case worker to nonetheless investigate and determine the asylum application itself. UKBA recognises, however, that a person who has made an application for asylum is entitled to have a decision made upon the application and that in some circumstances there may be a good reason why an applicant would wish to have a decision upon the asylum application, notwithstanding the grant of ILR or some other form of leave to remain. The notification provided to the applicant and his representatives therefore advised that unless a response is received within 14 days specifically requesting that the asylum application is to be continued, the SSHD will assume that the asylum application has been withdrawn. In cases where the request is made to continue with the asylum application a CRD case worker makes a decision on that application. Where the asylum claim is refused, it carries the right of appeal under section 83 of the 2002 Act, notwithstanding the grant of leave to remain provided that the leave to remain is for a period in excess of twelve months."
"2. A right of appeal only lies against a relevant decision. A relevant decision is defined by the 2005 Procedural Rules as one against which there is an exercisable right of appeal... Section 83 of the 2002 Act provides for a right of appeal on the rejection of an asylum claim where leave to enter or remain for a period of one year or more is granted. However, whilst the respondent's present decision grants indefinite leave to remain, it does not reject his asylum claim. As such I do not consider that there is a relevant decision.
3. By rule 9 of the 2005 Procedural Rules where a person has given notice of appeal to the Tribunal and there is a relevant decision, the Tribunal shall not accept the notice of appeal and, beyond notifying the person giving the notice and the respondent, shall take no further action."
(Checked to audio – no bundle documents available)
"1. ... Section 83 does not assist the appellant given that he has already made an asylum claim which was rejected by the Secretary of State and there was a Tribunal hearing in which his asylum appeal was dismissed.
2. The respondent having apparently not responded to the claim made on 6 November 2009, the appellant does not have any right of appeal against the grant of ILR. There is no jurisdiction to hear and determine the purported appeal."
"2. Section 83 [of the 2002 Act] applies when a person has had an asylum claim rejected, but has been granted leave to remain for more than one year. However, I am satisfied that section 83 only applies where the grant of leave is made at the same time as the rejection of the asylum claim. That does not apply to this appellant and, accordingly, I am satisfied that there is no relevant immigration decision and I am satisfied that she does not have a valid appeal."
The covering letter was in similar terms to the covering letters sent in respect of S and D.
"An appeal under section 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."
Express statutory provision for appeal against a refusal of asylum was confirmed by section 83 of the 2002 Act, although section 8 of the Asylum and Immigration Act 1993 had been construed to entitle a person whose asylum claim had been refused to an appeal even where he was granted leave to remain - see Saad & Ors v SSHD  EWCA Civ 2008.
"The position on appeals has now been clarified by the much more detailed provisions of the 2002 Act."
His Lordship also stated at  that:
" Section 83 is the only section which gives the right to appeal against a decision refusing the applicant asylum and as such it can be legitimately categorised as a "status appeal" as opposed to an appeal against a particular immigration decision."
"It is nevertheless a restricted right; it is in the first place, restricted to persons who have been given leave to enter for a period of more than twelve months."
Secondly, he stated (see ):
"…the grounds of appeal must, pursuant to section 84(3) be that removal (if threatened) would breach this country's obligations under the Refugee Convention."
Pill LJ, who delivered a concurring judgment, accepted (at ) that:
"… the purpose of section 83 ... was to provide a specific single-issue asylum appeal."
"Where a person—
(a) is served with notice of a decision to reject an asylum claim; and
(b) on the date of being served with that notice does not satisfy the condition in section 83(1)(b) of the 2002 Act, but later satisfies that condition,
paragraphs (1) and (2)(b) apply with the modification that the time for giving notice of appeal under section 83(2) runs from the date on which the person is served with notice of the decision to grant him leave to enter or remain in the United Kingdom by which he satisfies the condition in section 83(1)(b)."
"(2) The decision-maker must give written notice to a person of the relevant grant of leave to enter or remain if, as a result of that grant, a right of appeal arises under section 83(2) of the 2002 Act."
"42. Whilst there may be cases where the process of admission and removal may give rise to two immigration decisions and potentially two occasions for an appeal, this is no indication that in every case Parliament concluded that every subsequent appeal should be heard in country. If two claimants seek to revoke a deportation order purely on the basis of compassionate circumstances personal to them that do not engage a protection claim too it is entirely illogical that they should be treated differently as to whether their appeal should be heard in country by the irrelevant happenstance of whether one of them had made a protection claim in the past that has no bearing on their present predicament or claim to remain.
43. 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."
"The SSHD interprets section 83 as (applying where a person has made an asylum claim which has been rejected but leave to enter has been granted on some other ground and that leave is for a total that exceeds one year. The result of this is that a person may appeal for the First-tier Tribunal against the decision to refuse refugee status even when indefinite leave had been granted. However, it is a precondition to an appeal under section 83 that the asylum claim has been rejected by the Secretary of State and that therefore requires a decision to be made by the Secretary of State upon the asylum claim. The decision made by the Secretary of State is made upon the basis of the evidence available at the date of consideration and therefore reflects the applicant's circumstances at that time."