JM v Secretary of State for the Home Department

LORD JUSTICE LAWS: These proceedings have taken a somewhat tortuous procedural course. They concern a starred decision of the Asylum and Immigration Tribunal (“AIT”), promulgated on 26 January 2006, though the hearing had taken place on 16 August 2005. The case was before the AIT by way of a reconsideration, pursuant to transitional statutory provisions following the grant to the appellant of permission to appeal against an earlier determination of the adjudicator made on 21 May 2004. The adjudicator had dismissed the appellant’s appeal against the Secretary of State’s refusal on 9 February 2004 to vary his leave to enter the United Kingdom.

The unusual underlying facts are very crisply summarised in the skeleton argument prepared by Mr Raza Husain for the appellant as follows:

“2.

The appellant is a Liberian national who, until he left the country, was an Associate Justice and the second most senior judge of the Liberian Supreme Court. In May 2003 he gave judgment in a constitutional motion concerning election law and senatorial tenure. His judgment was against the interests of powerful senators and leading parties of President Charles Taylor’s National Patriotic Party (“NPP”). The appellant received death threats and intelligence reports confirmed that his life was indeed at risk. All the judges who sat on the case left the country. The Chief Justice fled to Ghana. The appellant left Liberia, staying with the Chief Justice for five days and claimed protection in the United Kingdom. The Secretary of State rejected his claim on the basis that circumstances had changed and risks had dissipated. The adjudicator dismissed the appellant’s appeal, and the AIT upheld the adjudicator’s determination.”

I should add that the appellant had arrived in the United Kingdom on 3 July 2003 when he was granted six months leave to enter as a visitor. His daughter is here and had invited him to come to the United Kingdom in April 2003 before the judgment in the constitutional case was given. Charles Taylor stood down from office in Liberia on 11 August 2003 and, on 29 August 2003, the appellant applied to the Secretary of State for protection under the Refugee Convention and the European Convention on Human Rights (the ECHR), contending among other things that, although Charles Taylor was in exile in Nigeria, the petitioning senators in the constitutional motion in which the judgment had been given were still in Liberia. Before the adjudicator, the appellant’s appeal was supported by a letter from the United Nations High Commissioner for Refugees dated 8 April 2004. In addition to his case for asylum under the Refugee Convention, the appellant asserted before the adjudicator that his rights under ECHR article 8 were engaged because of his attachment to his grandchild and his daughter, the child’s mother, in this country.

However, the merits of the article 8 case were canvassed, it seems, without prejudice to a submission made on the appellant’s behalf on what, in the grounds of appeal to the Immigration Appeal Tribunal, was described as a preliminary issue. The contention was that since no removal directions had been set, the appellant was in no danger of imminent removal; the appeal was only against the Secretary of State’s refusal to vary the appellant’s leave, which of itself did not entail any removal. Accordingly, it was said the appellant did not then face any violation of his Convention rights and therefore the ECHR claim could not and should not be determined. It was being marked up to protect the appellant’s interests for the future. The adjudicator apparently rejected this preliminary submission but gave no reason in his substantive determination for having done so. He dismissed the ECHR claim on its merits, stating at paragraph 40:

“To the extent that there would be an interference [I interpolate, that is with the appellant’s family life] I am satisfied that it would be proportionate.”

As for the asylum claim, the adjudicator held that the appellant could return to Monrovia, where he would be safe (see also paragraph 40).

On 29 September 2004 the Immigration Appeal Tribunal granted permission to appeal to itself on two grounds: one, the adjudicator’s “failure to deal” with the submission that the ECHR claim could not, in the events which had happened, be determined, and two, a submission that the appellant’s daughter’s evidence had not been taken into account by the adjudicator on Article 8. She had given oral evidence before him, but the adjudicator did not record or refer to the fact in his determination.

On 1 July 2005 the appellant’s representatives sought to amend his grounds for reconsideration (as his appeal had now become: see AITCA (Commencement no.5 and Transitional Provisions) of Order 2005, paragraph 5(i)(b) and 5(ii)). It was desired to contend by amendment, among other things, that the adjudicator had failed to consider risks arising from the conduct of non-state actors, that he had misunderstood the appellant’s evidence about whether he would be safe in Monrovia, and that he had misdirected himself on the issue of what was referred to as “executive capture of the judiciary”. In its determination of 26 January 2006 the AIT held that it had no power to permit amendment of the grounds. That was by force of rule 62(7) of the Asylum and Immigration (procedure) Rules 2005 which provides:

“Where -

“a)

a party has been granted permission to appeal to the Immigration Appeal Tribunal against an adjudicator’s determination before 4^th April 2005, but the appeal has not been determined by that date; and

“b)

by virtue of a transitional provisions order the grant for permission to appeal is treated as an order for the Tribunal to reconsider the adjudicator’s determination,

“the reconsideration [should] be limited to the grounds upon which the Immigration Appeal Tribunal granted permission to appeal.”

4 April 2005 was the date when the material transitional provisions took effect.

On 19 April 2006 the AIT in the person of the deputy president, Mr Ockelton, granted permission to appeal to this court against the ruling as to the effect of rule 62(7). This, however, is not the issue which falls for our determination today. Following certain earlier directions, I directed on 15 June 2006 that the rule 62(7) appeal should await judgment in two other linked appeals by name Ali and Mucaj, in which the same issues relating to the rule had been raised.

We are concerned with the first ground on which permission to appeal to the Immigration Appeal Tribunal had been granted, that is the question whether the ECHR claim could lawfully be determined by the adjudicator in the absence of an imminent threat of removal from the United Kingdom. On this issue, the appellant’s stance before the AIT was radically different from that taken in his submission to the adjudicator and in the ground of appeal which he had obtained permission to argue, as the AIT noted at paragraph 29 of the determination of 26 January 2006. They said:

“What he now seeks to argue is the reverse of what was argued in the grounds: He seeks to establish that in an appeal against a decision which does not give the Secretary of State any entitlement to remove an individual without making a further appealable decision, an appellant has a right to raise human rights grounds as though the second decision had already been made.”

However the AIT continued at paragraph 30:

“For the reasons we have given at some length earlier in this determination, it is not open to the Appellant to change his ground of challenge in that way. [I interpolate, that of course is a reference to their ruling on the rule 62(7) point.] We consider the issue on the basis on which it was put in the grounds.”

The AIT concluded, in the event, that a human rights claim was not justiciable on a variation of leave appeal because in such a case the appellant’s removal was not imminent, and the case was not within section 84(1)(g) of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”) which conferred the relevant jurisdiction on the AIT and to which I shall turn shortly. On this issue, which may be called the human rights issue, Mr Ockelton refused permission to appeal to this court on 19 April 2006.

In his grounds placed before the AIT, which Mr Ockelton was considering, and his grounds placed before this court, the appellant seeks to make good the position he sought to take before the AIT, namely that a human rights claim is justiciable before the AIT notwithstanding that the executive decision under appeal is not a decision to remove the appellant from the United Kingdom and does not necessarily entail any such decision.

For his part, the Secretary of State seeks to support the appellant’s position on this issue; indeed he sought leave to cross-appeal in relation to it. I granted permission to the Secretary of State to cross-appeal on the human rights issue on 8 June 2006. However, because he and the appellant were, so to speak, singing in unison on the point, it appeared that there would be no argument to support the decision of the AIT. Accordingly, by the same order I directed that the Attorney General be invited to appoint counsel as friend of the court to support the position taken by the AIT. The Attorney has been good enough to do so and we are grateful to Mr Murray for his appearance today as friend of the court. I also directed that the cross-appeal on the human rights issue be listed separately from the appeal, which, it will be recalled, has been postponed to await the judgment of this court in Ali and Mucaj. In the result, then, we are dealing with the cross-appeal on the human rights issue only.

It is of course elementary that the AIT is a creature of statute and thus possesses only the jurisdiction which statute has conferred upon it. In this case, the most pertinent provisions are contained in sections 82 and 84 of the 2002 Act. First, section 82(1):

“(1)

Where an immigration decision is made in respect of a person, he may appeal [to the Tribunal]. [I interpolate, the statute has been amended, it previously referred to an adjudicator].

“(2): In this part ‘immigration decision’ means …

“(d)

refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no need to enter or remain …

“(g)

a decision that a person is to be removed from the United Kingdom by way of directions under [section 10(1)(a), (b) or (c) of the Immigrations and Asylum Act 1999 (removal of person unlawfully in United Kingdom).”

I may go to section 84(1):

“An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds …

“(c)

that the decision is unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights …

“(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.”

There are other statutory provisions to which I will refer in addressing counsel’s submissions. Evidently the court has to decide whether an “immigration decision” consisting in a refusal to vary leave, which is appealed pursuant to section 82(2)(d), is an immigration decision “in consequence of which” the appellant’s removal would be unlawful under the Human Rights Act section 6 as being incompatible with the appellant’s Convention rights. The answer to the question must, I think, depend on the sense Parliament intended to give to the phrase “in consequence of”. In a case where variation of leave has been refused, removal is not an immediate consequence. Removal directions must separately be given if the appellant is to be removed under the present statutory regime. Such directions cannot be given contemporaneously with the refusal to vary leave. But removal may at least be an indirect consequence of the refusal to vary: without it, removal directions could not lawfully be given. Did Parliament, in enacting section 84(1)(g), intend this latter, wider sense of consequence or only the narrower sense so that it referred to an imminent removal?

There is first, as it seems to me, a consideration of public policy which illuminates the construction of the subsection. As the Secretary of State submits by Miss Grey of counsel, once a person’s appeal against a refusal to vary his leave is dismissed, he must leave the United Kingdom. If he does not, he commits a criminal offence (Immigration Act 1971, section 24(1)(b); the 2002 Act, section 11). His entitlement to state benefit is also affected. If another employs him, that other is guilty of a crime (Asylum and Immigration Act 1996, section 8). On the AIT’s view of the question, namely that the human rights issue is not justicable on a variation of leave appeal, the unsuccessful appellant in such a case, if he has a potential article 8 claim which would so to speak come live on his removal, surely faces a very unsatisfactory choice. Either he leaves the United Kingdom, as the criminal law says he must, without his human rights claim being determined, or he remains until removal directions are given, anticipating that at that stage he will be able to ventilate his human rights claim before the AIT.

It seems to me to be wrong in principle that the price of getting before an independent tribunal, for a judicial decision on a human rights claim should be the commission of a criminal offence and other associated legal prohibitions. But that seems to me the effect of the AIT’s conclusion. However, the position may be even starker than this. Given what I have said so far, it might be thought that an appellant who after an unsuccessful variation appeal waits until removal directions are set, will at that stage, at any rate, have a clear right of appeal exercisable from within the United Kingdom in which he could deploy his human rights claim. The appeal would lie under section 82(2)(g), which I have read. But that is not necessarily the position. By force of section 92 of the 2002 Act, a section 82 appeal against an immigration decision of the kind specified in section 82(2)(g) can only be maintained from abroad, unless a human rights claim has been made within the meaning of section 113; that is, it must have been made in the place designated by the Secretary of State.

Miss Grey submits that this provision in section 92 applies only to a fresh asylum or human rights claim, as contemplated by paragraph 353 of the current immigration rules (HC 395, para 353). Thus, submits Miss Grey, absent a fresh claim the right of appeal against removal directions is only exercisable from abroad. I am not sure whether this is right as a matter of the construction of section 92, which I will not set out, but it is plain that if the Secretary of State certifies that the human rights claim is clearly unfounded, as he may do under section 94 of the 2002 Act, then there is no in-country appeal.

On this basis there is at least one class of case in which, if the AIT is right, the appellant’s human rights claim could not be adjudicated within the United Kingdom: that is to say, a case where the Secretary of State certifies under section 94. It seems to me that unless the human rights claim can be dealt with on the variation appeal, the Secretary of State’s power to certify under section 94 would surely be distorted and possibly unduly limited. Its utility is to ensure, by and large, that removal direction appeals are dealt with on an out-of-country basis save where, for example, there is a substantial new human rights case. If, however, an article 8 case or other human rights case, sought to be made before the AIT on a variation appeal, is shut out by force of the reasoning of the AIT in this case, it would not have been adjudicated upon by the time the Secretary of State comes to consider removal directions; and the potential exercise of his power to certify under section 94 would surely be very considerably inhibited if the consequence of its exercise were, in effect, to prevent any in-country adjudication of the human rights claim. It seems to me that this consideration, added to the public policy consideration to which I have drawn attention, also militates in favour of the Secretary of State’s submission.

Miss Grey also submits roundly that in a case of this kind the reality is, at least in many cases, that human rights issues will be integral to the Secretary of State’s decision-making process relating to the variation of leave itself. She draws attention to the decision letter in this case. It is dated 16 January 2004. The very last sentence reads:

“On the basis of the information you have provided, it has been concluded that your removal would not be contrary to the United Kingdom’s obligations under the ECHR.”

It is true, judging anyway from the terms of the decision letter, that article 8 had not at that stage distinctly, been raised; it was raised later before the adjudicator. But article 8 issues might readily have been raised; and there is plainly force in this submission that, depending on the particular facts, human rights issues are indeed likely to be integral to the process of deciding whether an immigrant’s leave should or should not be varied.

There is a further point. It is clear that the legislation leans in favour of what are called “one-stop appeals”. Miss Grey refers to sections 96 and 120 of the 2002 Act. I will not set them out; it is enough to say that successive appeals under section 82 are discouraged by procedures for the service by the Secretary of State of a “one-stop” notice on an appellant, requiring him to state all the reasons why he should be entitled to remain in the United Kingdom, and he may not subsequently raise such issues in a later appeal if the Secretary of State certifies that he should have or did or would have been permitted to raise them in an earlier appeal. Such a notice was given in this case, accompanying the Secretary of State’s refusal to vary the appellant’s leave (page 93 of the bundle).

Next the Secretary of State urges a further textual consideration. Miss Grey submits that section 84(1)(c), which I have read, suffices to allow a right of appeal on human rights grounds in every case where the immigration decision in question would give rise to an imminent threat of removal and thus an imminent potential violation of ECHR rights. In that case, she says, the reference to the Human Rights Act in section 84(1)(g), if it is in truth to have independent application, must be held to contemplate a broader or more remote contingency. There is, I think, some force in that.

Reference is made in the course of counsel’s written submissions to a decision of this court in Saad & ors v Secretary of State [2001] EWCA Civ 2008, in which this court had to consider section 8(1) of the Asylum and Immigration Appeals Act 1993 and section 69 of the Immigration and Asylum Appeals Act 1999. The court said, paragraph 58:

“… all asylum appeals under section 69 of the 1999 Act (and thus under section 8 of the 1993 Act) are hypothetical in the sense that they involve the consideration of a hypothesis or assumption, which is reflected in the wording of each of the subsections of section 8, namely that the applicant's removal or requirement to leave (as the case might be) ‘would be contrary to the United Kingdom's obligations under the Convention’ (our emphasis).”

I should say that section 8(1) was to all intents and purposes in identical terms to section 84(1)(g) of the 2002 Act. This learning is deployed as authority for the proposition that section 84(1)(g) looks to a future contingency. The AIT distinguished Saad from the present case (see paragraphs 32 and 33 of the determination) on the ground that Saad was an asylum case, not an ECHR case; and a refugee, once recognised as such, enjoyed an objective international status which ought to be ascertained even where the appellant’s removal to a place where he feared persecution was not imminent.

In my judgment that does no more than point to the fact that the rights conferred by the ECHR and the Refugee Convention are, in various respects, not the same. The reasoning in Saad, however, seems to me with respect to point strongly towards the wider view of the term “in consequence of” in section 84(1)(g), in contrast to the narrower approach, a contrast I have explained earlier.

The short, but important, position is that once a human rights point is properly before the AIT, they are obliged to deal with it. That is consonant with the general jurisprudence relating to the obligations of public bodies under the Human Rights Act and seems to me to be the proper result of the construction of the relevant provisions. I should add that the AIT referred to Strasbourg authority, they said at paragraph 33:

“We are aware that it has sometimes been said that, in dealing with a refusal to vary leave to enter or remain, the appellant authorities should deal also with human rights on removal on the basis that removal is imminent: but it is not imminent in any legal sense because of the need for a further decision. So much is clear from the European Court of Human Rights decision in Vijayanathan and Pusparajar v France (1992) 15 EHRR 62.”

With deference to the AIT, the reasoning of the Strasbourg court in that case takes the matter no further. The most that can be said is that the construction of section 84(1)(g), which I prefer for the reasons I have given, may yield a broader accommodation of human rights than might be insisted upon by the court at Strasbourg; manifestly, that would involve no interference with or violation of anyone’s Convention rights.

Mr Murray, as friend of the court, submitted that by force of section 86(5) of the 2002 Act, the AIT had no jurisdiction to entertain the human rights question here. Section 86(1) provides:

“(1)

This section applies on an appeal under section 82(1) …

“(2)

[The Tribunal] must determine -

(a)

any matter raised as a ground of appeal …

“(3)

[The Tribunal] must allow the appeal in so far as it thinks that

(a)

a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or

“(b)

a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently …

“(5)

Insofar as subsection (3) does not apply, [the Tribunal] shall dismiss the appeal.”

I have, with respect, some difficulty understanding the argument. All that subsections (3) and (5) are doing is describing the circumstances in which the Tribunal has to allow an appeal and, in effect, providing that in other cases the appeal must be dismissed. On the construction which I prefer of section 84(1)(g), if the Tribunal hearing the variation appeal thought the human rights point to be good, it would be obliged to allow the appeal pursuant to section 86(3)(a) and the provision contained in section 86(5) would not arise.

Mr Murray also submitted or, perhaps it is better to say, was prepared to accept that in a case where a human rights point, albeit under article 8, was first raised with the Secretary of State and then raised again with the appellate authorities, it would be open to the appellate authorities (the AIT) to deal with the point on a variation appeal: but that would be by force of section 84(1)(c). It seems to me that submission does not, in truth, touch the proper construction of section 84(1)(g). 84(1)(c) plainly is apt to deal with appeals against removal directions where the removal of the appellant is by definition imminent.

In the result, for all the reasons I have given, I would allow the cross-appeal of the Secretary of State and hold that the construction of section 84(1)(g), adopted by the AIT in this case, was erroneous.

LORD JUSTICE WALLER: I agree.

LORD JUSTICE LEVESON: I also agree.