Secretary of State for the Home Department v AS (Somalia), & Ors

When is a person whose asylum claim has been rejected by the Secretary of State entitled to appeal against that rejection? Given the importance of the right to asylum under the Geneva Convention of 1951 Relating to the Status of Refugees as amended by the Protocol to the Convention 1967 (”the Refugee Convention”) it might be thought that there would be a simple and straightforward answer to that question.

The Secretary of State appeals against the orders of Beatson J granting the Respondents’ applications for judicial review of decisions by Immigration Judges that the Respondents did not have a right of appeal under section 83 of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”) to the First-tier Tribunal (Immigration and Asylum Chamber) (“the Tribunal”). Beatson J quashed the decisions of the Immigration Judges and declared that each of the Respondents had a right of appeal to the Tribunal.

There was no application for a stay of Beatson J’s Order, so the Tribunal proceeded with the appeals. AS was held to be a refugee by Immigration Judge Ford in a determination dated 9^th May 2011. CW’s appeal was dismissed by Designated Immigration Judge McCarthy in a determination dated 4^th June 2011, but permission to appeal to the Upper Tribunal was granted by Immigration Judge Coker on 28^th June 2011. A further hearing is awaited. SD withdrew his appeal to the Tribunal.

In these circumstances, the Secretary of State’s appeal in SD’s case is now academic, and Mr. Payne withdrew this appeal upon the basis that the issue of principle would in any event be determined in the appeal in CW’s case.

In a revised Skeleton Argument submitted shortly before the hearing the Secretary of State accepted that, contrary to the submissions made on her behalf before Beatson J, AS did have a right of appeal under section 83. Although Mr. Payne withdrew the appeal against Beatson J’s Order in the case of AS, it will be necessary to consider the facts of that case in some detail because Mr. Mackenzie submitted that there is no relevant distinction between the facts of AS, in which the Secretary of State now accepts that there is a right of appeal, and the facts of CW, in which she still contends that there is no right of appeal.

Section 82 of the 2002 Act confers a general right of appeal against an “immigration decision”, as defined in subsection 82(2). It is common ground that a refusal, or rejection, of a claim for asylum is not an “immigration decision” in respect of which an appeal may be made under section 82. However, one of the grounds in section 84(1) on which an appeal may be brought under section 82 is ground (g):

“(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…….”

Section 83 is set out in paragraph 1 of Beatson J’s judgment [2011] EWHC 627 (Admin), but for convenience I set it out below:

“83 Appeal: asylum claim

(1)

This section applies where a person has made an asylum claim and –

(a)

his claim has been rejected by the Secretary of State, but

(b)

he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).

(2)

The person may appeal to the Tribunal against the rejection of his asylum claim.”

During the course of submissions reference was also made to section 83A, which was inserted by the Immigration, Asylum and Nationality Act 2006, and which provides as follows:

“83A Appeal: variation of limited leave

(1)

This section applies where –

(a)

a person has made an asylum claim,

(b)

he was granted limited leave to enter or remain in the United Kingdom as a refugee within the meaning of the Refugee Convention ,

(c)

a decision is made that he is not a refugee, and

(d)

following the decision specified in paragraph (c) he has limited leave to enter or remain in the United Kingdom otherwise than as a refugee.

(2)

The person may appeal to the Tribunal against the decision to curtail or to refuse to extend his limited leave.”

Subsections 84(3) and (4) prescribe the grounds on which appeals under sections 83 and 83A must be brought:

“(3)

An appeal under section 83 must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention.”

“(4)

An appeal under section 83A must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention.”

Section 92 prescribes the kinds of appeal under section 82 which may be made while the Appellant is in the United Kingdom. They include appeals against immigration decisions if the Appellant has made an asylum claim (or a human rights claim) while in the UK. Where the Appellant has made such a claim, section 94 enables the Secretary of State to certify the claim as clearly unfounded, thus preventing the Appellant from pursuing an “in-country” right of appeal under section 82.

Section 96 enables the Secretary of State to prevent repetitious appeals under section 82 against immigration decisions if, in summary, she certifies that an Appellant is appealing against a “new” immigration decision in reliance upon a matter which he should have raised in response to an earlier immigration decision – “the old decision.”

The factual background to all three cases is set out in some detail in paragraphs 2-41 of the judgment of Beatson J. There is no challenge to the judge’s account, and I do not repeat it. In view of the Secretary of State’s concession that AS was entitled to a right of appeal, it is necessary to consider what differences there are (if any) between the facts of his case and those in the case of CW.

AS claimed asylum on his arrival in the UK as an unaccompanied minor on 6^th October 2006. In a “Reasons for Refusal” letter (RFRL) dated 15^th November 2006 an official acting on behalf of the Secretary of State considered his application. Having examined the claim in great detail, the official concluded in paragraph 28 of the letter

“28.

In the light of all the evidence available, it has been concluded that you have not established a well-founded fear of persecution and that you do not qualify for asylum. Your asylum claim is therefore refused under paragraph 336 of HC395 (as amended) ……..”

The RFRL was attached to another letter dated 15^th November 2006, headed “Determination of Asylum Claim”, which was sent to AS’s Solicitors. That letter said:

“Your client’s claim for asylum in the United Kingdom has been carefully considered within the Immigration and Nationality Directorate of the Home Office and it has been refused for the reasons given in the Reasons for Refusal letter, a copy of which is attached for your records. Your client’s claim has been recorded as determined on 15/11/2006. However, a decision has been taken that it would be appropriate, because of the particular circumstances of your client’s case, to grant him leave to remain in the United Kingdom on a discretionary basis outside the Immigration Rules for a specified period.

This decision is not an appealable decision under section 82 of the Nationality, Immigration and Asylum Act 2002.”

In another letter dated 15^th November 2006 AS was granted discretionary leave to remain in the UK until 2^nd March 2007, the day before his 18^th birthday. On 27^th February 2007 he applied for an extension of that leave. An accompanying letter from his Solicitors contended that he was a refugee. Just over three years later, on 31^st March 2010, AS was granted Indefinite Leave to Remain (ILR). His claim to be a refugee, however, was not determined and he appealed to the Tribunal: see paragraphs 23-28 of the judgment of Beatson J.

Before Beatson J it was submitted by Counsel who then appeared on behalf of the Secretary of State (not Mr. Payne) that there had to be a nexus between the grant of leave to enter or remain for a period of one year or more (para. (b) in subsection 83(1)) and the rejection of the asylum claim (para. (a) of subsection (1)). Thus, AS could not rely on the rejection of his asylum claim on 15^th November 2006 because there was no nexus between that rejection and the grant of ILR some three years later: see para. 57 of Beatson J’s judgment. Nor could AS rely upon his claim to be a refugee in February 2007, when applying to extend his discretionary leave, because the Secretary of State had not reached any decision upon that claim. It was “a precondition to an appeal under section 83 that there is …… a decision upon the asylum claim that is before the Secretary of State”: see paragraph 52 of the judgment.

Beatson J rejected the submission that there had to be a nexus between the rejection of the claim for asylum and the grant of leave to enter or remain for one year or more (in AS’s case the grant of ILR). That submission was not pursued by Mr. Payne. He was right not to do so. As Beatson J pointed out in paragraph 58 of his judgment, section 83(1)(b) refers not only to a period exceeding one year, but to “periods exceeding one year in aggregate.” It follows that the grant of leave which causes the period of leave to exceed one year in aggregate need not be contemporaneous with the rejection of the person’s asylum claim, and the reason for the subsequent grant of leave which causes the period of leave to exceed one year in aggregate may be wholly unrelated to the rejection of the asylum claim.

The Secretary of State now accepts that the rejection of AS’s asylum claim on 15^th November 2006 and the grant of ILR on 31^st March 2010, fell within paragraphs (a) and (b) respectively of section 83(1), so that AS was entitled to appeal against the rejection (on 15^th November 2006) of his asylum claim under section 83: see section 83(2). How does the position of AS differ from that of CW?

CW claimed asylum on 23^rd June 2004 after she had been arrested and detained as an immigration offender. Her claim was considered by an official acting on behalf of the Secretary of State in a RFRL dated 10^th August 2004. After a lengthy and careful examination of the claim the letter concluded in paragraph 34:

“34.

In the light of all the evidence available, it has been concluded that you have not established a well-founded fear of persecution and that you do not qualify for asylum. Your asylum claim is therefore refused under paragraph 336 of HC395 (as amended) and has been recorded as determined on 10^th August 2004.”

CW was served with a Notice of Refusal of Leave to Enter dated 11^th August 2004. That Notice said (so far as relevant):

“You have applied for asylum in the United Kingdom. The Secretary of State has decided to refuse your application for the reasons set out in the attached notice.

You have not sought entry under any other provision of the immigration rules.

I therefore refuse you leave to enter the United Kingdom. If your leave was conferred by an entry clearance, this will also have the effect of cancelling your entry clearance.

REMOVAL DIRECTIONS

I propose to give directions for your removal to Jamaica by flight at a date and time to be notified.”

The Notice then explained CW’s right to appeal under section 82, and said that a notice of appeal on all grounds had to be received by 18^th August 2004.

At the relevant time, paragraph 336 of the Immigration Rules referred to in paragraph 34 of CW’s RFRL (and in para. 28 of AS’s RFRL, see para. 13 above) dealt with “Refusal of Asylum” as follows:

“An application which does not meet the criteria [for the grant of asylum] set out in paragraph 334 will be refused.”

CW appealed under section 82 against the decision to refuse her leave to enter the UK and to give removal directions. In effect, the sole ground of her appeal was that provided by paragraph (g) in section 84(1): that removing her to Jamaica would be in breach of the UK’s obligations under the Refugee Convention. In a determination promulgated on 1^st December 2004 an Adjudicator dismissed her appeal, having found much of her account to be implausible and lacking in credibility. There was no appeal against this decision, and CW’s appeal rights under section 82 were exhausted in February 2005.

On 10^th July 2009 CW’s Solicitors submitted new evidence which they contended amounted to a fresh claim for asylum. On 9^th March 2010 CW was granted ILR. She was told that the Secretary of State would assume that she wished to withdraw her further submissions claiming asylum if she did not contact the UK Border Agency within 14 days. Her Solicitors replied that CW did not wish to withdraw her further submissions. The Secretary of State has not made any decision in respect of those submissions.

Although Mr. Payne accepted that:

Conscious of the fact that the requirement in paragraph (a) of section 83(1) that an asylum claim has been rejected is not qualified by words such as “otherwise than in the context of an immigration decision for the purposes of section 82”, Mr. Payne submitted that section 83 should be given a purposive construction. The mischief aimed at by the section was, he said, clear. It was necessary to provide those persons whose claims for asylum had been rejected with no right of appeal under section 82 because no immigration decision had been made as a result of the refusal of asylum, with a right of appeal. It was not necessary to provide those persons who had been able to appeal on ground (g) in section 84 (because an immigration decision had been made, eg. to refuse leave to enter or remain, and/or to direct removal as a result of the refusal of asylum) with a second “bite at the cherry”.

Neither Mr. Payne nor Mr. Mackenzie was able to explain why, other than as a matter of historical happenstance, the list of immigration decisions in section 82(2) does not include a decision to reject an asylum claim under the Refugee Convention. As the Court of Appeal explained in paragraph 22 of Saad, Diriye and Osorio vSecretary of State for the Home Department [2001] EWCA Civ 2008,

“….Instead of providing an overall express regime for each application to be recognised as a refugee to be determined, Parliament has adopted a piecemeal approach and provided for the question of refugee status to be determined in a variety of specific situations connected with action taken under the Immigration Acts.”

The 2002 Act replaced the Immigration Act 1999 (“the 1999 Act”) which had replaced the Asylum and Immigration Appeals Act 1993 (“the 1993 Act”).Under the 1993 Act there was no right of appeal against the refusal of asylum. There was a right of appeal under section 8 against certain decisions, eg. a refusal of leave to enter or a decision to make a deportation order, on the ground that the person’s removal would be contrary to the Refugee Convention. Section 8 of the 1993 Act is set out in paragraph 35 of the judgment of the Court in Saad. The court concluded that:

“Parliament intended that section 8 would permit appeals in relation to refugee status insofar as the language of the section permitted it” (para. 74).

In paragraph 73 the Court noted the enactment of section 69 of the 1999 Act, which was not in force at the time the relevant decisions were taken. Section 69(3) of the 1999 Act expressly provided for a right of appeal against the refusal of asylum for asylum seekers who had been granted at least 28 days leave to remain. The distinction between an immigration decision, against which there is (now) an appeal under section 82, and the rejection of an asylum claim was maintained in the 2002 Act, and the “upgrade” appeal provided by section 69(3) of the 1999 Act was maintained, in a modified form with the period of leave extended from 28 days to one year, in section 83.

It would be easier to give section 83 a purposive construction if there was some clear policy justification, other than the manner in which the legislative scheme happens to have evolved, for the exclusion of a decision to reject an asylum claim from the list of immigration decisions in section 82(2). It is clear, however, that giving CW a right to appeal under section 83 against the rejection of her asylum claim on 10^th August 2004 will not be giving her a second right of appeal against the Secretary of State’s rejection of that claim. In 2004 she had a right of appeal, which she exercised, against the immigration decision, to refuse her entry to, and remove her from, the UK. On that appeal she was entitled to, and did, argue that her removal from the UK would be in breach of the Refugee Convention (subsection 84(1)(g)). On her appeal under section 83 she was pursuing the same argument, this time under subsection 84(3), but her appeal under section 83 was (by reason of the distinction drawn between immigration decisions and rejection of asylum claims) her first opportunity to appeal against the rejection of her asylum claim.

Nevertheless, since the substance of the ground of appeal under subsections 84(1)(g) and 84(3) is the same, even though the decision appealed against is different, there is much force in Mr. Payne’s submission that in enacting section 83, and section 83A to which similar considerations apply, Parliament did not intend to provide a second bite at the cherry. However, the starting point must be that Parliament’s intention in enacting section 83 must be ascertained by reference to the language actually used by Parliament:

“We are seeking the meaning of the words which Parliament has used.”

Section 83 confers a right of appeal. Moreover, it is a right of appeal against the rejection of a claim that is of very considerable significance: see the decision in Saad (above). If Parliament wishes to qualify the right of appeal against such a decision it is entitled to do so, but it would not be right for the Court to read words of qualification into section 83 upon the basis that, as asserted on behalf of the Secretary of State, “it could not have been Parliament’s intention to provide for a second right of appeal.”

The 2002 Act is highly prescriptive. It sets out in great detail those decisions which may be appealed (section 82); the grounds on which they may be appealed (section 84); the circumstances in which an in-country right of appeal may be made (sections 92 and 94); and the circumstances in which appeals may not be based upon matters which should have been raised at an earlier stage (section 96). The Court should be very slow to read words into such a detailed, self contained, statutory code.

Although Mr. Payne was reluctant to concede the point, there can be no doubt that the means by which the Secretary of State now seeks to draw a distinction between the cases of AS and CW does require the Court to read in, at some point in subsection (1)(b), or at the end of subsection (2), of section 83, qualifying words to the effect that the rejection of an asylum claim by the Secretary of State does not include a decision to reject the claim if that decision is taken in the context of an immigration decision under section 82.

There is no dispute that CW had made an asylum claim in 2004. In response to a question from Davis LJ, Mr. Payne accepted that the Secretary of State had rejected that claim in the RFRL dated 10^th August 2004. He was right to do so. The RFRL does not merely give the reasons for a decision to reject the claim which decision is to be found in a separate document, it expressly rejects the claim: “Your asylum claim is therefore refused under paragraph 336 of HC 395 (as amended) and has been recorded as determined on 10^th August 2004.” The Notice of Refusal of Leave to Enter is a separate decision which refers back to the earlier rejection of the asylum claim. Mr. Payne submitted that the RFRL and the Notice of Refusal of Leave to Enter should be considered as one composite decision, since the latter refers to the former and both would have been served on CW at the same time. The fact remains that two separate decisions were made: the first to refuse the asylum claim under rule 336 on 10^th August 2004, which might, or might not (see the case of AS), lead to a further decision to refuse leave to enter. In the event, that decision was made in CW’s case on the following day, the 11^th August 2004, but there is no reason in principle why the second decision, to refuse leave to enter, could not have been made weeks or even months later. In CW’s case there was an immigration decision, against which she could appeal under section 82, but that immigration decision was preceded by a decision rejecting her asylum claim.

Mr. Payne submitted that if the right to appeal under section 83 was not limited to those persons who had not previously had a right of appeal under section 82 the consequences would be absurd. To take an extreme example, a person whose asylum claim had been rejected many years ago, who had been served with removal directions, and who had appealed unsuccessfully under section 82 against those directions on ground (g) in section 84(1), but had not been removed from the UK (by no means an uncommon occurrence), might subsequently apply for ILR under rule 276B on the basis of 14 years continuous residence in the UK. If ILR was granted, that person could then appeal under section 83 against the rejection of his asylum claim more than 14 years previously.

The fact that a straightforward reading of the words used by Parliament when enacting section 83 is capable of producing absurd consequences in particular cases is not, in my view, a sufficient reason for placing a gloss upon those words. Once it is accepted that there need be no nexus between the rejection of an asylum claim and the grant of leave to remain that causes the period of leave to exceed one year, the possibility of a lengthy delay (over 3 years in AS’s case) between the two events is inherent in the statutory scheme. If section 83 does create a “loophole” which has serious adverse consequences for the immigration system, then Parliament can legislate to stop it up.

In any event, I am not persuaded by the submission that a right of appeal under section 83 shorn of the qualification sought by the Secretary of State will in practice have serious adverse consequences. The implicit submission that there is likely to be a large number of spurious asylum appeals under section 83 from persons whose claims have been rejected in the context of a section 82 decision would appear to be contrary to the evidence filed on behalf of the Secretary of State by Mr. McGirr, a Senior Executive Officer in UKBA’s Specialist Appeals Team. The relevant extract from Mr. McGirr’s Witness Statement is set out in paragraph 24 of Beatson J’s judgment. For present purposes the first sentence of paragraph 6 of his Witness Statement dated 26^th January 2010 is of particular relevance:

“The majority of those that claim asylum are keen to ensure that they are able to remain in the UK lawfully and are content to accept the grant of ILR as conferring upon them a lawful basis upon which they may remain in the UK.”

There is undoubtedly a problem of spurious and/or repetitious claims for asylum in the context of appeals under section 82. Sections 94 and 96 enable the Secretary of State to respond to that problem and they do not, as Mr. Payne pointed out, apply to appeals under section 83. Thus, he submitted that the Secretary of State will not be able to prevent manifestly unfounded and/or repetitious appeals under section 83. Again, the potential problem is overstated. Appellants under section 82 are, in practice, seeking to prevent their removal from the UK (see the list of immigration decisions in subsection 82(2)). It is understandable, if regrettable, that such Appellants will make every endeavour, however hopeless, to avoid or postpone their removal. By contrast, those entitled to appeal under section 83 will, by definition, have been given leave to remain in the UK for at least a year, and will know that if that leave is not extended they will be entitled to an appeal under section 82. While there are advantages in obtaining refugee status in terms of access to employment, housing and welfare benefits, the ability to travel and to bring family members to the UK (see paras. 9 and 10 of Saad), a wish to obtain such advantages under section 83 should not be equated with a determination to remain in the UK at all costs under section 82: see paragraph 82 of the judgment of Beatson J.

CW had further evidence to support her claim for asylum which she wished to place before the Tribunal. Although her appeal was dismissed, it was dismissed upon the basis that internal relocation was possible. Her account, which had previously been rejected as lacking in credibility, was accepted by the Designated Immigration Judge. If CW had not been able to produce any new evidence, but had simply repeated in her section 83 appeal the case which had been considered, and rejected, under section 82 in 2004, her appeal would have been bound to fail. Applying the principles in Devaseelan [2002] UKIAT 00702 [2003] Imm. A.R 1, the Designated Immigration Judge took the Adjudicator’s determination in 2004 as his starting point, but was persuaded by the new evidence that CW’s account was true.

The principles in Devaseelan are well established, as explained by Beatson J in paragraphs 82-84 of his judgment. CW’s case is a useful illustration of the application of those principles. A person whose claim for asylum has been rejected in the context of a section 82 immigration decision against which he has unsuccessfully appealed will be told if he seeks legal advice and/or public funding that he will fare no better in a subsequent appeal under section 83 unless he can persuade the Tribunal that there is some good reason to depart from the earlier decision. In Abiyat and Others (rights of appeal) Iran [2011] UKUT 00314 (IAC) Mr. Ockelton, the Vice President of the Upper Tribunal (Immigration and Asylum Chamber), endorsed the reasoning of Beatson J in this case: see paragraphs 27-29 of his judgment. He is particularly well placed to assess whether Beatson J’s decision is likely to have untoward consequences for the appellate system.

The Secretary of State accepts that if further representations do amount to a fresh claim for asylum then a rejection of that claim will entitle a person to appeal under section 83 if they have been given leave to enter or remain for a period, or periods, exceeding a year. In all three cases before Beatson J the Secretary of State had decided, for administrative reasons, as explained in paragraph 24 of the judgment, not to reach a decision on the representations claiming asylum. Insofar as the Secretary of State’s own administrative practices exacerbate the potential problem posed by the plain wording of section 83 – because those persons who do have fresh asylum claims which are meritorious and should be granted do not have them determined by the Secretary of State, and those persons whose representations do not amount to a fresh claim but are simply a repetition of an earlier claim which has previously been rejected in the context of a section 82 appeal are not sent a decision letter to that effect – the remedy lies in her own hands. Prompt decision making by the Secretary of State will reduce the need to resort to the Tribunal.

For the sake of completeness I should mention that we were referred to paragraphs 219-222 of the Explanatory Notes to the 2002 Act. It is unnecessary to set them out. They do not support the proposition that the right of appeal under section 83 is qualified as submitted by Mr. Payne. We were also referred to various provisions in The Immigration (Notices) Regulations 2003, The Immigration and Asylum Appeals (Procedure) Rules 2003 and The Asylum and Immigration Tribunal (Procedure) Rules 2005. I would merely observe that there is nothing in this subordinate legislation which would justify reading words into the primary legislation in the 2002 Act.

For these reasons I would dismiss the appeal in CW’s case.

I agree that the appeal of CW should be dismissed for the reasons given by Sullivan LJ.

I also agree.