Kanyenkiko v Secretary of State for the Home Department

LORD JUSTICE PILLLord Justice Laws will give the first judgment.

LORD JUSTICE LAWSThis is an appeal brought with permission granted by Schiemann LJ on 22 November 2002 against a decision of the Immigration Appeal Tribunal ("the IAT") notified on 31 July 2002 to the effect that the appellant's appeal to the IAT fell to be treated as abandoned by force of section 58(9) of the Immigration and Asylum Act 1999 ("the 1999 Act").

In view of the sole point which arises for our determination I may state the facts shortly. The appellant is a Hutu national of Burundi, born on 22 November 1967. She arrived illegally in the United Kingdom on 31 October 1999 and claimed asylum on 2 November 1999. She asserted that she had suffered a number of violent rapes at the hands of Tutsis in Burundi, from which she had fled on 25 October 1999 after five armed Tutsis went to her house. She came to the United Kingdom, leaving her two children in Tanzania.

The Secretary of State did not accept her claimed nationality and refused her asylum claim on 26 March 2001. Removal directions were set in consequence and the appellant appealed against the directions under section 69(5) of the 1999 Act. I will set out the relevant statutory provisions shortly.

By agreement, the adjudicator proceeded to determine the question of the appellant's nationality as a preliminary issue. That was apparently on the basis, somewhat obscurely expressed if I may say so, that if the adjudicator found that she was of Burundian nationality:

An indication was given at the hearing before the adjudicator (see paragraph 5 of the determination) that it was Home Office policy to grant exceptional leave to remain to Burundian asylum seekers. The adjudicator held that the Home Office had not proved on the balance of probabilities that the appellant was not Burundian (see paragraph 24). On the contrary, the appellant for her part had proved that there was a reasonable likelihood that she was a Burundi national (see paragraph 25). Unfortunately, the adjudicator proceeded in the same determination then and there to decide the substantive asylum issue upon which he had heard no submissions. He decided it together with her linked appeal relating to Article 3 of the European Convention on Human Rights against the appellant. That determination was promulgated on 25 January 2002. On 25 March 2002 the IAT notified a determination granting leave to appeal against the adjudicator's decision. However on 22 February 2002 the Secretary of State granted the appellant exceptional leave to remain for four years. The grant of leave is contained in the supplementary bundle which has been put before us today. The hearing before the IAT was listed for 13 May 2002. On 24 April 2002 the appellant put in an application "to vary the grounds of appeal" so as to rely on section 69(3) of the 1999 Act instead of section 69(5). In order to understand why this was done and the IAT's response to the application which has led to the appeal to this court, it is necessary now to set out the relevant statutory provisions:

Some of these rights of appeal are limited in various ways. Thus for example section 60(1) provides that a person is not entitled to appeal, under section 59 on the ground that he has a right of abode in the United Kingdom unless he holds a United Kingdom passport or a certificate of entitlement. Section 62 imposes limitations on the right to appeal conferred by section 61. Section 64 imposes limitations on the section 63 right of appeal so that for example section 64(1) disentitles a person from appealing under section 63 if the ground of the decision to deport him was that his deportation was conducive to the public good as being in the interest of national security. Section 70 sets limits to the rights of appeal under section 69.

So the matter came before the IAT on 13 May 2002. The IAT was faced with the appellant's application to vary the grounds of appeal. It was clearly made to avoid at least the apparent effects of section 58(9). There would of course be nothing to vary if section 58(9) had had effect so that the extant section 69(5) appeal fell to be treated as abandoned upon and by virtue of the grant of exceptional leave to remain for four years on 22 February 2002. The IAT stated, rightly in my judgment (paragraph 7):

The only question on this appeal before us is whether the IAT was right to do so. I must confess to some puzzlement as to the basis on which Mr Scannell has put forward his argument. He accepts, as I understand him, that the appellant's section 69(5) appeal indeed fell to be treated as abandoned by force of section 58(9), at any rate at some stage. He appeared to indicate that his only concern was that procedurally his client should have had a section 69(3) appeal substantively entertained on 13 May 2002. But whatever procedural course might have been taken in the circumstances which eventuated, the only point that arises in this court is whether or not there was anything to vary or amend when this matter went to the IAT on 13 May 2002.

In submitting that there was an issue remaining for the Tribunal despite the apparent bite of section 58(9) Mr Scannell placed some reliance upon the decision of this court in Saad [2002] Imm AR 471, in which the judgment of the court was delivered by the Master of the Rolls. The question in that case was whether section 8 of the Asylum and Immigration Appeals Act 1993 ("the 1993 Act") enabled a person to challenge a decision by the Secretary of State that he was not a refugee even though the person in question had been accorded exceptional leave to remain. This court held that it did. The policy reasons which in the court's view supported that conclusion place heavy emphasis, if I may say so, upon the United Kingdom's international obligations arising under the 1951 Refugee Convention (see paragraph 72 of the judgment). I need not, with deference, narrate any passage from the judgment nor indeed section 8 of the 1993 Act. The 1993 Act was replaced by the 1999 Act; the 1993 Act, however, as I understand it, contained no analogue of section 58(9).

Reliance is also placed in Mr Scannell's skeleton argument on the "starred" decision of the IAT in Abdillahi given on 5 February 2002. In that case the appellant was served with a notice granting him exceptional leave, but the notice did not expressly state that leave to remain as a refugee was refused. The appellant sought to appeal under section 59(3). The adjudicator held that there was nothing to appeal against, for want of a notice indicating that leave as a refugee was refused. However the IAT, encouraged by the decision in Saad "to adopt a purposive approach to the construction of 69(3)", held (paragraph 10) that refusal of refugee status was implicit in the notice, so that the appellant's section 69(3) appeal was live.

There is also the starred IAT decision in Zeqaj (4 February 2002) in which the IAT allowed an appeal notice to be varied so as to rely on section 66(2) instead of section 69(5) of the 1999 Act. However the IAT's decision in that case was overturned in this court ([2002] EWCA Civ 1919). The court accepted Miss Giovannetti's submission for the Crown, recorded at paragraph 8 of Latham LJ's judgment thus:

Mr Scannell relies on these cases in order to support the proposition that it is possible in an appropriate case for an adjudicator or the IAT to allow a notice of appeal to be amended so that a statutory ground within Part 4 of the 1999 Act may be relied on notwithstanding that a different statutory ground was originally put forward. But none of these cases engaged section 58(9). That provision was, however, considered by the IAT in Diriye [2002] UK IAT 04402. There, the appellant had appealed against a removal notice on asylum grounds, so presumably under section 69(5). Exceptional leave was granted. The IAT said this:

As I understood him Mr Scannell submitted that while section 58(9) had effect so that the appellant's section 69(5) appeal fell to be treated as abandoned upon notice being given in February 2002 of exceptional leave to remain, nevertheless it was not in fact treated as abandoned until the IAT took the decision it did. That would seem to my mind to suggest that the extant appeal under section 69(5) is not under section 58(9) actually to be treated as abandoned until and unless that is effected by some executive act, such as for instance by a distinct decision of the IAT. For my part I cannot understand how that should be so. It seems to me that the terms of section 58(9) are entirely unequivocal. Its application is triggered by the fulfilment of two conditions: (1) that the person in question has a pending appeal brought under any provision of Part 4 of the 1999 Act other than section 69(3); (2) that the person is granted, while that appeal is pending, leave to enter or remain in the United Kingdom. If these two conditions are met the pending appeal is then and there treated as abandoned. They are met in this case. In my judgment this section 69(5) appeal fell to be treated as abandoned as from 22 February 2002. There was therefore nothing that could be varied or amended when the matter came before the IAT on 13 May 2002.

I should indicate that in the course of argument the possibility was canvassed by Arden LJ that section 58(9) might only bite if, in addition to there being an extant appeal and the grant of leave to enter or remain, it was also the fact that no decision had been taken which remained effective relating to the appellant's immigration status. With great respect I cannot for my part see that that is right. Once the two conditions specified in section 58(9) are met the extant appeal is treated as abandoned, whatever else might have happened. Moreover there will, as I see it, in every case be a decision affecting the appellant's immigration status, since that will be the genesis of the extant appeal which falls to be treated as abandoned. There was also some discussion in the course of argument as to whether a pre-emptive notice of appeal under section 69(3) might be put in by an appellant before a decision to grant exceptional leave to remain was actually made in his or her case. If that were possible then such an appeal, having by definition been brought under section 69(3), would survive the effect of section 58(9). However it seems to me that that is not a viable possibility under the statutory scheme. Section 69(3) only grants a right of appeal at all to a person who:

I should add some further observations. I am not for my part distinctly holding that there are no circumstances in which an appeal brought under one provision of Part 4 might not for good reason be treated by the adjudicator or IAT as proceeding under some other provision. This court's decision in Zeqaj does not I think go so far, being limited to a consideration of the construction of section 66(2). The question may call to be argued in this court on another day. In the present case, as I have said, there was nothing to amend or vary because the appeal had in effect been abandoned before the application to vary was made.

Mr Scannell referred to the Government White Paper "Fairer, Faster and Firmer - A Modern Approach to Immigration and Asylum", which was published before the 1999 Act was passed. There are a number of references there to the desirability of a single comprehensive or one-stop appeal. The same theme is encountered in the explanatory notes to the 1999 Act and the official report of the special standing committee on the Bill which became the Act. I have considered all these materials. None of them, in my judgment, begins to justify a construction of section 58(9) which, in my view, will be at variance from the sense of its clear words.

We were referred also to some of the provisions contained in the Nationality Immigration and Asylum Act 2002. I find it necessary only to say that it is of some little interest that by section 104(4) of that Act there is re-enacted, though within the framework of a somewhat different scheme, a provision essentially to the same effect as section 58(9).

I cannot see with respect anything inconsistent between the result at which I would arrive in this case and this court's decision in Saad . In fact the court in Saad referred to 69(3) of the 1999 Act, although it was dealing in substance with the Act of 1993 (see page 73 of the judgment).

In the present case, as Miss Giovannetti has expressly acknowledged in her skeleton and as is plainly the case, the appellant has a right of appeal under section 69(3) and that right so far as I am aware is intact. In my judgment there is nothing in the result arrived at by the Tribunal here which is repugnant to this country's obligations under the 1951 Refugee Convention or the statutory scheme contained in Part 4 of the 1999 Act.

For the reasons I have given I would dismiss this appeal.

LADY JUSTICE ARDENI agree, for the reasons given by my Lord Laws LJ. In my judgment the meaning of section 58(9) is plain. It begins with the words:

There was no notice of appeal in this case under section 69(3) at the date of the grant of the exceptional leave to remain. I agree that that is the critical date for the reasons my Lord has given. As the applicant was granted exceptional leave to remain the final conditions of section 58(9) was fulfilled. She was, of course, implicitly refused refugee status at the same time; but I agree with Laws LJ that it is inevitable where an asylum appellant is granted such leave. I do not think that we can read in words such, as in the end of subsection (9), "but not if the applicant is also seeking asylum and exceptional leave to remain is given and she would wish to appeal under section 69(3)."

In those circumstances I do not consider that it is open to a court to look at Hansard or the explanatory notes for the White Paper. Mr Scannell relied on the very general purpose stated in the White Paper of reducing the number of appeals available to any single applicant; but the White Paper simply does not deal with the sophisticated set of facts that have arisen here. Mr Scannell also relies on the fact that the White Paper refers to the intention to provide a single right of appeal in asylum cases. As I see it, that is only intended to be the general aim and it again does not deal with this particular point.

There is reference to the streamlining of appeals. But that is certainly achieved by the automatic abandonment of an appeal as of the grant of exceptional leave to remain, and it is at least arguable that that was the policy applicable on this set of the facts. We cannot say. We can only give effect to the clear wording of 58(9) as we find it to be.

Finally, I canvassed with Mr Scannell the possibility of a precautionary notice of appeal under 69(3) at the same time as the appellant appealed against the refusal of the adjudicator to find that the appellant was a refugee. I did so in order to see whether there was a practical solution to the difficulties in this case; but I am satisfied that as the ground of appeal had not then arisen it would not be a proper appeal on that basis, notwithstanding the definition of pending appeal. That solution also provides the answer to the further point that I put to Mr Scannell, that the Tribunal could have entertained an application to amend the notice of appeal with retrospective effect, ie to a point in time when the notice of appeal was not to be treated as abandoned, just as the court may in civil cases permit amendment to pleadings after judgment has been given. That point has not been fully argued. It seems to me that the same point would arise; namely, that at the date as of which the ground would have to be inserted the ground of appeal would not have arisen.

Accordingly, I too, would dismiss this appeal.

LORD JUSTICE PILL I agree with both judgments.