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URL: http://www.bailii.org/uk/cases/UKIAT/2004/00174.html
Cite as: [2004] UKIAT 00174, [2004] Imm AR 359, [2004] UKIAT 174

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APPEAL No. MY (Disputed Somali nationality) Somalia * [2004] UKIAT 00174

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 15 December 2003

Date Determination notified: 02 June 2004

Before

The Honourable Mr Justice Ouseley (President)

Mr D K Allen (Vice President)

Mr A Jordan (Vice President)

Between

MY	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr Manjit Gill QC, instructed by Z Ali Dhanji, Solicitors

For the Respondent: Mr J Singh, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction

This is an appeal against the determination of an Adjudicator, Mr I J French, promulgated on 25^th September 2001. The Appellant claims to be a citizen of Somalia, a member of the Bajuni tribe. He arrived in the United Kingdom on 3rd June 2000 and claimed asylum immediately on arrival at Heathrow. Following three interviews, his claim was refused by a letter dated 26^th March 2001. The Secretary of State refused his claim on the basis that he was not a Somali. The Secretary of State said, however, that he would be giving directions for the Appellant's removal to Somalia but solely in order to enable the Appellant to appeal, and that if his appeal was not upheld, the Secretary of State would seek to establish the Appellant's true identity.

The Secretary of State also sent a Notice signed by an Immigration Officer entitled "Notice of Refusal of Leave to Enter" dated 29^th March 2001. After stating that leave to enter had been refused, the Notice continued under the heading of "Removal Directions": "I have given/propose to give directions for your removal by a scheduled service at a time and date to be notified to (country/territory) SOMALIA". It said that the Appellant was entitled to appeal "against the decision to refuse you leave to enter on the ground that your removal in pursuance of these directions" would be contrary to the Geneva Convention. The footnote directed attention to section 69(1) of the Immigration and Asylum Act 1999.

The Adjudicator concluded that:

"… even to the lower standard the Appellant has not established that he is of Somalian Nationality but on the evidence before me I have not been able to draw any conclusions as to his correct nationality.

"Bearing in mind my findings as to the Appellant's credibility and that he is not of Somalian Nationality I did not find that he has established that he is a refugee within the meaning of the Refugee Convention. Nor do I find that there are substantial grounds for believing his evidence with regard to the human rights aspect of the matter. That is not at all to say that I believe that the Appellant should be returned to Somalia. Such a course would be quite wrong as he is not a national of that country, the more so bearing in mind the objective evidence relating to the conditions there."

The appeals against the asserted breaches of the two Conventions were dismissed. Nothing more was said about the removal provisions. The grounds of appeal to the Tribunal took issue with the finding that the Appellant was not Somali, and leave was granted because of the passages set out above. The Tribunal determination of 19^th February 2002 was brief. It pointed out that if it was said that the Appellant was not a Somali, the "removal directions", as they were described, were incorrect and outside the provisions of paragraph 8(1)(c) of Schedule 2 to the Immigration Act 1971; the type of problem which arose had been dealt with by the Tribunal in its decision in Zecaj. It allowed the Appellant's appeal.

The matter was remitted to the Tribunal on 15^th November 2002 upon the Secretary of State's appeal to the Court of Appeal, following written submissions only and an indication by the presiding Lord Justice. Although there is no judgment, it appears to have been agreed that the Tribunal erred in its approach to the so-called "removal directions", because the appeal was brought only under section 69(1) and not under section 69(5) of the 1999 Act. The Tribunal had also relied wrongly on its decision in Zecaj, which was distinguishable. Indeed, shortly after, that decision was overruled by the Court of Appeal anyway, [2002] EWCA Civ 1919, [2003] Imm AR 298.

The Statutory Provisions

Section 69 deals with the Refugee Convention. Section 69(1) and (5) provide:

"69(1) A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to an adjudicator on the ground that his removal in consequence of the refusal would be contrary to the Convention.

(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 convention."

The other provisions of section 69 deal with limited leave or where a deportation order or decision has been made.

The Appellant claims also to be appealing under the ECHR provisions, which we accepted. Section 65(1) and (5) provide:

"65 (1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, racially discriminated against him or acted in breach of his human rights may appeal to an adjudicator against that decision … ."

(5) If the adjudicator, or the Tribunal, decides that the authority concerned

(a) racially discriminated against the Appellant; or

(b) acted in breach of the Appellant's human rights,

the appeal may be allowed on the ground in question."

Section 66(1) to (3), which was relied on as an interpretative aid, provides:

"66(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 a person to appeal while he is in the United Kingdom unless he is appealing under section 65 or 69 (5)."

Section 59(3) deals with the position where a person refused leave to enter is appealing against that decision, and is served with removal directions or with Notice "that any directions which may be given for his removal … will be … to a country or one of several countries specified in the Notice."

Section 59(4) entitles the recipient to "object" to the country to which he would be removed, or to the country or countries specified in the Notice. But the section contemplates that such an objection to removal must specify the alternative country to which he is to be removed, if he is to be removed at all.

Section 67 deals with removal directions given under the 1971 Act, where a person has been refused leave to enter. It provides for an appeal to an Adjudicator against the directions on the ground that, if he is to be removed, it should be to a different country, but again he has to specify to which country. There are other restrictions on that right of appeal.

Paragraphs 21(1) and (2) of Schedule 4 to the 1999 Act are relevant to the scope of or restrictions on the appeals under sections 69 and 65. They provide:

"21(1) On an appeal to him under Part IV, an adjudicator must allow the appeal if he considers-

(a) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case, or

(b) if the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently,

but otherwise must dismiss the appeal.

(2) Sub-paragraph (1) is subject to paragraph 24 and to any restriction on the grounds of appeal."

Paragraph 22(6) applies the same provision to the Tribunal.

Paragraph 10 of Schedule 4 to the 1999 Act provides:

"If a person in the United Kingdom appeals under section 59 or 69(1) on being refused leave to enter, any directions previously given by virtue of the refusal for his removal from the United Kingdom cease to have effect, except in so far as they have already been carried out, and no directions may be so given while the appeal is pending."

There is a suspensory provision in paragraph 20 in relation to section 65 appeals.

Finally, paragraph 8(1)(c) of Schedule 2 to the 1971 Immigration Act, deals with the countries for which removal directions may be set when a person is refused leave to enter:

"(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."

By paragraph 10(2), the Secretary of State, instead of giving removal directions in which the carrier is specified, may give removal directions to those countries "in accordance with arrangements to be made by him".

The Submissions

Mr Manjit Gill QC for the Appellant pursued the grounds of appeal originally raised, but his main points were rather wider. He contended that in this sort of case, where the Secretary of State did not accept the asserted nationality of the Appellant and issued, as he described them, "removal directions" to a country of which he said that the Appellant was not a national, those directions were not in accordance with the law as set out in paragraph 8(1)(c) of Schedule 2 to the 1971 Act and had not been issued pursuant to the proper exercise of his discretion. Mr Gill contended that it was inherent in both an appeal under section 69(1) in relation to the Geneva Convention, and under section 65(1) in relation to human rights, that they had to be considered in the light of the "removal directions", which were also to be treated as appealed against in such appeals. It would be unduly narrow to read those sections as governed by the limitations in paragraph 21(2) of Schedule 4 to the 1999 Act, and would lead to multiplicity of appeals contrary to the plain intent of the Act. An Appellant would have such directions hanging over him and would be vulnerable to their sudden activation. If the "removal directions" were held to be unlawful, the Secretary of State would still be able to set such directions after reaching, as he has said he would, a conclusion as to the Appellant's true nationality.

The refusal letter was wrong in saying the "directions" would be issued "solely" to provide a basis for appeal since, had the appeal been by a Somali national which failed on its merits, they would have been capable of being acted on. The Tribunal in Asif Khan [2002] UKIAT 04412, was wrong to conclude that removal directions could not be challenged in a pure asylum appeal and in any event there was also a human rights appeal here. The Tribunal must have been of the view that the Appellant could not be removed to Somalia without breach of his human rights, and his appeal should be allowed on that ground.

Mr Singh for the Respondent said that Mr Gill's submissions ignored the differences between section 69(1) and 69(5). If it had been intended to allow the validity of removal directions to be challenged in a subsection (1) appeal, the Act would have so provided, as it had done in subsection (5) and in section 66. He relied upon the Tribunal decision in Jafar [2002] UKIAT 05184. In these circumstances if the Appellant was not a Somali, he was not a refugee. Paragraph 21(2) of Schedule 4 to the 1999 Act did indeed operate so as to restrict the rights of appeal and there was no appeal available in respect of the validity of any removal directions in this instance. On the evidence in this case it was impossible for the Adjudicator or the Tribunal to address the question of human rights upon the Appellant being returned to Somalia.

Conclusions

It is not uncommon for challenges to be made to immigration decisions on the grounds that the country of destination specified in removal directi0ns is not one to which the Appellant can be sent and that it falls outside the provisions of paragraph 8 of Schedule 2 to the 1971 Immigration Act. Sometimes the problem arises because of administrative error; sometimes as here, it arises because there is a dispute as to the nationality of the Appellant. The issues which arise are: did the Notice actually contain or evidence removal directions? Is there a specific statutory appeal available against them in this case if they were removal directions? If not, what is the relevance here of the stated country of removal in the human rights and asylum appeals under sections 65(1) and 69(1)?

First, does the Notice issued by the Respondent dated 29^th March 2001, either constitute or evidence removal directions at all? It refers to "removal directions" in the heading; and in his letter of 26^th March 2001, the SSHD said that "directions" would be given for Somalia. Removal directions, it is true, do not have to contain the name of the carrier or the date and time of removal; paragraph 10 of Schedule 2 envisages that removal directions can refer only to arrangements to be made in certain circumstances; see Jazayeri 16^th May 2001* [01/TH/0110]. The Notice there did not itself contain the removal directions by its own terms; it evidenced the decision relating to such directions sufficiently for paragraph 10 of Schedule 2. However, this Notice is additionally unclear as to what the position actually is: whether such directions may have been given or may be proposed to be given at some future time but have not yet been given. The letter which precedes the Notice says that they will be given, and yet the Notice still leaves the position open. Such dubiety cannot constitute or evidence removal directions.

The Secretary of State may have assumed in his letter of 26^th March 2001 that a country of removal needed to be specified in order for an appealable decision to be notified in accordance with the Immigration and Asylum Appeals (Notices) Regulations 2000, SI 2246, regulations 4 and 5, and thus appealed. These provisions require written notice of an appealable decision to contain "a statement of the country to which he is to be removed" "if it relates to the giving of removal directions". He may have been of the view that his letter or Notice "related to" the giving of removal directions even if they were not removal directions themselves. Whether that is so or not depends on the width of the phrase "relating to", and whether "removal directions" are actually ultimately envisaged. It is not necessary to reach a conclusion on whether as a matter of form a destination country needs to be stated for an appeal to be brought.

The appealable decision under section 69(1) is the refusal of leave to enter, which does not of itself require a country of removal to be stated or removal directions to be given. The ground of appeal against that decision however is that removal in consequence of that refusal would be a breach of the Geneva Convention. Therefore, the ground of appeal requires not just a refusal of leave to enter but also an examination of the consequential removal, whether or not imminent or even presently envisaged. The Appellant contends in such an appeal, first, that he is a refugee and, second, in consequence, that to remove him would breach Article 33. No country of removal needs to be specified in order to establish whether someone is a refugee. As the country, nationality or habitual residence is critical to the questions of whether someone is a refugee, it is relevant for the refusal of leave to enter to state whether the asserted nationality is accepted. But a country of proposed removal has to be identified in order to test whether the removal of someone who is a refugee would breach Article 33.

Where the disputed nationality claim is resolved in favour of an Appellant, the country of envisaged removal is relevant to the assessment of whether removal would breach Article 33. Where it is rejected, the country of envisaged removal ceases to be relevant. The Notice or letter cannot here be taken the one in isolation from the other. Taken together, they embody a two stage decision: the Appellant's nationality is not X, but if it is, his removal to X will not breach Article 33; if it is not X, he is not a refugee and anyway will not be removed to X, so no breach of Article 33 can arise, on either limb of the ground of appeal. It is not a decision that a non-national of X will be removed there.

For the purpose of section 65(1), it is difficult to see how an appeal could be made against the refusal of leave to enter on human rights grounds, without the threat of removal and, in almost all cases, the threat of removal to an identified country. It would be impossible otherwise to identify the threatened or actual breach of human rights. For the purposes of an appeal under section 65(1), it does not matter whether or not the letter or Notice constitute or evidence removal directions; either way, it is plainly a decision "relating to" the Appellant's right to enter the United Kingdom and generates a right of appeal in relation to human rights; see R (Kariharan, Koneswaran and Kumarakuruparan) v Secretary of State for the Home Department [2002] EWCA Civ 1102, [2003] Imm AR 163. The letter or Notice generates a right of appeal because section 65 encompasses an appeal against the decisions embodied in a letter or Notice such as the one sent here.

The same point as is made in paragraph 25 applies in relation to the human rights appeal.

The purpose of the formulation of the decision embodied in the letter and Notice can be tested by examining what would happen if there were to be no appeal against the decision. It would not be open to the Secretary of State to say that the Appellant was a Somali and to remove him to Somalia; the Secretary of State could only act in accordance with his own decision that the Appellant was not a Somali, that his true nationality would be investigated and that he would not be removed to Somalia but to some other, as yet unknown, country. The Secretary of State needs to assert that the Appellant is not Somali, but not knowing what he is, is entitled to threaten his removal there, because the Appellant can thereby challenge that rejection of his nationality and its consequences. It is difficult to see that this could be done effectively without any removal being proposed.

The second issue is whether, even if the letter or Notice had constituted removal directions an appeal would have been possible against them as such? The answer to that is "no".

Section 69(5) specifically provides for a right of appeal in asylum cases against removal directions in certain circumstances. There is no reason why Parliament should have enacted section 69(5) if there was an adequate right of appeal for all against such directions already inherent in section 69(1). We do not accept Mr Gill's submission that section 69(5) was simply a carry over from previous legislation, and that that explains why a separate appeal provision in relation to removal directions was provided for illegal entrants. It is clear from Zecaj that the right of appeal under subsection (5) is limited to the ground specified in section 66(1), and that the section 66 appeal itself is limited. The effect of Zecaj is that the ground of an appeal must be that the subsection (1) ground did not apply to the Appellant on the facts as a matter of law. It would be necessary for the directions to have been given on the ground that the Appellant was an illegal entrant, or an overstayer, or had obtained leave to remain by deception, was a member of a family of which one had received removal directions, or was a crew member. None of these were relied on by the Secretary of State. So no appeal lay under section 66. It would be bizarre if the restrictions in sections 69(5) and 66 could be sidestepped by an appeal under section 69(1). The language of section 69(1) also refers to "ground" in the singular; it does not import a further ground relating to removal directions.

It is also worth noting that there are other specific appeal provisions relating to removal directions in both sections 59 and 67 but they both require the Appellant to specify another country to which he is to be sent, and so do not assist the Appellant here. Rather they confirm that the right of appeal against removal directions is not to be implied but is expressly conferred where applicable. If it requires a specific statutory provision in section 69(5) to provide for an appeal against removal directions as such, and other specific provisions exist as well, it is very difficult to see why section 65(1) in turn should be construed as containing implicitly such a right of appeal. So there are no specific statutory removal direction appeal rights available in this instance even were either the letter or Notice to constitute or evidence such directions. This case does not concern an illegal entrant; the Appellant made his claim while still in the port area and as soon as possible.

The Notice is inaccurate in referring to an appeal on the ground that "removal in pursuance of these directions" would breach the Geneva Convention. The statutory provision to which it relates refers rather to removal in consequence of the decision to refuse leave to enter; it does not refer to removal directions at all, and the provision which does is not referred to as the ground of appeal. Nonetheless we do not consider that that can be seen as altering the true scope of section 69(1).

The appeals could not directly challenge the lawfulness of removal directions by reference to paragraph 8 of Schedule 2 to the 1971 Act language of paragraph 21(1) and (2) of Schedule 4 to the 1999 Act, which refers to decisions not made "in accordance with the law". This is because paragraph 21(1) is subject by 21(2) "to any restriction on the grounds of appeal". It is clear that there is a restriction in both section 65(1) and section 69(1) appeals. The former, by reference to subsection (5), is limited to human rights and racial discrimination; it contains no other ground of appeal. Section 69(1) by its terms is limited to a single ground and contrasts with 69(5) which alone, as we have said, extends to the specific content of removal directions.

The third issue, and it is the important point, is as to the relevance to the two appeals of the country specified in the Notice. That issue is not answered by merely deciding that there is no relevant appeal against the so-called removal directions. It is necessary to deal separately with the two Conventions. We take the Geneva Convention first.

Any claim that the refusal of leave to enter and the consequential removal infringes that Convention relies on the combination of the definition of "refugee" in Article 1 and the non-refoulement obligation in Article 33, which applies to refugees. The burden is on the claimant for asylum to establish that he is a refugee. He has to establish that he is outside the country of his nationality or former habitual residence; that may be clear enough without that country being identifiable. But he then has to establish that he is unable, or through fear unwilling, to avail himself of the protection of the country of his nationality or of former habitual residence. Unless he can establish, to whatever is the appropriate standard of proof, what is his country of nationality or former habitual residence, he can never satisfy that requirement. He cannot be someone to whom the obligations in Article 33 then apply, for he is not a refugee. An individual does not become a refugee simply because he is threatened with removal from the country where he has sought protection to a country where he has a well-founded fear of persecution, however improbable such a threat or its achievement. He failed to show that the refusal of leave to enter was unlawful; the second limb of the ground of appeal (removal) does not arise.

Mr Gill suggested that the Tribunal should consider whether as a non-Somali, the Appellant would be persecuted in Somalia. We decline to consider that: the Appellant does not come within the definition of a refugee. Also, it would be impossible for the basis of a fear of persecution to be established credibly. And it would be an abuse of process for him to say that his claim should be dealt with on any basis other than that which he put forward. He cannot have it every which way. After all, he denies that he is a non-Somali. Finally, as we have said, if the Appellant is not a Somali, and he has been found not to be, the Secretary of State has said that he does not propose to remove him there but instead intends to investigate his true nationality. So there is no basis, on that factual basis, for concluding that there would be a breach of Article 33.

If, as an alternative, an Appellant sought to establish that he would be persecuted for a Convention reason in every country of possible nationality (and there is no reason why he should be able to delimit the Secretary of State's possibilities in that respect), he would still not come within the definition of a refugee. The attempt would also be impracticable because of the array of deceit which he would have to put forward. It would also be an abuse of the appeal process to assert as true a sequence of inconsistent stories, having been disbelieved on his first claim.

It follows that the Appellant cannot make out his claim to refugee status at all; the reference in the Notice to the country of proposed removal, even if it were actually proposed to remove him there on the basis of the Adjudicator's findings (which it is not), cannot make him a refugee. It is irrelevant to examine what might happen to him there for the purposes of the Geneva Convention.

Paragraph 10 of Schedule 4 also has the effect that if the Notice constituted removal directions or "directions … given by virtue of the refusal [of leave to enter] for his removal" it ceases to have effect because of the asylum appeal. There is no provision that dismissal of the appeal revives any such direction. Paragraph 10 does not appear to be merely a suspensory provision: rather it expunges any such direction. Although the effect of a section 65 appeal is simply to suspend such directions, the effect of an asylum appeal is to remove their effect permanently. They do not have two separate lives, ended permanently by an asylum appeal but merely suspended by a human rights appeal, capable of being acted upon if that appeal is dismissed.

For the purposes of the EHCR, the issue is whether the removal as proposed to Somalia involves a breach of the claimant's human rights. The problem faced by the Appellant is as to the basis of his claim that he would be subject to treatment in breach of Article 3. He cannot say that he would be ill-treated as a Somalian, because he is not of Somali nationality. He cannot be heard to say in this appeal that he would be ill-treated as a non- Somali, because that would be an abuse of process: he cannot in the same appeal maintain two wholly inconsistent stances. He cannot give evidence in support of his appeal on the basis that, if he is disbelieved as to his nationality and that basis for his claim goes, he has another story and can claim to be entitled to assert a case which he has previously denied. In reality, the lies told by the Appellant also make it impossible for any assessment of his human rights position to be carried out. Even if it were possible, in theory, for someone to show that he would be ill-treated, whatever his country of origin, were he to be sent, say, to Somalia, it would be something of an exceptional case and would involve giving credence to someone found lacking in credibility on a fundamental issue. It is not obvious why such a person should be believed. But the appeal system should not permit itself to be abused, against such a theoretical case.

Finally, in a human rights appeal, it is necessary for removal to be a reasonably imminent practical threat for a breach to arise. Once the Adjudicator has determined that the Appellant is not Somali, such removal ceases to be a practical threat in the light of the Secretary of State's promise in his letter not to remove him to Somalia but to investigate further his true nationality. It follows that he does not in practical terms face treatment in breach of Article 3 through being sent to Somalia, because he will not be sent there.

Even in an Article 8 claim based on family life, the country to which return is proposed and the relationship of the Appellant to that country will usually be important in the assessment of whether there are difficulties in the way of his family going there. Deceitfulness as to the basis of claim will be fatal there as well.

This approach to false nationality claims in asylum and human rights appeals is in line with what the Tribunal has decided in other cases. In Khan [2002] UKIAT 04412*, the Tribunal considered removal directions for Afghanistan in relation to a claimant who was not believed to be from there. It held first that the Adjudicator was not obliged to make a positive finding of nationality; he only had to decide whether the evidence established the claimed nationality. The asylum claim failed; the Claimant contested the validity of the removal directions on the basis that it had not been believed in the asylum claim that the Claimant was from Afghanistan. He had an appeal under both section 69(5) and section 66 as an illegal entrant. The section 66 appeal was rejected, depending as it did on the Claimant asserting that he was not from Afghanistan. The Tribunal said in paragraph 14:

"We firmly take the view that an Appellant cannot be heard to claim, for the purposes of his asylum appeal, that he comes from a particular country and, in the same proceedings, for the purposes of s 66, that he does not come from that country. That should be sufficient to deal with any cases in which, in the same appeal, an Appellant claims that he is from a particular country but, if the Adjudicator does not believe that, then he claims for the purposes of an appeal under s 66 that he is not from that country. To do so is simply an abuse and we will not tolerate it. It follows that an appeal under s 66, based on the falseness of the information given for the purposes of any other grounds of appeal in the same appeal, will not succeed."

In Hamza [2002] UKIAT 05185*, the Tribunal considered the position of a Claimant who falsely claimed to be from Somalia; the Adjudicator found on the material which he had that she was from Kenya. All that was actually necessary for the Adjudicator to decide was that she was not from Somalia. Removal directions were set for Somalia. The possibility of a challenge to removal directions under section 66 was raised. The Tribunal endorsed and applied Khan. Collins J said at paragraphs 8 and 9:

"Now that enables a person, in respect of whom appealable removal directions have been given, to say not only that he is a refugee but also that there was no power to give the directions on the facts of his case. What he is not entitled to do is to blow hot and cold and say "On the facts of my case, I am a national of country A and I cannot be returned to country A because it would be contrary either to the Refugee Convention (s 69(5)) or the Human Rights Convention (s 65). But, if you, the Adjudicator, decide that I am not a national of country A, then the removal directions cannot stand because, on the facts that you have then found, there would be in law no power to give them on the ground on which they were given."

"In our view, because, like Mr Varcoe, we do not believe that Parliament could have intended an individual to rely on his own fraud to obtain an advantage, s 66(2) must be construed to mean that the facts of his case mean the facts asserted by the Appellant in support of his appeal. That is to say that the Appellant is entitled to appeal under s 66(2) if, and only if, he asserts facts which mean that there was in law no power to give the directions on the ground on which they were given. If he fails to establish those facts, he claim will fail."

The same approach was adopted in Jafar [2002] UKIAT 05184. The thinking is also consistent with R (Tu) v Secretary of State for the Home Department [2002] EWHC Admin 2678, [2003] Imm AR 288.

Although the Tribunal in Khan and Hamza referred to Zecaj, and distinguished that Tribunal's decision, before its reversal by the Court of Appeal, that reversal does not affect the conclusions on this issue to which it came. (It distinguished Zecaj as relating to an administrative error.) We see nothing in the Court of Appeal in Zecaj which casts doubt on the broader point recorded in the SSHD's submissions to it. We can see no reason to adopt a different approach, where there are either no removal directions or where no appeal lies against them, from that adopted when removal directions have been issued for the country of the falsely asserted nationality. The reasoning which would have applied to limit the section 66 appeal, had it existed, would also apply to limit the grounds of appeal available under section 69(1) and 65(1). If the Appellant were right in his submissions as to the availability of an appeal against removal directions, he would lose nonetheless.

The Secretary of State is, it is true, seemingly facing two ways in asserting that someone is not a national of the country to which he apparently proposes to return him, or in respect of which he might have actually issued removal directions, whilst knowing that he is contending that they do not satisfy paragraph 8 of Schedule 2 to the 1971 Act. The reality is that the Secretary of State is not facing two ways. As we have explained, the letter and Notice have to be taken together as a two-stage decision, with the removal proposed to Somalia being contingent upon the Appellant succeeding in his nationality assertion but failing in relation to persecution on Article 3 treatment. This is a real problem which arises more and more frequently over false nationality claims eg Somali, Afghan or Sri Lankan.

The Secretary of State will usually not be in a position to investigate fully the true nationality so long as the Claimant has a right of appeal in which the Claimant's assertion as to nationality can be resolved. The Secretary of State should not be put in the false position of having the burden of proving nationality in an asylum or human rights appeal – that burden lies on the Claimant. The Secretary of State cannot normally therefore be expected to specify a removal country, whether or not in removal directions, other than the one asserted by the Claimant. This enables the appeal to be mounted and the assertion as to the disputed nationality resolved, even though it will often not resolve what the true nationality actually is.

Any other approach would reverse the burden of proof, imposing on the Secretary of State the burden of proving nationality in respect of a deceitful Claimant and would advantage the deceitful claim as to nationality. Any given individual could assert that he was eg Somali, with varying degrees of improbability, could assert that if disbelieved, he would be ill-treated as a non-Somali and seek to prevent refusal of his asylum claim until the Secretary of State positively established his nationality. The Conventions and sections 69(1) and 65(1) should not be interpreted so as to assist those who abuse protective provisions to impose themselves on the protecting state.

If appeals, in these circumstances, are allowed on the grounds that the removal directions, if they are issued, do not satisfy paragraph 8 of Schedule 2 to the 1971 Act on the Secretary of State's case as upheld by the Adjudicator or Tribunal, there is every advantage accorded to deceit over nationality. The asylum or human rights appeals would have been allowed, on the removal direction ground, because of the Appellant's deceit.

The alternative, which is our view, is that they are dismissed in such circumstances. Yet the Claimant will have had the chance to deal with his or the Secretary of State's disbelief as to his nationality. Any problems thereafter arise from the attempted deceit.

Mr Gill submitted that if these were removal directions, which nonetheless fell outside the scope of section 66 and section 69(5), they could in theory be activated after dismissal of the appeal on whatever basis. He is right that the sole purpose of such directions might not be confined to enabling an appeal to be brought. But his concern about their last minute activation and the difficulty of judicial review at short notice must be tempered in this type of case by a clear understanding of the cause of the problem. It would be the lies of the Claimant and his failure to be truthful as to his nationality after the dismissal of his appeal. Judicial Review would still lie against their activations in the light of the Secretary of State's letter. We see no reason why the process of the law should permit abuse so as to guard against the possibility of the Secretary of State acting unlawfully, and in breach of what he has said in his letter. In any event, paragraph 10 of Schedule 4 removes the effectiveness of such directions in the event of an appeal being made.

Likewise, if after interview, removal directions are set for the country which the Secretary of State concludes is the country of nationality, say Kenya, there may be no appeal against such directions under section 82 of the 2002 Act as now would apply. We say that because there may be no fresh refusal of leave to enter, the Appellant does not come within section 10 of the 1999 Act, and he is not an illegal entrant. Had there been an available appeal, it might or might not have been excluded under section 96.

However, it would still be a judicially reviewable decision. We repeat the comments above about the cause of the problem and the Appellant's responsibility for it. The difficulty of access to last-minute judicial review (if indeed it all had to be last-minute) can readily be overstated; many in the President's experience, have sought it. We do not consider that the point made in Kariharan by Sedley LJ, perfectly understandable in the context of an argument that in effect the removal decision was not appealable, has the same force or effect when the appeal has been heard and dismissed on its merits, because of the Appellant's deceit.

It adds nothing to Mr Gill's argument for it to be said that the Secretary of State exercised his discretion wrongly.

The Interview

Mr Gill finally submitted that the Adjudicator could not lawfully have reached the conclusions which he did as to the nationality of the Appellant. His principal point, upon which he hangs all the other lesser points, was that the Adjudicator ought to have discounted the initial interview conducted by the interviewing officer at Heathrow on 3^rd and 4^th June 2000. The Adjudicator relied on discrepancies between the answers given at that interview and answers given at his later asylum interview as the main basis for the rejection of the claimed nationality.

It was complained that the interviewing officer had acted as the interpreter himself when he should have been independent, that there was a lack of comprehension between the two, that the officer did not know that there were several dialects of Swahili, and had conducted the interview some few hours after the Appellant had arrived tired after a long flight, had been oppressive in his manner and continued the interview the next day after the Appellant had spent an uncomfortable night trying to sleep on chairs at the airport. There were obvious deficiencies in the interview and the answers showed that the Appellant was just tired and fed up and wanted the interview to stop.

The Adjudicator pointed out that the Appellant had described his Swahili as similar to that spoken in Kenya; the interpreter at the appeal before the Adjudicator came from Kenya; Mr Gill said that the interviewing officer was probably East African Asian. The Adjudicator declined to discount the interview. He said:

"Whilst it does appear to me to be advisable for there to be an independent interpreter present at interview I would need the most compelling reasons to be prepared to discount an interview entirely. I note that no formal complaint was made by the Appellant or his representatives concerning the conduct of that interview, the Appellant signed the record and answered the usual questions indicating that he understood the interviewer and was able to proceed. When he stated that he was unwell the first session of the interview was terminated. I appreciate that an interview given at the end of a long flight in strange circumstances and particularly when the interviewee may be uneducated is a gruelling and demanding experience. I bear that in mind in considering the contents of that initial interview but I do not think that it would be proper to discount it altogether. On the whole the Appellant's answers do follow logically from the questions put. Considering that interview I do not regard it as of any particular significance that the Appellant did not know details about such matters as the population and even capital city of Somalia. What I did find very surprising was that he was not able at that initial interview to name his own clan but only to say that he came from Kismayo. It is also surprising that he was not able to give an indication as to when the attack upon his home had occurred. It is even more surprising that the Appellant was not aware of the Somalian currency."

He then contrasted those answers with various other later answers, before reaching his adverse conclusion on nationality.

Mr Gill essentially repeated the points made to the Adjudicator. We have read the notes which are written in English even though the interview was conducted in Swahili. There is nothing in this point. The Adjudicator was entitled to reach the conclusions which he did over the interview and to take it into account in his assessment of the Appellant who gave evidence before him and whose overall veracity he would have been well-placed to assess.

For the reasons which we have given this appeal is dismissed. This determination is starred for what it says about the approach to disputed nationality claims.

MR JUSTICE OUSELEY

PRESIDENT