Emunefe v Secretary of State for the Home Department

LORD JUSTICE PILL: Lord Justice Clarke will give the first judgment.

This is an appeal from a decision of the Immigration Appeal Tribunal ("the IAT") notified to the parties on 14th December 2004 by which it dismissed an appeal by the appellant on the ground that the appeal was "treated as abandoned" by reason of section 58(9) of the Immigration and Asylum Act 1999 ("the 1999 Act").

The appellant is a Nigerian who applied for entry clearance to come to the United Kingdom as a working holidaymaker. That application was made to the Entry Clearance Officer in Lagos, who on 5th December 2002 refused it on what the IAT described as almost all possible grounds. That refusal gave rise to a right of appeal under section 59(2) of the Act and the appellant appealed to an adjudicator, Mr TR Cockrill. The appellant advanced two grounds of appeal, first on the merits and secondly on the basis that the Entry Clearance Officer discriminated against the appellant on the grounds of race, contrary to the Race Relations Act 1976 as extended. The adjudicator allowed the appellant's appeal on the merits and said that in those circumstances it was unnecessary to decide whether there had been any discrimination on the grounds of race. In those circumstances he expressed no view on that question.

The appellant appealed to the IAT under sections 8(4) and 65 of the 1999 Act. He did not of course appeal on the ground on which he had succeeded and which led to his appeal being allowed. However, he appealed on the basis that the adjudicator ought to have considered the appeal on the ground of discrimination and that he ought to have held that the Entry Clearance Officer had unlawfully discriminated against him on racial grounds.

On the face of it this seems somewhat curious, since ordinarily appeals are brought against orders and the appellant's appeal had succeeded. The reason the appellant appealed to the IAT was because he submitted that a finding of racial discrimination was necessary for him to pursue a claim in the county court for damages for racial discrimination.

The procedural position is as follows. The decision appealed against to the adjudicator was made on 5th December 2002. The appeal was brought under the 1999 Act. The effect of (Commencement No 4) order 2003 SI 754, Article 3 and Schedule 2, paragraph 6(4) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") was to continue the rights of appeal under the 1999 Act, notwithstanding its repeal by the 2002 Act.

The relevant statutory provisions are these. Section 65(1) of the 1999 Act enables an appeal to be brought against the decision of an authority, which includes an Entry Clearance Officer, where it is alleged that in taking that immigration decision the authority racially discriminated against the appellant. By section 65(2) racial discrimination is constituted by the acts or omissions which are made unlawful by section 19B of the Race Relations Act 1976 ("the 1976 Act"). Section 65(3) provides:

Section 65(4) and (5) provide:

Thus the adjudicator had jurisdiction under section 65(3) of the 1999 Act to determine the question whether the Entry Clearance Officer racially discriminated against the appellant. As I have indicated, he did not determine that question. He should have done so, even though he was allowing the appellant's appeal on other grounds. At the time the matter was before the adjudicator there was a practice direction in force requiring adjudicators to reach a decision on such a question when it was raised before them. Unfortunately, it appears that the adjudicator was unaware of the practice direction and no one drew it to his attention.

We note in passing that in the 2002 Act section 86(2)(a) provides that in an appeal under section 82:

The reason for those provisions is to be found in sections 19B(1), 57 and 57A of the 1976 Act. Subject to certain exceptions which are not relevant here, section 19B(1), which was inserted by amendment in 2000 with effect from 2nd April 2002, makes it unlawful for a public authority to discriminate racially in carrying out its functions.

Section 57 of the 1976 Act enables proceedings for damages for racial discrimination to be brought in the county court. Section 57A provides, so far as material:

The "relevant decision" is defined in subsection (5)(a) as:

The only court or tribunal before which a claimant can pursue a claim for damages for racial discrimination is the county court. However, no such claim can be brought in a case of this kind where "the question whether the Act was unlawful by virtue of section 19B" has been or could be raised in proceedings on an appeal which is pending or could be brought under the 1999 Act. Thus if the appellant in the instant case wanted to pursue a claim for damages for racial discrimination, he had first to have the question whether the Entry Clearance Officer was guilty of race discrimination determined by the adjudicator. That was no doubt the reason why the appeal to the adjudicator was advanced on that ground, and it was why the practice direction required the adjudicator to determine that question even though he was allowing the appeal on other grounds.

By section 65(3) of the 1999 Act the IAT equally had jurisdiction to determine the same question. Hence the appeal to the IAT on that ground. A Vice-President of the IAT granted permission to appeal to the IAT. However, by the time the matter came before the IAT, in the light of the decision of adjudicator allowing the appellant's appeal, the Secretary of State had granted entry clearance and the appellant had entered the country with leave to do so. This was an important development because section 58(9) of the 1999 Act provides as follows:

In the light of section 58(9) of the 1999 Act, the IAT accepted the Secretary of State's submission that the appeal had been abandoned because of the grant of leave to enter. The IAT held that only one appeal is possible from a decision of the adjudicator, so that the IAT had no alternative but to dismiss the appeal.

The IAT made a number of observations as to the consequences of that conclusion to which I will return in a moment, but its decision was that since the appeal was treated as abandoned by section 58(9), it had no alternative but to dismiss the appeal.

The President of the IAT, Ouseley J, granted permission to appeal, not because he thought that the appeal raised an arguable point of law, but because he took the view that the problems created by cases of this kind provided "some other compelling reason" for granting permission.

Mr Chatwin submits that the IAT was wrong to hold that the appellant's appeal on the discrimination question was treated as abandoned by operation of law under section 58(9) of the 1999 Act. As set out in his written submissions, his argument can be summarised as follows:

In the course of his oral submissions and in the light of a point made by Mr Justice Rimer, Mr Chatwin has submitted that section 58(9) has no application at all to an appeal to the IAT, since such an appeal is not "a pending appeal" within the meaning of subsection (9).

The IAT dealt with the point shortly. Having referred to the provisions of section 55 of the 1999 Act, to which I referred earlier, the IAT said this in paragraphs 9, 10 and 20 of their determination:

Mr Chatwin says in his skeleton argument that that reasoning is wrong. He submits that sections 59(1) and (2) and 65(1) created two distinct rights of appeal. Section 59 provides:

Section 65(1) provides:

Mr Chatwin submits that those are separate rights of appeal which are independent of one another and are treated entirely separately in the Act. There is undoubted force in that submission so far as it goes.

The problem is the language of section 58(8) and (9), which must be put in their context. Section 58 provides, so far as relevant:

I should refer first to the point made in the course of the argument this afternoon that sections 8 and 9 do not include an appeal to the IAT. The submission is that the expression "a pending appeal" refers only to the appeal to the adjudicator and does not include the further appeal to the IAT. That submission is given some force by the distinction drawn in subsection (4), which it will be recalled provides:

It is submitted that that subsection draws a clear distinction between "appeals under this Part" and "further appeals"; the "appeals under this Part" being appeals to the adjudicator and the "further appeals" including appeals to the IAT. Indeed, appeals to the IAT are provided for in Part III of Schedule 4, and in particular paragraph 20, which makes detailed provisions for appeals to the IAT. It is thus submitted that "further appeals" are not "appeals under this Part".

However, to my mind that is too simplistic an approach. Each of these subsections must of course be construed in the context of the section as a whole. Subsections (5), (6) and (7) make it clear, first, that an appeal under this Part is to be treated as pending during the whole period, beginning when the notice of appeal is given and ending when the appeal is finally determined, withdrawn or abandoned and, by subsection (7):

In these circumstances, it seems to me to be plain that where in subsection (8) the Act provides that "a pending appeal under this Part is to be treated as abandoned if the appellant leaves the United Kingdom", the appeal is pending and is thus a pending appeal throughout the whole appeal process. The same, as I see it, is true of subsection (9).

It is submitted that it is wrong to construe the expression "a pending appeal under this Part" as including the further appeal, because the further appeal is not an appeal under this Part, but is provided for by Schedule 4. For my part, I am unable to accept that submission. Schedule 4 is enacted by section 58(2), (3) and (4), so that, as I see it, Schedule 4 is in a real sense part of Part IV, and any appeal provided for in Schedule 4 is thus an appeal under Part IV. I would therefore hold that the expression "a pending appeal under any provision of this Part" in subsection (9) includes the part of the appeal process which includes the appeal to the IAT.

Thus, the position is that sections 58, 59 and 65 are all in Part IV. Take subsection (8). The appellant's discrimination appeal under section 65(1) is "a pending appeal under this Part" within the clear meaning of that subsection. It follows that if the appellant left the United Kingdom while it was pending, his appeal would be treated as abandoned. The same is as I see it true of subsection (9). An appeal under section 65(1) is plainly an appeal "under any provision of this Part other than section 69(3)". The same of course applies to an appeal under section 59. It is therefore clear that whether there is in a case of this kind one appeal or two appeals, the appeal or appeals is or are "treated as abandoned" under section 58(8) if the appellant leaves the United Kingdom, and under section 58(9) if the appellant is granted leave to enter or remain in the United Kingdom.

It follows that by any ordinary process of construction of section 58(9), the IAT was correct to hold that the appellant's discrimination appeal was treated as abandoned when he was granted leave to enter the United Kingdom.

I should perhaps refer to section 104(4) of the 2002 Act, which has now superseded the provisions of the 1999 Act. Although it is not directly relevant to this appeal, I refer to it partly because the IAT referred to it and partly because it was the section considered by Hughes J in a recent decision of the Administrative Court, namely R (Bibi) v Immigration Appeal Tribunal [2005] EWHC 386 (Admin), to which I must refer in a moment.

Under the 2002 Act a merits appeal and a discrimination appeal are both appeals under section 82(1) of the 2002 Act and, whether treated as one or two appeals, by section 104(4) are expressly "treated as abandoned" if the appellant is inter alia granted leave to enter the United Kingdom.

I cannot see any basis on which the appellant can succeed under this head, if he cannot succeed under the first head.

I have set out these conclusions in some detail because they arise out of the written submissions which we received, but it is right to say that in the course of his oral submissions, with the exception of the submission that if any appeal does not include an appeal to the IAT, Mr Chatwin has not felt able to support them in oral argument.

Before considering the possible impact of the 1998 Act, I should consider whether the appellant has been disadvantaged by the failure of the adjudicator to entertain the discrimination question or appeal.

It seems that the reasons why Ouseley J granted permission to appeal to this court were the problems created or potentially created by the conclusion that the discrimination appeal or ground of appeal cannot survive the deemed abandonment of the appeal. The IAT expressed their concerns in this way in paragraphs 21, 22 and 23 of their determination:

That reasoning has since been considered by Hughes J in the case of Bibi. In that case the adjudicator, as here, allowed an appellant's appeal on the merits, but did not determine the discrimination issue. Leave to enter was then granted and the IAT then took the view that the appeal must be treated as abandoned by reason of section 104(4) of the 2002 Act. It published a notice to that effect on 15th July 2004. The claimant applied for judicial review of that notice. She was represented (like the appellant here) by Mr Chatwin, who submitted to Hughes J that section 104(4) should be read as having no application when, notwithstanding the grant of leave to enter, an appeal on a discrimination point remained undecided.

Hughes J held that by reason of section 86(2) of the 2002 Act, the adjudicator was wrong in law not to determine the discrimination issue. The critical part of Hughes J's judgment for present purposes is his analysis of section 57A of the 1976 Act, which I have already set out. It was submitted to him that the effect of section 57A(1) was to oust the jurisdiction of the county court where the discrimination complained of occurred in the course of taking an immigration decision, and the discrimination issue had been, or could be, raised on an immigration appeal. Thus, it was submitted that the claimant was unable to go to the county court because the discrimination issue had been raised in the immigration appeal and that section 57A(1) ousted the county court's jurisdiction in consequence.

Hughes J rejected that submission. He focused on the express terms of section 57A(1) as follows:

Hughes J said that Mr Chatwin's submission did not have sufficient regard to the words "which is pending or could be brought". I can do no better than quote paragraphs 15 to 18 of Hughes J's judgment, which set out the reasons why he concluded that the claimant had lost her right to have her discrimination claim adjudicated upon. Hughes J said this:

I should quote section 68(2) and (2A) of the 1976 Act, because they played a significant part in Hughes J's reasoning. They provide:

Further, section 68(6) provides:

We asked Mr Chatwin whether he was submitting that the reasoning of Hughes J was wrong. He said that he was not. In all the circumstances, we see no reason to disagree with it. The same reasoning applies to the instant case. Thus there is no statutory provision which prevented the appellant from bringing his discrimination claim in the county court under section 57 of the 1976 Act, provided he did so in time, which, as I understand section 68(2A) of the 1976 Act was six months from the time that his appeal was treated as abandoned under section 58(9) of the 1999 Act. That is subject to the possible effect of section 68(6), which gives the county court a discretionary power to extend time in certain circumstances. It follows that, if section 58(9) of the 1999 Act is construed as I indicated earlier, it did not deprive the appellant of his right to have his discrimination claim adjudicated upon. He could have brought it in the county court, which would have had jurisdiction to determine it, both as to liability and as to quantum.

In these circumstances, the construction put on section 58(9) by the IAT, with which for the reasons given earlier I agree, does not in any way affect or infringe the appellant's human rights.

I should add in this regard that Hughes J recognised that his reasoning was in some respects inconsistent with some at least of the views expressed in paragraphs 21 to 23 of the IAT's determination which I quoted earlier. In this regard, Hughes J said in paragraph 23 of his judgment that it did not appear that the attention of the IAT had been drawn to the phrase "which is pending or could be brought" in section 57A(1) or to section 68(2A) of the 1976 Act. He said that on the fuller argument addressed to him, it seemed to him that a favourable finding in the immigration proceedings is not a necessary precondition to a claim in the county court for discrimination. I agree.

Hughes J further said this in paragraphs 24 to 26 of his judgment:

I agree with those conclusions, which appear to me to apply equally under the 1999 Act.

It follows that I would dismiss the appeal. I would however add this. As both the IAT and Hughes J observed, there is one situation in which an appellant might be prejudiced. It is where the adjudicator decides a discrimination question against the appellant, and his subsequent appeal is treated as abandoned by a subsequent grant of leave to enter. Mr Chatwin submits that section 58(9) must be construed or read down under section 3 of the 1998 Act so as to avoid any discrimination or disadvantage to the appellant in such a case. He then seeks to take advantage of section 58(9) so construed or read down for the benefit of the appellant in the instant case.

However, I would not accept that approach. First, it appears to me that it is very difficult if not impossible to construe section 58(9) to cater for that case. Mr Chatwin was unable to suggest any form of words which might assist any proposed reading down. I am not surprised, because it appears to me that the subsection is quite clear.

Secondly, if section 58(9) were to be construed or read down for the benefit of such a person, it would not be construed or read down for the benefit of a person in the position of the appellant, whose human rights have not in any way been infringed.

Thirdly, it appears to me that the court should only finally determine this question of construction in a case where it truly arises.

Finally, it appears to me that this court can certainly not entertain an application for a declaration of incompatibility in this case, since there is no sensible basis upon which it would be appropriate to grant a declaration on the application of a person whose rights are not infringed or even potentially infringed.

I should add this by way of postscript. The problem that has arisen in this case has now arisen in several cases, so it is to be hoped that those who are engaged on both sides in appeals to adjudicators or to the tribunal (and the tribunals themselves) are now fully aware of the difficulty that has arisen.

Our attention has been drawn to clause 7 of the Immigration, Asylum and Nationality Bill, which has been published and which contains an additional proposed subsection to add to section 104(4) of the 2002 Act, which provides:

The purpose of that clause is to solve the problem for the future under the 2002 Act. So I naturally hope that the kind of case in which a problem might have arisen will only arise very rarely indeed in the future under the 1999 Act.

However that may be, for the reasons I have given, I would dismiss the appeal.

MR JUSTICE RIMER: I agree. I too would dismiss the appeal. There is only one issue on which I would wish to add anything. During the course of argument I became concerned as to whether it might be that the better construction of section 58 of the Immigration and Asylum Act 1999 is that the only "pending appeal" to which section 58(9) refers is one to the adjudicator, on the grounds that it is only such an appeal that is brought under Part IV of the 1999 Act. Any further appeal to the IAT is brought under Part III of Schedule 4 to that Act, albeit that it is section 58(4), itself of course in Part IV, that provides the statutory source for the relevant appellate machinery provided by Schedule 4. If that interpretation of section 58(9) were correct, then it would follow that, on the appellant being given leave to enter the United Kingdom, the still "pending appeal" to the adjudicator (see section 58(6) and (7)) would be treated as abandoned, yet the further appeal to the IAT would not. The IAT would remain seised of the appeal to it, even though the original appeal to the adjudicator giving rise to the decision whose correctness was the subject of the further appeal to the IAT would have been treated as abandoned. That would, I consider, be an odd and improbable consequence. For the reasons given by my Lord, Lord Justice Clarke, I agree with him that the better interpretation of section 58 as a whole -- and section 58(9) in particular -- is that the reference to a "pending appeal" in section 58(9) is to a pending appeal both to the adjudicator and to the IAT.

LORD JUSTICE PILL: I also agree that the appeal should be dismissed. I agree for the reasons given by Lord Justice Clarke. I express specific agreement with his remarks on the construction of section 58(9) in the light of section 3(1) of the Human Rights Act 1998.