MM (Ghana), R (on the application of) v Secretary of State for the Home Department

There are two issues before the court. First, there is an application to set aside an order made by Lord Justice Sullivan on 15 September 2011 that the applicant was to be treated as having abandoned an application for permission to appeal against a decision of the Upper Tribunal Immigration and Asylum Chamber under s.104(4) of the Nationality Immigration and Asylum Act 2002. That section deals with appeals brought under s.82 of the Act, which provides a right of appeal against immigration decisions, including a decision to make a deportation order. S.104(4) provides:

“An appeal under s82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant leaves the United Kingdom.”

The issue on the application to set aside Lord Justice Sullivan’s order concerns the meaning of the word “leaves” when used in that subsection. If the first application fails, and the applicant’s statutory appeal from the decision of the upper tribunal is to be treated as abandoned, he seeks to challenge the same decision by way of an application for judicial review. On reading the application Lord Justice Sullivan gave directions for an oral hearing to determine the two following preliminary issues:

“(1)

Whether upon a proper construction of s.104(4) of the 2002 Act the appellant has left the UK so that his appeal is to be treated as abandoned, and

(2)

If the answer to (1) is yes, whether the court has jurisdiction to treat the application for permission to appeal as an application for permission to apply for judicial review of the upper tribunal’s decision when the appeal against that decision had been abandoned, or if it has jurisdiction, whether it should decline to exercise that jurisdiction on the basis that the appeal has been abandoned.”

The order went on to provide that if either of those issues were determined in the appellant’s favour, his application for permission to appeal or to apply for judicial review would be determined later on the papers.

The applicant is a citizen of Ghana. He entered the UK illegally in 1997. On 10 February 2010 he was arrested for possession and/or use of a false instrument and on 17 February 2010 he was convicted of offences of obtaining a money transfer by deception and of knowingly possessing a false instrument.

On 27 July 2010 the respondent made a decision to make a deportation order against him. The applicant appealed against that decision and his appeal was dismissed by the first tier tribunal on 7 December 2010. He was granted permission to appeal to the upper tribunal but the upper tribunal dismissed his appeal on 5 April 2011. It refused him permission to appeal to this court on 16 June 2011.

On 1 July 2011 he filed a notice seeking permission to appeal to this court. On 8 July 2011, his solicitors informed the respondent that he intended to go abroad. They wrote:

“Our client has confirmed that he intends to leave the United Kingdom temporarily whilst the appeal is ongoing. He confirms that his intention remains at all times to return to the United Kingdom in the event that his substantive appeal is allowed.”

On 11 July 2011 the UK Border Agency wrote to the applicant’s solicitors:

“With regards to his outstanding appeal, UK Border Agency will consider his appeal to be abandoned and it will be open to yourself and your client to make representations to the court whether this appeal should be left open once he has left the UK. We will abide by the decision made by the court.”

The applicant left the UK for Ghana on 16 July 2011. His reasons for going were set out by him in a written statement. They had to do with his inability to obtain work in this country and pressures on his family. His decision to return to Ghana was a calculated decision, knowing that he would not be allowed back into the UK with a decision to make a deportation order outstanding against him.

In LB (Jamaica) v SSHD [2011] EWCA Civ 1420 this court rejected a submission that the phrase in s104(4), “an appeal under s82(1)”, is confined to an appeal pending before the tribunal and does not extend to an appeal from the tribunal to the Court of Appeal. Mr Malik recognised that the decision is binding at this level, but reserved his right to challenge its correctness in the Supreme Court.

Mr Malik submitted that the applicant never left the UK within the meaning of s.104(4). He submitted that the word “leave” should be interpreted as meaning, “leaves with no intention to return”. Mr Malik observed that the Concise Oxford Dictionary gives a number of meanings for the word “leave”. They include, “go away” or “depart”; they also include “abandon”, “renounce” and “go away permanently”. He submitted that in the context of s.104(4) Parliament must have intended the latter meaning, because it would not be fair to infer an abandonment of an appeal from a departure which was intended to be of a temporary nature.

We have been referred to two authorities on similar wording in immigration legislation. In Zinaidia Dupovac v SSHD [2000] EWCA Civ 10, [2000] IAR 265, the court considered the words:

“an appeal … shall … be treated as … ending when the appeal is finally determined or withdrawn or is abandoned by reason of the appellant leaving the United Kingdom.”

Those words appeared in s.33(4) of the Immigration Act 1971, as amended by the Asylum and Immigration Act 1996. The appellant had been refused asylum but had been granted exceptional leave to remain. During that period she travelled to Italy for two weeks on a social visit and returned within the period of her extant leave. It was accepted by her counsel, Mr Blake QC, that she had left the United Kingdom but he submitted that the words, “is abandoned by reason of the appellant leaving the United Kingdom”, did not compel the conclusion that her appeal had thereby been abandoned. He submitted that those words were aimed only at those persons who, if they left and went to another country, could not re-enter without a grant of leave. In that category would be those against whom deportation orders had been made.

However, he held that there was nothing in the language of the Act which permitted a different construction. At the end of his judgment he added the following caveat

“What Mr Blake did not, and possibly could not, argue on the facts of this appeal was that the appellant had not left the United Kingdom. It was put to Mr Blake in the course of the hearing before us, the question as to what would be the position if someone simply sailed out to sea and then back again during one afternoon. He rightly declined to wrestle with that problem. I would wish to reserve the question as to whether there may not be circumstances when despite a physical leaving of the shores of the United Kingdom, the physical leaving will not constitute ‘leaving the United Kingdom’ within the words as used in the statute.”

Chadwick LJ gave a judgment to a similar effect. He said:

“In my view … the words have been included in order to require the adjudicator or the appeal tribunal to treat an appeal as abandoned on the appellant leaving the United Kingdom without further enquiry into the facts of the particular case. That may seem a draconian result, but I see no escape from it.”

He added this final comment:

“I should add that I express no view on the circumstances in which a person will be held to have left the United Kingdom … it being accepted that whatever the precise nature of that requirement, it was satisfied in the present case.”

Sir Christopher Slade agreed with both judgments.

In Farshad Shirazi v SSHD [2003] EWCA Civ 1562 the appellant was an Iranian citizen who sought asylum in the UK. His claim was refused by the Home Secretary, allowed by an adjudicator, but the adjudicator’s decision was reversed by the immigration appeal tribunal. He appealed successfully to this court. While his appeal was pending, he travelled to the Netherlands on a false Iranian passport, but was refused entry and was returned to the UK on the following day. Counsel for the Home Secretary took a preliminary point that his appeal was deemed to be abandoned under s.58(8) of the Immigration and Asylum Act 1999. That subsection provided:

“An appeal pending under this part is to be treated as abandoned if the appellant leaves the United Kingdom.”

Both parties to the appeal accepted that the appellant had left the UK, but the issue was whether the words “an appeal pending under this part” included an appeal to the Court of Appeal. The court held that it did not and therefore the appeal had not been abandoned.

All three members of the court also expressed comments on the meaning of the word “leaves”. Sedley LJ said at paragraph 13:

“The true meaning of ‘leaves’ in s58(8) is an open question – see the concluding remarks of Waller and Chadwick LJJ in Dupovac [2000] IAR 265. I will assume for the purposes of this judgment, as Miss Webber has assumed for the purposes of her argument, that departure from the UK, provided it is voluntary, does not have to be with the intention of giving up residence here.”

Munby LJ observed that the word “leaves” may bear quite different meanings according to the context in which the word is used. He continued at paragraph 38 (page 179):

“It is by no means obvious to me that someone ‘leaves’ the United Kingdom within the meaning of s58(8) merely because in the course of an afternoon’s yachting or fishing, he briefly leaves territorial waters … Nor, coming closer to the facts of the present case, is it by any means obvious to me that someone ‘leaves’ the United Kingdom if his plan to go to another country outside the common travel area is thwarted by that country’s refusal to admit him and he is immediately put on the next plane back.”

Munby LJ added that he expressed no concluded view but emphasised that the meaning of “leaves” was open.

Mummery LJ went furthest in suggesting that a departure for a short holiday would not amount to “leaving the UK”. He said at paragraph 41:

“Both sides assume that the appellant ‘leaves the United Kingdom’ for the purposes of s58(8) by travelling from the United Kingdom to the Netherlands on 3 March 2003 for a short holiday, but is refused entry and returns to the United Kingdom on the following day. I doubt whether that assumption is correct. ‘Leaves’ in relation to a country is capable of covering a wide range of situations, ranging at one end from the mere fact of physical departure from a country, to, at the other end, immigration to another country. In the context of a stipulated consequence of being treated as abandoning a pending appeal, I seriously question whether the appellant ‘leaves the United Kingdom’ within s58(8) by travelling out one day for a short holiday and having to return the next day. In the absence of full argument, it would not be right to express a concluded view on the point.”

None of the comments made in Dupovac or Shirazi about the meaning of the word “leaves” was part of the ratio, since there was no dispute in either case about whether the appellant had left the United Kingdom. That said, in Dupovac there was no hint in the (obiter) views of any of the judges that “leaving” requires an intention not to return. Waller LJ’s only caveat related to the question of how far geographically a person needed to travel from the shores of the UK before he could be said to have left. The example he gave was that of someone who put out to sea and came back again without having made a land fall in any other country.

Chadwick LJ appears to have considered that the question whether someone had “left” the UK was a purely physical question, because he said that the purpose of the provision was to require the tribunal to treat an appeal as abandoned:

“…on the appellant leaving the United Kingdom without further enquiry into the facts of the particular case.”

He left open the same question as Waller LJ as to what that physically entailed.

In Shirazi the court introduced the question of the person’s state of mind as possibly relevant to the question of whether a departure from the UK amounts to “leaving the United Kingdom” in this type of case.

Having had the benefit of considering the arguments of counsel in this case, in my view it is erroneous to suppose that the question of whether a person has “left the United Kingdom” within the meaning of s.104(4) is in some way dependant on the actual or intended duration of his absence from the UK, whether hours, days, weeks or months. With great respect to Mummery LJ, I am not able to agree that a person who travels out on a short holiday and returns on the following day has not thereby “left the United Kingdom” within the meaning of the statute. Such a person has “left the United Kingdom” as a physical act. I would exclude the exceptional case of someone who did not leave of his own volition, but for example was kidnapped, because the word “leaves” implies a volitional act. But I would not interpret the word “leaves” as requiring additionally an intention never to return, or a minimum actual or intended period of absence.

It is of course right to consider the context in which the word is used. That includes it the subject matter of the Act in its broadest sense. Nationality, immigration and asylum law is all about who requires permission to enter or remain in the UK, and how they may acquire it. Someone who is not a British citizen requires leave to enter the UK – s.3(1) of the Immigration Act 1971. Entering and leaving the UK are opposites, and are essentially simple concepts, although there are some detailed rules which surround them.

A person who comes to the UK and then departs from it will need permission to enter the UK again, although such permission may of course have been granted in advance. When the applicant flew to Ghana, he put himself in the position that he would need permission to re-enter the UK. Because he was then subject to a decision to deport him, he would naturally not be given leave, and so he remains out of the jurisdiction; but his need for such permission accords with his having “left” the UK.

The question arises whether the word “leaves” should nevertheless be given some different and special meaning in s.104(4); that is to say, as meaning something other than leaves in the purely physical sense. There is no indication that the drafter so intended and there is good reason in my view for supposing that the drafter did not so intend. If one went down the route of saying that a “short” visit to another country, for example on holiday, would not amount to “leaving” the UK in the relevant sense, the question would then arise: what is meant by a “short” visit? It would presumably cover a day visit, but what about an overnight visit, or a visit for a week, or for a fortnight, or for a month, and so on?

Wherever the line would be drawn, it would be arbitrary because the statute offers no principle or guideline for deciding it. What if the intended duration was short but it became extended for any of a number of reasons, including medical, political or financial reasons? Again, the statute offers no clue how such questions would fall to be determined.

I would not interpret s.104(4) as being intended by Parliament to open up such questions and to leave them for tribunals and courts to improvise such answers as they thought best, with no indication as to the principle or criteria to be applied in doing so. Mr Malik, in his clear and succinct submissions, avoided such problems by submitting that “leaves” requires a departure with the intention of it being permanent. On that basis it is unnecessary to consider the actual duration of the departure; the sole governing criterion is whether the departure was made with the intention of it being permanent. However, that would be to read a major qualification into s.104(4), which is not expressed and could easily have been expressed. I see no justification for reading such a qualification into the section.

I add that it is hard to see why Parliament should have wished to include a specific provision of such narrow ambit, for if an appellant were to depart from the UK intending his departure be permanent, it is not easy to see why he would ordinarily then wish to incur the trouble and expense of prosecuting his appeal from abroad or why Parliament should have thought it necessary or appropriate specifically to legislate for such a contingency. I agree with Chadwick LJ’s suggestion that the purpose of the provision appears to be that the tribunal should be required to treat an appeal or application for permission to appeal as abandoned upon the applicant “leaving” the UK, without any further enquiry into the facts of the particular case, and that includes without further enquiry into the intentions of the departing person as to their return.

In some instances, the result may seem draconian, but, I would add, not in this case, where the appellant was aware before he flew to Ghana that the respondent would treat his departure as an abandonment of his appeal.

For those reasons, in my view the word “leaves” bears a purely physical meaning, the question being whether the applicant has by his voluntary action physically left the UK, whether for a short or a long term.

There remains the territorial question raised by Waller LJ about how far a person must travel by sea or by air from the landmass of the UK before he or she is considered to have left. It seems to me that, at the latest, a person who lands or attempts to land in another country has clearly “left” the UK, and therefore the concessions made by the appellants in Dupovac and Shirazi were rightly made.

As to the status of one who leaves the UK shoreline on a sea outing which begins and ends on UK soil and involves no visit to any other country, I would be content to leave that question for determination in another case, if in practice it ever arises. It does not arise in this case. A guide to the answer may be whether under immigration law, the person had reached a point after which they would require permission to land in the UK (which of course they might already possess) but that question has not been explored.

Mr Malik asked the court to treat the application for permission to appeal against the decision of the upper tribunal as an application for permission to apply for judicial review. The power of the High Court, and the courts above it, to grant judicial review of decisions of more junior courts, tribunals or administrative bodies is part of the inherent jurisdiction of the senior courts. The jurisdiction was formerly exercised through the issue of prerogative writs. The jurisdiction is part of our common law and has been shaped by the courts, taking proper account of relevant statutory provisions.

Miss Busch accepted that the court has jurisdiction to permit judicial review of a decision in respect of which there is a statutory scheme of appeal, but correctly submitted that the court must pay careful regard to the scheme which Parliament has enacted and any policy underlying it.

In R (Cart) v Upper Tribunal [2011] UKSC 28, [2011] 3 WLR 107 the Supreme Court cited with approval the following statement of principle by Lord Phillips of Worth Matravers in R (G) v Immigration Appeal Tribunal [2005] 1 WLR 1445 at para.20:

“When Parliament enacts a remedy with the clear intention that this should be pursued in place of judicial review, it is appropriate to have regard to the considerations giving rise to that intention. The satisfactory operation of the separation of powers requires that Parliament should leave the judges free to perform their role of maintaining the rule of law but also that in performing that role, the judges should, so far as consistent with the rule of law, have regard to legislative policy.”

In the area with which we are concerned there is a complex system of appeals. Appeal lies from a decision of the Secretary of State to the first tier tribunal. With leave, it may lie from that tribunal to the upper tribunal, to the Court of Appeal and, in some cases, to the Supreme Court. But the exercise of appellants’ rights of appeal is conditional on their remaining in the UK. The process can be lengthy because there are many would-be appellants and many potential tiers of appeal. It is understandable that Parliament should wish to “clear the decks” of appeals by those who have voluntarily left the UK. Unsurprisingly, there has been no argument that s.104(4) conflicts with Article 6 of the Convention.

Mr Malik advanced the brave submission that the absence of a specific provision in the Act ousting judicial review indicated a recognition on the part of Parliament that the court’s jurisdiction in judicial review ran alongside s.104(4) and, in effect, could be relied upon to deal with any hardship which that subsection might seem to cause in any particular case.

I cannot accept that submission. Courts have always viewed ouster clauses with considerable caution, if not hostility, depending on their precise scope. It would be most unusual to find in a statutory appellate scheme an additional explicit ouster clause; Parliament and the courts proceed on the constitutional convention encapsulated in what Lord Phillips said in the passage cited, that is to say that Parliament recognises that the court has an inherent residual jurisdiction in the area of judicial review, which it would only exceptionally seek to circumscribe by an ouster clause, but equally, the courts proceed with caution in an area where there is a statutory scheme of remedies, for the reasons stated. It is wrong, therefore, to approach the absence of an ouster clause as an indication that judicial review is intended by Parliament to be some form of general “back-up” process supplementary to the statutory appellate scheme.

I would leave open the question whether there could ever be any circumstance in which it would be right to allow an applicant to bring a judicial review challenge against an immigration decision in respect of which an appeal was to be treated as abandoned under s.104(4), because that question does not arise for decision in this case. This case is typical of a good number of cases where an applicant leaves the UK while an appeal is pending, and it was for this reason that this case was said by Mr Malik to be one of general importance. In my judgment, to entertain an application to treat the applicant’s abandoned appeal as an application for judicial review would be wrong, because it would undermine the legitimate purpose of s.104(4) and add yet another tier to the already complex tiers of adjudication in immigration and asylum claims.

I am satisfied that the applicant does not come close to showing that this is even potentially a case where there might be a possible ground for grant of permission to apply for judicial review.

I would answer the questions posed as follows. On the first issue, I would hold that the applicant’s application for permission to appeal from the upper tribunal to this court is to be treated as abandoned under s.104(4). In answer to the second question, I would hold that the court should not entertain an application for permission to apply for judicial review of the decision of the upper tribunal, the applicant’s appeal against it having been abandoned under s.104(4).

Mr Malik’s final submission was that if we came to those conclusions, we should nevertheless grant permission to appeal from the decision of the upper tribunal but dismiss the appeal for want for jurisdiction, and/or grant permission to apply for judicial review of the decision of the upper tribunal and dismiss the application. The purpose would be to enable the applicant to try to persuade the Supreme Court to review the matter.

On the first point, having concluded that the application for permission to appeal has been abandoned, I do not see what jurisdiction we would have to grant it. However, I am conscious that our decision is one which will or may affect a good number of cases, and that I have reached a different view from those expressed obiter but in reserved judgments, by other members of this court.

In the circumstances, I would propose that the order of this court is expressed in the form of a declaration that the applicant’s application for permission to appeal to this court from the judgment of the upper tribunal is to be treated as abandoned under s.104(4). That would enable the applicant to make an application to the Supreme Court for permission to appeal. I do not wish to imply that I think that the case merits consideration by the Supreme Court. I would refuse permission to appeal, not only because that is the usual practice of this court, but because I would not myself regard it as merited in this case. It would also, incidentally, enable the applicant to seek to challenge the decision of this court in LB (Jamaica).

On the second matter, I do not think that it would be right to grant the application for permission to apply for judicial review, only then to dismiss it.

I agree.