KF (Removal directions and statelessness) Iran  UKIAT 00109
Date of hearing: 19 November 2004 and 1st March 2005
Date Determination notified: 07 June 2005
|Secretary of State for the Home Department
"There are also telephone attendance notes by his solicitors but it is regretful that the person who made the calls did not see fit to put in an affidavit regarding the calls made to the UNHCR and the Iranian Embassy."
"Nevertheless the CIPU Report at paragraphs 5.7 confirms 'citizenship is based upon the Iranian Civil Code which stipulates that in general birth within the territory of Iran does not automatically confer citizenship. Some instances where birth does confer citizenship are when a child is born to unknown parents, children born to non-citizens, one of whom was born within Iran or a child born to non-citizens, if after reaching the age 18 the child continues to live within Iran for at least one year …'. At paragraph 5.9 of the report confirms 'Iranian citizenship may be acquired upon fulfilment of the following conditions: the person must be at least 18 years of age, have resided in Iran for five years, not be a military service escapee and not have been convicted of a major crime in any country …'."
"I accept in line with Revenko that even if he were to lodge a proper citizenship application, he is unlikely to be considered for Iranian citizenship due to his lack of appropriate residence in Iran. It is therefore probable that Iran is unlikely to accept the appellant upon return."
"15. I therefore accept that the Removal Notice dated 5 November 2003 is invalid because it is not in accordance with the law.
16. For the purposes of clarity, I also accept according to Revenko that the appellant's statelessness in no way qualifies him to be a refugee under the Geneva Convention. I therefore allow the appellant's appeal for the sole reason that the Removal Notice of 5 November 2003 is invalid."
Conclusions on statelessness
Removal Directions and the country of proposed removal
"(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."
"The provisions of Schedule 2 to this Act shall have effect with respect to-
(c ) the exercise by immigration officers of their powers in relation to entry into the United Kingdom, and the removal from the United Kingdom of persons refused leave to enter or entering or remaining unlawfully;"
Section 5 deals with deportation orders and subsection (5) deals with removals of those against whom deportation orders are in force, by reference to Schedule 3, which permits removal directions to countries within paragraph 8(1)(c) (i) and (iv) of Schedule 2. Mr Patel for the SSHD at the resumed hearing said that removal directions were the invariable accompaniment to removals.
"a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c.77) (control of entry)."
"(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c.42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;
(e) that the decision is otherwise not in accordance with the law;
(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights."
"4 – (1) Subject to regulation 6, the decision-maker must give written notice to a person of any immigration decision or EEA decision taken in respect of him which is appealable."
Regulation 5(1) provides:
"5 – (1) A notice given under regulation 4(1) is to –
(a) include or be accompanied by a statement of the reasons for the decision to which it relates; and
(b) if it relates to an immigration decision specified in section 82(2)(a), (g), (h), (i) or (j) of the 2002 Act, state the country or territory to which it is proposed to remove the person."
The immigration decisions for which the Regulations require a country of proposed removal to be specified are the three which involve removal by way of directions (unlawful presence (g), illegal entrant (h) and family (i)), plus refusal of leave to enter (a) and a decision to make a deportation order (j).
The reason for the distinction between the various subsections appears to relate to the general absence of an in-country right of appeal except under section 82(2)(c), (d), (e), (f) and (j); section 92(2). But this is subject to a general exception where an asylum or human rights claim is raised in the UK; section 92(4)(a).
(a) If it is concluded on the facts that the proposed country of removal falls outside the scope of paragraph 8 of Schedule 2 to the 1971 Act, is that fact irrelevant to the appeal?
(b) If it is relevant, should the result be dismissal of an appeal because there would be no removal, or allowing of the appeal if either Convention would be breached on removal to that country?
(c) Under what circumstances should an Adjudicator or the IAT examine any other country which fell within the scope of Schedule 2, although not currently proposed as a country of removal?
(d) Should a Claimant seek to deal with all countries which fell within paragraph 8 of Schedule 2?
(e) If the Claimant here was stateless, did Iran become irrelevant and did Iraq which was not the country of proposed removal become relevant?
(f) If the Claimant were not stateless, might both Iran and Iraq be considered?
"30. 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 for 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 section 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.
"32. 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)."
(1) "immigration decisions" as defined had to be lawful, and their lawfulness could be appealed pursuant to section 84(1)(e), that it was not in accordance with the law, quite apart from breaches of the two Conventions or of the Immigration Rules. A decision to remove someone to a country to which removal was not lawful because it fell outside paragraph 8 of Schedule 2 to the 1971 Act could be appealed against on that ground. Parliament could not have intended that say, a Russian could be removed to Nigeria regardless of paragraph 8. The fact that Iran fell outside Schedule 2 strengthened the claim that he could not be removed there.
(2) If removal to any country which fell within Schedule 2 paragraph 8 would involve a breach of the Conventions, the appeal should be allowed.
(3) In general agreement with Mr Patel, an Adjudicator should examine countries other than the one in the Notice of Decision, where nationality was disputed, or there were "genuine difficulties in ascertaining the correct country of removal". The Secretary of State ought to specify proposed countries of removal in the alternative, which would be procedurally fair.
(4) Consequently, an Appellant should deal with all Schedule 2 paragraph 8 countries, though it would be more efficient and fairer if the Secretary of State identified those which were candidates for consideration. He also said in answer to the Tribunal that the country of proposed removal was an integral part of the decision and that without it, there was no decision. The decision could be amended to add another country.
(5) Therefore, if the Claimant were stateless, Iran became irrelevant though specified and Iraq fell to be considered even though it was not specified.
(6) Both Iran and Iraq might be considered, subject to the Claimant being put on notice if he were not stateless.
(7) The Adjudicator, having concluded that the Claimant was stateless, ought to have considered whether he was nonetheless a refugee by reference to Iraq and ought to have concluded that he was a refugee because that country was no longer his country of former habitual residence because it was no longer willing to admit him, and provide protection. He sought permission to serve a Respondent's Notice in support.
Conclusions on removal directions and the country of proposed removal
MR JUSTICE OUSELEY