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

The claimant seeks judicial review of three related decisions of the defendant, one dated 12 September 2008 and two dated 7 December 2009. He contends that these decisions are unlawful because their effect has been to wrongfully deny him the status of a refugee and to the grant of asylum by way of leave to remain in the United Kingdom for an initial five-year period. This is, currently, the usual period that a refugee is initially granted by way of leave to remain following a decision in his favour that he is to be granted asylum as a refugee. The claimant also contends that he has to date, unlawfully, only been granted limited discretionary leave to remain in the United Kingdom on the basis that he has been refused refugee status because of the operation of article 33(2) of the Refugee Convention and section 72 of the Nationality, Immigration and Asylum Act 2002 (“NIAA”) but his immediate removal from the United Kingdom cannot take place because a removal would infringe his articles 3 and 8 rights.

For the claimant, it is also contended that there is a significant advantage for him to be granted asylum as a refugee with a consequent five-year initial grant of leave to remain. It is contended, in particular, that he could not otherwise obtain an initial grant of leave to remain for as long a period as five years, that he will be able to apply for indefinite leave to remain sooner and that he will be at significantly less risk of ever being removed.

The defendant contends that these three decisions were lawful and that, in any event, the claimant is not entitled to a remedy since he already has an alternative suitable and available remedy by way of an outstanding appeal to the AIT from the defendant’s decision dated 7 December 2009 that he is not entitled to refugee status or to the grant of asylum as a refugee.

The claimant responds to the suggestion that he has a suitable alternative remedy by contending that there is no outstanding relevant application by him or effective decision of the claimant that can be made the subject of an appealable decision to the AIT, that he should not have to appeal an issue that has already been conclusively determined in his favour and that he could not, in any event, gain entire satisfaction or a complete remedy from a successful appeal to the AIT even if he has available to him an appealable decision and he succeeds in that appeal.

The claimant is a national of Uganda and is now aged 32. He was born on 10 April 1978 in Cape Town, South Africa and was brought up in Uganda until he fled that country in 1999, arriving in the United Kingdom on 19 August 1999 on a false passport. He had discovered that he was a homosexual at secondary school and, from then on, he was disowned by his parents and was subjected to being bullied and beaten, lengthy periods of unauthorised detention in prison, ill-treatment, being raped by other prisoners and to his rented house being burnt down. This repeated persecution spanned several years and arose from his association with a group of homosexuals and lesbians who campaigned for equal treatment for gay people and from his relationship over a two-year period with a much older male American citizen. This treatment led to his decision to escape from both detention and Uganda and to make his way to the United Kingdom to claim asylum having obtained a plane ticket and a false passport for this purpose.

The claimant claimed asylum on 22 August 1999 on the basis that he was a practising homosexual and that he would be persecuted if he was returned to Uganda. The application was refused by the defendant and, on appeal, by the Adjudicator who accepted the claimant’s evidence but concluded, on all the evidence then available, that if the claimant was discrete in engaging in homosexual activity once he had returned to Uganda, he would not come to the adverse attention of the authorities or be at risk of being persecuted or harmed. The claimant appealed to the Asylum and Immigration Tribunal (“AIT”) who dismissed his appeal on 22 March 2005. The claimant was not present or represented at this hearing and he subsequently claimed that the appeal hearing took place without his knowing the date on which it was to take place. The AIT endorsed the decision of the Adjudicator and also found that if the claimant in fact came to the attention of the authorities in Uganda, he would be able safely to move and live elsewhere.

In January 2005, before the AIT had heard and decided the claimant’s appeal, he applied for leave to remain in the United Kingdom, basing that application on his established homosexual relationship with a male who had been granted asylum status in May 2002. However, that male informed the Home Office in October 2005 that the relationship had broken down and, in consequence, the claimant’s application was refused by the defendant soon afterwards.

The claimant was employed for six years and, latterly, as a health care assistant helping to look after male patients at Queen Mary’s Hospital. In October and November 2004, the claimant committed four offences of sexual assault on male patients in his care. He pleaded guilty to those offences under section 3 of the Sexual Offences Act 2003 on 4 November 2005 and was sentenced to thirty months imprisonment. These offences were described by the sentencing judge as involving “brief touching of the genitals”. In sentencing him, the sentencing judge took account of the claimant’s lack of any previous convictions, his otherwise unblemished work record and his conscientious and dedicated work as a care worker. The judge also stated that the claimant had taken inexcusable advantage of his position for reasons of sexual gratification in circumstances amounting to a serious breach of trust.

On 13 February 2006, the defendant wrote to the claimant advising him of his liability to be deported and seeking reasons why he should not be deported in the light of his convictions for sexual assault. The claimant eventually responded to this letter in a letter received by the defendant on 31 July 2006. In that letter, the claimant stated that he wanted to be returned to Uganda as soon as possible under the Early Removal Scheme. This wish arose because his mother had been resident until recently in the United Kingdom but was dying of AIDS and she had returned to Uganda because she wished to die there. The claimant stated that he wished to return to be with her but he also stated that if he could not be deported in the near future, he would no longer wish to be deported because his mother would be dead by the time he arrived in Uganda. At the time he wrote this letter, he was suicidal, suffering from hallucinations and nightmares and with a constant feeling that he wanted to die.

During his sentence, the claimant started to suffer from mental health problems, hallucinations and feelings of suicide and, on 13 September 2006, he was transferred to Queen Elizabeth Hospital from HMP Albany under sections 47 and 49 of the Mental Health Act 1983. He was later diagnosed as suffering from complex PTSD together with an emotionally unstable personality disorder as a result of the abuse and traumatic events that he had experienced as a result of the sexual abuse and the subsequent physical and emotional abuse that he had suffered in Uganda. He then underwent a prolonged course of drug treatment and psychological therapy in the Queen Elizabeth, Woolwich and Chase Farm Hospitals.

On 11 January 2007, not long before his discharge from hospital, the claimant was notified by a letter from the defendant that, in the light of the seriousness of his criminal offences, his removal from the United Kingdom was necessary for the prevention of disorder and for the protection of health and morals. The letter considered whether, if the claimant’s deportation took place, it would cause the United Kingdom to be in breach of the claimant’s article 8 human rights. It carefully balanced his personal and domestic circumstances against the seriousness of his crimes and the need to protect the wider community. It concluded that it was appropriate to deport him to Uganda. The claimant was also served with a decision to make a deportation order (“the deportation decision”) with this letter. On receiving this deportation decision letter, the claimant served a notice of appeal dated 17 January 2007 on the AIT. The pro forma appeal notice was filled in by the claimant to which was attached grounds that had been settled by a representative of the Joint Council for the Welfare of Immigrants (“JCWI”) who the claimant had recently consulted. There were three grounds of appeal: that the decision was not in conformity with the Immigration Rules because no balancing exercise had been undertaken that balanced his risk to the public against his risk of being ill-treated if he were to be returned to Uganda; that his deportation would be incompatible with his ECHR rights; and that his deportation would breach his Refugee Convention rights. Reference was made to recent material that indicated that the claimant’s name had recently been published in an anti-gay paper published in Uganda that he was still wanted by the authorities for his homosexual activities. There was also evidence that publication in this way of other names had led to those homosexuals suffering significant abuse.

The JCWI wrote a long letter to the defendant dated 1 February 2007. This letter stated that it was making what it claimed was a fresh claim for “asylum and/or human rights”. The letter requested the defendant to revoke the deportation order made against the claimant in the light of this claim. The letter summarised what it said was fresh evidence of the claimant’s very significant risk of being targeted and ill-treated if he was to be deported to Uganda. This evidence was also said to highlight errors in findings contained in the original AIT decision to the effect that the claimant was unlikely to come to the attention of the authorities if he returned to Uganda, that he could avoid trouble if he was discrete in his homosexual activities and that he would be able to relocate to safe areas in Uganda if he was subjected to threats or to other indications of his being a target of those determined to harm him. This claim was dismissed as a fresh claim by the defendant in a letter dated 16 February 2007 on the grounds that much of the claim raised matters that had been dealt with by the original AIT decision and that the remainder, although new material, if taken with the earlier material, did not create a realistic prospect of success.

The AIT heard the claimant’s appeal on 2 April 2007 and promulgated its decision dated 6 April 2007 on 27 April 2007. The decision first dealt with a procedural ruling that the AIT had made at the outset of the hearing. This ruling was concerned with an application by the defendant to be permitted to rely on section 72 of the NIAA in order to oppose the claimant’s claimed entitlement to the protection of the Refugee Convention. This application was rejected (Footnote: ¹).

The AIT’s substantive decision set out the five separate but related issues that arose for determination in the appeal. These were, essentially, the five separate grounds relied on by the claimant to support his contention that the deportation order should be withdrawn. The decision starts as follows:

“1.

This is an appeal … against a decision of the [defendant] served on the [claimant] on 12^th January 2007 to make a deportation order under section 3(5) of the Immigration Act 1971 with a view to his return to Ghana (sic) (Footnote: ²) of which country he is a national. … The [defendant] had written to the [claimant] on 5^th February 2006 seeking reasons why the [claimant] should not be deported following convictions for sexual assault. Thereafter representations were made on the [claimant’s] behalf following which it was concluded that the [claimant’s] deportation would be “conducive to the public good”. Notice of appeal together with grounds was submitted by the [claimant] on 17^th January 2007 claiming that the refusal decision was not in accordance with the Immigration Rules, that the decision was unlawful because it was incompatible with his rights under the European Convention on Human Rights and further that removal would breach his rights under the 1951 Convention.”

The decision then described the grounds. These were, in summary, whether:

The decision made a number of findings, in particular that the claimant was credible, that he fell into a “particular social group” for the purposes of the Refugee Convention, that he had been persecuted when he had lived in Uganda, that there was a real risk of his being further persecuted if he was introduced back into Uganda, that his claim under the Refugee Convention succeeded on the same basis as his article 3 claim and that his article 8 claim succeeded because it would not be proportionate to remove him to Uganda since the scales came down in his favour because his return to Uganda would seriously breach his fundamental right to a private life. The decision concluded that its findings in respect of the claimant’s asylum and articles 3 and 8 claims trumped the deportation notice. The appeal was accordingly allowed on asylum and human rights grounds and, by inference, by the correct application of paragraph 364 of the Immigration Rules.

The defendant applied for a reconsideration of this decision on the ground that the decision, in allowing the appeal, failed to consider section 72 of the NIAA and paragraph 364 of the Immigration Rules. The application stated, in particular, that:

“… in view of the nature of the offences and the length of sentence handed down, the Tribunal should have given consideration to the issue of section 72 and agreed to it being raised at the hearing. … For the above reasons … the Tribunal erred in considering the asylum claim. They found that human rights grounds stands and falls with the asylum claim. No separate claim was made on human rights grounds.”

The Senior Immigration Judge ordered reconsideration. because:

“1.

It is arguable that the Tribunal erred in refusing to entertain the [defendant’s] submissions on section 72 of the NIAA 2002 for the reasons given at paragraph 9 of the decision. The question of whether a certificate had been issued under subsection (9) was arguably irrelevant to the operation of the remainder of the section. The facts of the appellant’s conviction were already known and the issue of whether he would be likely to re-offend was relevant to the paragraph 364 question.

2.

There is a real possibility that the Tribunal would decide the appeal differently on reconsideration.

3.

Reconsideration is ordered on the above grounds.”

On 18 October 2007, a few days before the reconsideration hearing was to take place, the Chief Caseworker of the Criminal Casework Directorate of the United Kingdom Border and Immigration Agency (“UKBA”) emailed the caseworker concerned with the claimant’s case and recommended that the defendant should “concede the case”. This view of the Chief Caseworker was concurred with by the SEO in the Criminal Casework Directorate. In consequence, the defendant withdrew the deportation decision and notified the claimant and the clerk to the AIT on 18 October 2007 that the claimant’s case had been reviewed and it had been decided that it was not appropriate to proceed with deportation action. Accordingly, the letter continued, the deportation decision of 11 January 2007 had been withdrawn. The letter continued:

“However, should [the claimant] come to adverse notice in the future, the [defendant] will be obliged to give further consideration to the question of whether he should be deported.”

Since the deportation decision had been withdrawn, the AIT directed that the appeal should be withdrawn under rule 17(2) of the AIT (Procedure) Rules 2005 (“the Procedure Rules”). This withdrawal was required by rule 17(2) since the withdrawal of the deportation decision meant that there was no longer an appealable decision in existence.

The defendant informed the claimant on 26 February 2008 that since “we have conceded deportation action against you”, the claimant would be granted six months discretionary leave to remain. This was granted on 7 March 2008. On 1 August 2008, the Immigration Advisory Service (“IAS”), who had by then been instructed to represent the claimant, wrote to the defendant and stated that the effect of the defendant’s withdrawal of the deportation notice had been that the defendant failed to recognise the claimant as a refugee or to grant him leave appropriate to the grant of that status and also deprived him of the opportunity to argue his position with regard to section 72 of the NIAA. This was demonstrated by the claimant being granted six months discretionary leave to remain rather than five years’ leave to remain as a refugee. The letter therefore requested the defendant to extend the claimant’s leave by granting a five-year leave as a recognised refugee. This letter was not responded to and the defendant, on 12 September 2008, granted a further twelve months extension of his discretionary leave in the same form as the first grant. Judicial review proceedings were issued on 5 December 2008

An application for the grant of refugee status was again made by the IAS on 2 September 2009 coupled with a precautionary application for a further extension of discretionary leave. The defendant wrote in reply on 7 October 2009 seeking any reasons contended for by the claimant as to why the crimes he had been convicted of were not particularly serious and whether there were any reasons as to why he did not pose a danger to the community in the United Kingdom, an enquiry addressed by reference to section 72 of the NIAA. The IAS responded by reiterating its view that the claimant was entitled to recognition as a refugee on the grounds that the AIT’s decision of 6 April still stood. In consequence, the solicitors stated that they would not respond to the request at that stage.

A third extension of discretionary six months was granted on 7 December 2009. On the same day, the defendant issued a decision letter which stated that it was a response to the claimant’s application for asylum dated 1 February 2007 (the “fresh claim” application letter). This application was refused by the letter on the grounds that the claimant had committed a particularly serious crime and that his continued presence in the United Kingdom would constitute a danger to the community. The claimant had not, despite being invited to do so, submitted any rebuttal of the statutory presumptions contained in section 72(6) of NIAA. The defendant concluded that the claimant’s crimes were particularly serious and refused the application and, also, concluded that he did not qualify for humanitarian protection because he was excluded from such a grant by paragraph 339C of the Immigration Rules since he had committed a serious crime which showed that he was a danger to the community.

The decision letter also responded to the claimant’s solicitor’s contention that the asylum application had already been decided in his favour on 6 April 2007 as follows:

“… reconsideration of the AIT’s decision of 6 April 2007 was ordered on 15 May 2007. Before the reconsideration appeal was heard, the [defendant] withdrew the decision to make a deportation order which included the decision to refuse your asylum application. It is therefore the [defendant’s] view that your asylum application reverted to being outstanding and your representative’s view is incorrect.”

The following issues now arise for determination:

What was the effect of the defendant’s withdrawal of the deportation decision dated 11 January 2007?

The defendant’s decision dated 11 January 2007 was made as a consequence of the claimant’s convictions for sexual assault. At the time of those convictions and of the deportation decision, the claimant was not subject to leave to remain in the United Kingdom. He had entered the United Kingdom on 19 August 1999 on a false or misappropriated passport and had applied unsuccessfully for asylum. His appeal rights flowing from his asylum application were finally exhausted on 12 April 2005. However, he had, in January 2005, applied for leave to remain in the United Kingdom, basing that application on his established homosexual relationship with a male and that refusal was not appealed. By the time that the claimant’s appeal rights flowing from that application had been exhausted in November 2005, the claimant was in prison. He had been convicted and sentenced on 4 November 2005 for four offences of the sexual assault of males that had occurred in October and November 2004. The sentencing judge made no recommendation for deportation. On 13 February 2006, the defendant informed the claimant of his liability to be deported as a result of those convictions and was invited to give his comments as to why he should not be deported. The only comments that he submitted were those contained in his letter that was received by the defendant on 31 July 2006. These comments, submitted when the claimant was under considerable emotional and mental pressure, were to the effect that he wished to return in the near future to Uganda but only if this occurred in the near future. Otherwise, he wished to remain in the United Kingdom.

The defendant’s decision to deport the claimant was made by an order that was made pursuant to section 3(5)(a) of the Immigration Act 1971 as amended by the Immigration and Asylum Act 1999. That amended provision reads as follows:

“A person who is not a British citizen is liable to deportation from the United Kingdom if- (a) the Secretary of State deems his deportation to be conducive to the public good”.

This ground of deporting a foreign national was, prior to the United Kingdom Borders Act 2007 coming into force, principally used to deport those who had been convicted of a crime. The starting point for considering deportation of a convicted foreign national on this ground was a twelve-month sentence of imprisonment which could be, as in the claimant’s case, an aggregate of more than one sentence where the sentences had occurred in the previous five years (Footnote: ³). The deportation notice stated that the defendant, in reaching the decision to serve a deportation notice on the claimant, had taken into account paragraphs 364 and 380 of the Immigration Rules, the material provisions of which provide that:

“364.

Subject to paragraph 380, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case … The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. … .

380.

A deportation order will not be made against any person if his removal in pursuance of the order would be contrary to the United Kingdom’s obligations under the Convention and Protocol relating to the status of Refugees or the Human Rights Convention.”

The deportation decision also stated that the decision-maker had taken into account the Secretary of State’s view that offences involving sex were regarded as being particularly serious, the sentencing court’s view of the seriousness of the claimant’s offences, as reflected in the sentence imposed, and the effect of the type of crime involved on the wider community. Account was also taken of the sentencing judge’s comments which had been to the effect that the claimant had taken inexcusable advantage of his position for reasons of sexual gratification in a way that had represented a most serious breach of the trust that those patients had placed in him. Account was also taken of the legitimate aim of the United Kingdom to ensure the prevention of disorder and crime. All the claimant’s personal and domestic circumstances were also taken into account. The defendant’s deportation decision concluded that, in the light of the claimant’s criminal offences, his removal from the United Kingdom was necessary in a democratic society for the prevention of disorder and crime and for the protection of health and morals.

The claimant was entitled to appeal that decision as a result of section 82(2)(j) of the NIAA. The grounds he relied on were those provided for in sections 84(1)(a), (c), (d) and (g) of the NIAA. These grounds are that the decision was not in accordance with immigration rules and was unlawful because it was incompatible with the claimant’s rights under the European Convention of Human Rights, in the claimant’s case being the rights protected by articles 3 and 8, and under the Refugee Convention. Furthermore, the appeal raised the additional statutory ground as to whether the decision was otherwise not in accordance with the law. The AIT decision set out the issues raised by the claimant’s appeal. These were whether the deportation decision was in accordance with paragraphs 364 and 339C of the Immigration Rules, the Refugee Convention and articles 2, 3 and 8 of the ECHR. The AIT subsequently confirmed that the claimant’s appeal included a claim for Humanitarian Protection provided for by the Qualification Directive and by paragraph 339C of the Immigration Rules. However, Humanitarian Protection may only be claimed or granted where an applicant has applied for asylum but does not qualify as a refugee. In such circumstances, a claimant is entitled to be granted humanitarian protection if he would face a real risk of suffering serious harm following his return to his home country and would be unable to avail himself of protection.

In the claimant’s particular situation, and in the light of the grounds of appeal that he had advanced, the nature and seriousness of the claimant’s criminal convictions and the risk that he continued to pose to the public were directly relevant to the core issues that the AIT had to decide in each of the following five respects:

The claimant was, therefore, raising five grounds in his appeal for contending that the deportation notice should not have been issued: on asylum or refugee or humanitarian grounds, under articles 3 and 8 and on the ground that paragraph 364 had been misapplied. Each of the grounds, save for the article 3 ground, required the AIT to consider whether the seriousness of the crimes committed by the claimant, taken with his current risk of harm, precluded him from relying on that ground. Article 3, which protects the claimant from being deported where there was a risk of him being subjected to torture or to inhuman or degrading treatment, is an absolute right and is not qualified where the claimant seeking to rely on article 3 has committed a serious criminal offence in the United Kingdom.

The defendant’s deportation decision dated 11 January 2007 did not discuss or consider whether or not the claimant was entitled to claim the benefit of the Refugee Convention or was excluded from its terms. It should have done because the claimant had informed the defendant in July 2006 that he did not want to be deported unless he could travel to Uganda immediately to see his mother who was terminally ill. Since the defendant was deciding whether to deport the claimant six months later on the grounds that his convictions made his deportation conducive to the public good, the claimant should have been taken to be objecting to that proposed deportation, to be claiming the benefit of the Refugee Convention and to the non-application of article 33(2). Moreover, given the claimant’s known circumstances, the defendant had an obligation under the Refugee Convention to consider whether the claimant qualified for protection as a refugee under the Refugee Convention even though that issue had been considered and decided adversely to him by the first AIT decision in 2004 and the appeal from that decision in March 2005. That obligation on the defendant was a continuing one and the claimant’s circumstances and his risk of being persecuted if returned had changed since the AIT appeal, if only by the claimant’s convictions for sexual assaults on male patients.

The claimant immediately brought the defendant’s error in not considering the claimant’s entitlement to refugee status issue to the defendant’s attention. He served a notice of appeal dated 17 January 2007 which included as one of its grounds a claim that he was entitled to asylum as a refugee. Although this notice was served on the AIT, the AIT would have immediately served a copy of it on the defendant. The claimant’s solicitor also made, on 1 February 2007, what was described as a fresh claim for asylum as a refugee. This claim was rejected by the defendant in a second decision dated 16 February 2007 on the grounds that there had been no material change of circumstances since the first AIT decision. The rejection decision did not raise or address the section 72 issue. It follows that the claimant had applied for asylum as a refugee before the deportation decision had been appealed to the AIT, the defendant had rejected that application and the rejection was included in the appeal to the AIT. In short, one of the reasons why the claimant was contending that he should not be deported was that he was entitled to refugee protection.

The Presenting Officer, who represented the defendant at the AIT appeal hearing, applied at the outset of the hearing for leave to argue that the claimant should be excluded from the protection of the Refugee Convention under section 72 of the NIAA.

This ruling was made against the background provided by Article 33(2) of the Refugee Convention and section 72, the relevant provisions of which are as follows:

Article 33(2) of the Refugee Convention

“2.

The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as being a danger to the security of the country in which he is, or who, having been convicted of a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

Section 72

“72Serious criminal

(1)

This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection).

(2)

A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is—

(a)

convicted in the United Kingdom of an offence, and

(b)

sentenced to a period of imprisonment of at least two years.

…

(6)

A presumption under subsection (2) … that a person constitutes a danger to the community is rebuttable by that person.

…

(9)

Subsection (10) applies where—

(a)

a person appeals under section 82 … of this Act … wholly or partly on the ground that to remove him from or to require him to leave the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention, and

(b)

the Secretary of State issues a certificate that presumptions under subsection (2) … apply to the person (subject to rebuttal).

(10)

The adjudicator, Tribunal or Commission hearing the appeal—

(a)

must begin substantive deliberation on the appeal by considering the certificate, and

(b)

if in agreement that presumptions under subsection (2), (3) or (4) apply (having given the appellant an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the ground specified in subsection (9)(a).

(11)

For the purposes of this section—

(a)

“the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, and

(b)

a reference to a person who is sentenced to a period of imprisonment of at least two years—

(i)

does not include a reference to a person who receives a suspended sentence (unless at least two years of the sentence are not suspended),

(ii)

includes a reference to a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), and

(iii)

includes a reference to a person who is sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period (provided that it may last for two years).”

In EN (Serbia) v SSHD & Others, Burnton LJ stated that section 72 is to be interpreted as creating rebuttable presumptions in relation to both of the relevant requirements of Article 33(2) of the Refugee Convention:

“i.e. in relation to the seriousness of the crime and in relation to danger to the community and I would reject the Secretary of State’s submission to the contrary.” (Footnote: ⁴)

Sections 72(9) and (10) are purely procedural provisions. Their effect was explained by Burnton LJ in SSHD v TB (Jamaica) (Footnote: ⁵)in this way:

“28.

In my judgment, to a significant extent the Secretary of State's arguments have placed too much importance on section 72. It has always been open to the Secretary of State to contend that an applicant for asylum was excluded from the protection afforded by Article 33.1 because he had been convicted of a particularly serious crime and constituted a danger to the community of this country. Subsections (2) and (3) in effect define a crime that has been the subject of a sentence of imprisonment of at least 2 years as particularly serious, in the case of subsection (3) with the added requirement where the conviction is a foreign one, that the crime would have been punishable by imprisonment of at least 2 years if there had been a conviction for a similar offence in this country. Subsection (4) authorises the Secretary of State to define offences as particularly serious and to certify that a foreign conviction is for an offence similar to such an offence. Subsections (2), (3) and (4) create a rebuttable presumption (see subsection (6)), where the applicant has committed an offence to which they apply, that he constitutes a danger to the community. Subsections (9) and (10) make provision for certification and procedure before the Tribunal.

29.

Given the general wording of subsection (1), I accept that the presumptions are to be applied generally, both by the Secretary of State when making a decision on an application for asylum and by the Tribunal on the hearing of an appeal. (For present purposes, it is unnecessary to consider proceedings before the Special Immigration Appeals Tribunal separately.) In my judgment, once the facts giving rise to the statutory presumptions have been established, it would be an error of law for an Immigration Judge to fail to apply a presumption required by the section, irrespective of whether or not the Secretary of State had issued a certificate under subsection (9)(b). Indeed, Mr Jay accepted that there has been no statutory certificate in this case. The only effect of a certificate is to require the Tribunal to address the certificate and any issue as to the rebuttal of the presumption of dangerousness at the beginning of the hearing of the appeal. I assume that the certificate is of greater value where the conviction relied upon is outside the United Kingdom. An appellant may seek to displace the certificate by showing that he has not in fact been convicted of a relevant offence or to rebut the presumption of dangerousness by establishing that he does not in fact constitute a danger to the community.

30.

This demonstrates that it was open to the Secretary of State to seek to establish that Article 33(2) applied to TB on the hearing of his appeal; and it was open to the Secretary of State to seek to appeal the determination of the Immigration Judge on the ground that in failing to apply the statutory presumption she erred in law. … .”(emphasis added).

Effect is given to section 72 by rule 334 of the Immigration Rules which provides that an asylum application will be granted in the United Kingdom if the Secretary of State (or the AIT on an appeal raising the issue of an appellant’s entitlement to asylum as a refugee) is satisfied that the applicant does not, having been convicted by a final judgment of a particularly serious crime, constitute a danger to the community of the United Kingdom. Rule 336 provides that an application which does not meet the criteria set out in Rule 334 will be refused and the reasons in fact and law shall be stated in the decision.

The effect of these provisions may be summarised as follows:

The Presenting Officer, on behalf of the defendant, made an application to the Tribunal at the outset of the hearing which the AIT’s ruling, in dismissing the application, described in these terms:

“9.

At the outset of this appeal and before evidence was taken the Presenting Officer sought leave to argue that the [claimant] should be excluded from the protection of the Refugee Convention only under Section 72 of the Nationality, Immigration and Asylum Act 2002 on the grounds that he had been convicted of a serious crime and would therefore be presumed to constitute a danger to the community: the serious crime was the commission of sexual offences with a term of imprisonment of at least two years. [The Presenting Officer] conceded that though she had spoken to counsel on the morning of the hearing, no prior notice had been given of that intention on the [defendant’s] part. It was her submission nevertheless that nothing prevented the court taking account of provisions of section 72 and giving consideration in the light of all the circumstances and facts to the provisions of section 72 as it related to this appellant. The application was opposed by counsel [for the claimant, Mr R Khubber who also represented him at the judicial review hearing] who contended that the raising of such an issue so late in the day amounted to unfairness and in any event the [defendant] had not complied with the procedures required under sub-section 9(b) of section 72 which required issue of a certificate and thereafter the opportunity to rebut the presumption of being a danger to the community.”

The application appears to have been made on the following basis:

It should be noted that both issues, namely whether the crimes were particularly serious and whether the claimant was a danger to the public, were already before the AIT and were requiring a decision by virtue of the appeal being concerned with whether a deportation notice should have been served in conformity with the Immigration Rules (the paragraph 364 issue), whether the deportation was conducive to the public good (the section 72 issue), whether the claimant’s article 8 rights were infringed by the notice and whether, if the claimant was not entitled to asylum, he was entitled to Humanitarian Protection (the Humanitarian Protection issue). Each of these issues required the AIT to consider the seriousness of the claimant’s crimes and his dangerousness. Furthermore, the issues were already before the AIT since the AIT had to consider whether the claimant qualified for refugee protection in the appeal from the defendant’s rejection of the claimant’s asylum July 2006 and February 2007 applications and as part of its consideration of paragraph 364 of the Immigration Rules.

The AIT’s decision in relation to that application was as follows:

“Having heard argument by both sides we decided that such late notice gave rise to a fundamental issue of fairness and that it would be grossly unfair to the [claimant] to accede to the Presenting Officer’s request and that in any event the [defendant] had not complied with what was required of him procedurally so on that ground also he could not place any reliance on section 72 in the way sought.” (emphasis added)

The procedural ruling was, therefore, to the effect that the hearing would proceed but the defendant could not rely on section 72 in the way sought. This ruling was reached on the basis of what can now be seen to have been a series of errors of law which arose from the erroneous approach to section 72 taken by the Presenting Officer at the hearing and adopted by the AIT. These errors were:

However, despite the errors, the ruling actually made by the AIT was limited in scope. This was that the defendant could not rely on section 72 in the way sought, i.e. on the basis that a section 72(9) certificate had been served. Thus, strictly speaking, all that was excluded was the procedure whereby the rebuttal of the presumptions had to be dealt with and ruled on first before any other issues were dealt with. The failure to deal with section 72 as part of the hearing of the appeal was a failure that was directly attributable to the way that the defendant and the Presenting Officer presented the defendant’s case at the hearing and was only marginally attributable to the AIT’s error of law in shutting out reliance on a section 72(9) certificate. Section 72 issues were already before the AIT, permission was not required to address those issues, the defendant should in any case already have addressed them in the two decisions under appeal dated 11 January 2007 and 16 February 2007 and these issues arose for determination in relation to at least three other issues that had to be decided. It follows that the erroneous procedural ruling did not have the direct effect of precluding section 72 issues being raised in connection with the claimant’s asylum application.

The AIT fully considered the evidence and the submissions of both representatives. The AIT accepted the submissions on behalf of the claimant that, on the basis of significant evidence not available to the adjudicator and to the AIT on appeal that dealt with the claimant’s first asylum application, the claimant would, if returned to Uganda, face a real risk of persecutory conduct or behaviour by the authorities or non-state agents from whom there would be no sufficiency of protection. On that basis, the claimant should be granted asylum taking into account the change in the law and the current objective background circumstances. It followed that the claimant’s asylum claim should succeed and that the article 3 claim stood with that finding and should also succeed. The article 8 claim principally revolved around the claimant’s private life in terms of sexuality and disproportionate breach that would result from removal. The AIT found that it would be disproportionate to remove the claimant and if removed, his return to Uganda would seriously breach his fundamental right to a private life. It followed that the appeal was allowed on asylum and articles 3 and 8 grounds and, by necessary implication, on the ground that the deportation decision misapplied paragraph 364.

What is significant is that neither representative made any submissions to the AIT about the nature of the claimant’s convictions nor his dangerousness or risk of harming other members of the community in the United Kingdom if allowed to remain in relation to any issue arising on the appeal and the AIT, other than providing factual details of the offences, the convictions and the sentence, make no findings or any reference to these matters in relation to any of their findings or conclusions. It would appear that the entire appeal was conducted without any express reference to these matters. However, the convictions were clearly in everyone’s mind, their nature and effect gave rise to the appeal seeking to set aside the deportation notice and a balancing exercise that involved weighing the convictions and the claimant’s dangerousness in the scales with all other relevant factors had to be undertaken for the article 8 issue, the paragraph 364 issue and the overall issue of deportation in addition to the refugee issue. That exercise is differently worded in each of the balancing exercises involved but not significantly so. A finding that the claimant’s convictions and dangerousness were not such as to make it proportionate to deport him in relation to his article 8 rights or not to disapply the presumption in favour of deportation would equally apply to a decision to disapply the article 33(2) presumptions and paragraph 334(iv). This conclusion accords with the view of Burnton LJ in TB (Jamaica) where he stated:

“ Moreover, the Immigration Judge considered, as she had to, whether TB's criminal conviction justified interfering with his Article 8 rights. She held that it did not. Her findings, set out in paragraphs 101 to 104 of her determination, are inconsistent with his constituting a danger to the community. It is evident, therefore, that if section 72 and Article 3.2 had been raised before her, she would have held that the statutory presumption of dangerousness had been rebutted.”

It may be that the AIT did not explicitly address these issues because of its ruling that section 72 could not be referred to or because the Presenting Officer was under a misapprehension as to the ambit of the appeal. However, the decision is unequivocal that the claimant is entitled to Refugee Convention protection, articles 3 and 8 protection and protection as provided for by paragraph 364. These findings collectively lead to the conclusion that the deportation notice should be set aside. All the findings, save those relating to article 3, are based on the same premise, that the convictions are insufficiently serious and the levels of the claimant’s dangerousness insufficiently high to preclude the deportation notice from being acted upon. If it is contended that no such finding or premise was made or relied on in relation to the Refugee Convention finding, the same contention must equally apply to the findings relating to article 8 and paragraph 364. Furthermore, it is not possible to pick and chose between the findings of the decision. They are all equally binding or non-binding. It was suggested on behalf of the Secretary of State that he remained bound by, or did not seek to challenge, the AIT’s findings in relation to article 8 and in relation to the finding that the claimant is a refugee but that he might nonetheless challenge the implicit finding that the paragraph 334(iv) test was satisfied.

The decision, or determination as it is described in the Procedure Rules, of the AIT was sent to the parties within ten days of the hearing as required by rule 22. The AIT did not exercise its discretion to provide a direction. Section 87 of the NIAA provides that:

“(1)

If the Tribunal allows an appeal under section 82 it may give a direction for the purpose of giving effect to its decision.

(1)

A person responsible for making an immigration decision shall act in accordance with any relevant direction under subsection (1).

(2)

But a direction under this section shall not have effect while-

(a)

an application under section 103A(1) … could be made or is awaiting determination;

(b)

reconsideration of an appeal has been ordered under section 103A(1) and has not been completed, …”.

Where no direction has been given, the decision of the AIT relating to the appeal is final and binding on the parties from the moment it is published to them. In R (on the application of Boafo) v SSHD (Footnote: ⁹), Auld LJ stated as follows:

“26.

On the question whether, as a matter of law, the Secretary of State was entitled to disregard the adjudicator’s determination and to consider the matter afresh because it was not accompanied by directions, I take the first two propositions of the judge as starting points. First, this appellate machinery is one of review, not rehearing, and both an adjudicator and the Tribunal are normally bound to determine appeals on the facts as they were at the date of the decision under challenge. And, secondly, an unappealed decision of an adjudicator is binding on the parties. However, I disagree with the judge in his decision that an adjudicator’s decision without directions is, by reason of their absence, not binding on the Secretary of State and that he may, in consequence, consider the matter afresh in the light of new information.

27.

As a matter of construction of s 19(3) and of the statutory machinery of which it forms part, the absence of directions from the adjudicator does not, in my view, deprive his determination of binding force in cases such as those of indefinite leave to remain which are concerned with the validity of a decision affecting immigration status. … Any other approach could render the machinery of appeal to the Tribunal provided by s 20 of the 1971 Act largely redundant in the case of such appeals allowed by adjudicators not accompanied by directions.”

This case was concerned with a previous regime which involved appeals to the adjudicator and a second tier appeal to the Tribunal. However, that regime was similar in relation to the discretionary power of the adjudicator and the AIT under the present appeal regime to issue directions. Since the relevant statutes do not provide any express provision as to the binding effect of a decision where a direction has not been given in a case such as this which affects status and is directed to the lawfulness of particular decisions, the reasoning of Auld LJ is directly applicable. Paragraph 339Q(i) provides that the defendant will issue to a person granted asylum in the United Kingdom a United Kingdom Residence Permit as soon as possible after the grant of asylum. One of the issues in this case was whether the claimant is a refugee and, on that issue, the decision stated unequivocally: “We allow this appeal on asylum grounds.” Thus, from the moment the reconsideration process was completed, the claimant was to be treated as a refugee and was entitled to the grant of a Residence Permit as soon as possible thereafter.

The Senior Immigration Judge ordered a reconsideration under section 103A of the NIAA because he concluded that the AIT may have made a material error in refusing to consider section 72 because there was no section 72(9) certificate, because the question of whether a certificate had been issued under subsection (9) was arguably irrelevant to the operation of the remainder of the section, because the facts of the claimant’s conviction (and although not expressed in his reasons, the fact of the claimant’s dangerousness) were already known and because the issue of whether the claimant would be likely to re-offend was relevant to the paragraph 364 question (Footnote: ¹⁰). The SIJ was also undoubtedly influenced by the defendant’s erroneous assertions in the application for reconsideration document that there were no separate articles 3 and 8 claims before the AIT and that paragraph 364 had not been considered by them. He may also have been influenced by the erroneous assertion of the defendant’s representative that the claimant had not made a refugee asylum claim following the notice of intention to serve a deportation notice. In fact, the claimant had made two such claims, in the grounds of appeal document and in the claim document dated 1 February 2007. Overall, he concluded that there was a real possibility that the tribunal would decide the appeal differently on reconsideration.

The effect of the SIJ’s order dated 17 May 2007 was that there was to be a review of the AIT’s decision. That review, or reconsideration, is of a limited kind as provided for by paragraph 31 of the AIT Procedure Rules:

“31.

Procedure for reconsideration of appeal

“(2)

Where the reconsideration is pursuant to an order under section 103A-

(a)

the Tribunal carrying out the reconsideration must first decide whether the original Tribunal made a material error of law; and

(b)

if it decides that the original Tribunal did not make a material error of law, the Tribunal must order that the original determination shall stand.

Subject to paragraph (2), the Tribunal must substitute a fresh decision to allow or dismiss the appeal.

In the light of these rules, it by no means followed that the tribunal would set aside the first tribunal’s decision. The first decision undoubtedly contained an error of law, namely to shut out the defendant’s ability to rely on section 72. However, it was highly arguable that that error was not material as defined by rule 31(5). The claimant had a finding in his favour that he was entitled to article 3 protection which, on its own, would result in the decision setting aside the deportation order decision being affirmed. Moreover, it was also implicit in the decision that any detailed consideration of the seriousness of the offences and the claimant’s dangerousness levels had already been taken into account, at least in relation to the article 8 claim and the paragraph 364 issue and that there was in reality no prospect of those issues, if re-opened, resulting in a different decision. Equally, the AIT was highly likely to affirm the article 8 and paragraph 364 decisions and, in doing so, dismiss the defendant’s case on the section 72 issue. There was, therefore, a distinct possibility that the AIT would either order the original determination to stand (paragraph 27(2)(b)) or dismiss the appeal. It was very unlikely that the AIT would substitute a fresh decision which set aside the deportation order decision and the finding that the claimant was entitled to rely on the Refugee Convention but maintained the articles 3 and 8 and paragraph 364 findings. This conclusion is at variance with the SIJ’s conclusion in ordering reconsideration but that order was made without it being brought to the SIJ’s attention that paragraph 364 was considered by the AIT, that articles 3 and 8 claims were in play and that the claimant had applied for asylum and refugee relief prior to the hearing of the appeal.

Once the reconsideration order had been made, section 104 of the NIAA is applicable. That provides that:

“104 Pending appeal

The defendant gave detailed consideration, following the obtaining of an order for reconsideration and pending the reconsideration hearing, as to whether he wished to proceed with the reconsideration. This internal consideration led to this email being sent to the case worker at the United Kingdom Borders Agency by her AD Chief Caseworker on 18 October 2007:

“It is arguable whether we can utilise section 72 on the day to remedy previous faults and in my view the main problem is that we have not specifically certified the case. However, all that does is preclude the Judge from allowing the appeal on asylum grounds.

The issue here is that they have found from my reading of the advice found that article 3 applies therefore whether or not we win the reconsideration on s.72 is immaterial if we cannot as seems the case override the original finding of fact on article 3.

In the circumstances, I would be inclined to concede the case.”

The SEO of the Criminal Casework Directorate emailed the case worker soon afterwards to inform her that he concurred.

The reasoning of the AD Chief Caseworker is clear and uncompromising. He advised that the defendant was in difficulty in persuading the AIT to reach a different decision to that reached by the AIT in the initial decision in view of the procedural errors that the defendant had made prior to the original AIT hearing. The errors that were referred to were not identified but they must have included the defendant’s failure to address the section 72 issues until the day of the appeal hearing, to give prior notice of the defendant’s intention to rely on section 72 and to certify under section 72(9) before the hearing. However, the decision-maker concluded that even if those errors could be overcome during the reconsideration hearing, the AIT considering the reconsideration would be unlikely to alter or set aside any part of the AIT decision since the article 3 decision in favour of the claimant would remain intact and could not be overturned. Thus, the defendant decided that the defendant should withdraw from or abandon the reconsideration hearing and “concede the case.”

The phrase used by the decision-maker that the defendant should “concede the case” is a clear reference to the forthcoming reconsideration hearing. The most obvious meaning of this phrase, in that context, was that the defendant would withdraw from, or abandon, its reconsideration application and accept the AIT decision. There were three ways in which the instruction to concede the case could have been implemented:

The caseworker decided to implement the instruction she had received from her Chief Caseworker by withdrawing the original deportation decision. A withdrawal by the defendant of the relevant decision that is the subject of an appeal to the AIT is provided for by rule 17(2) of the Procedure Rules which provides that:

“(1)

An appellant may withdraw an appeal-

(a)

orally, at a hearing; or

(b)

at any time, by filing written notice with the Tribunal.

(2)

An appeal shall be treated as withdrawn if the respondent notifies the Tribunal that the decision … to which the appeal relates has been withdrawn.”

(3)

If an appeal is withdrawn or treated as withdrawn, the Tribunal must serve on the parties a notice that the appeal has been recorded as having been withdrawn.”

The decision to withdraw the deportation decision was taken as a consequence of, and in order to implement, the decision to “concede the case”. The defendant gave no explanation as to why this method of implementing the “concede the case” decision was adopted. The decision to withdraw the deportation notice was itself lawful since rule 17(2) of the Procedure Rules gives the defendant the unqualified unilateral power to withdraw a decision that is the subject of a pending appeal to the AIT. However, once an asylum or immigration decision of the defendant is subject to an AIT appeal and the defendant then withdraws his decision, he may not then act in a way that would subvert the appeal process by leaving the claimant worse off than he would have been had the appeal process been allowed to be concluded.

The action the defendant should have taken following the withdrawal of the deportation order decision

The claimant contended that the defendant should have granted him leave to remain on the basis that he had been granted the status of a refugee protected by the Refugee Convention. This is what he would have been entitled to had the AIT’s decision taken effect soon after the withdrawal of the deportation decision. On that basis, he would have been granted five years leave to remain as a refugee and an equivalent residence permit (Footnote: ¹¹). The claimant also contended that the defendant should not be allowed to circumvent that result by withdrawing the deportation order decision in a way that deprived him of the benefit of the AIT decision or which prevented him from being granted asylum status as a refugee and the leave to remain that goes with such a grant. The defendant contended that the effect of the withdrawal of the deportation notice was to bring to life the outstanding asylum application contained in the claimant’s solicitor’s letter of the 1 February 2007 and that, since the section 72 issue had never been addressed by either the defendant or the AIT, that outstanding application could be decided by reference to the section 72 issue. In the meantime, the claimant should only be granted discretionary leave to remain since his current status was that of a failed asylum seeker with no status other than as one whose asylum application had failed on article 33(2) grounds but who was entitled to article 3 protection.

Following the withdrawal of the deportation decision and the appeal, the caseworker dealt with the claimant in this way:

Once the deportation decision had been withdrawn, the defendant did not inform the claimant what parts of the AIT decision the defendant accepted, that the defendant considered that article 33(2) was applicable to the claimant, that he was considered ineligible for refugee protection, whether or not the defendant accepted that the claimant was entitled to articles 3 and 8 protection and on what basis the claimant would be granted leave to remain with reasons for that decision. Initially, on 18 October 2007, the caseworker wrote to the claimant and stated:

“[The claimant]’s case has been reviewed in the light of all the known circumstances including his continuing mental health issues. It has been concluded that it is not appropriate to proceed with deportation action.

Accordingly the deportation decision of 11 January 2007 has been withdrawn. However, should [the claimant] come to the adverse notice in the future, the Secretary of State will be obliged to give further consideration to the question of whether he should be deported.”

The claimant heard nothing further until 26 February 2008 when the caseworker wrote to the defendant:

“As you are aware, we have conceded deportation action against you. In order for us to grant you 6 months discretionary leave, please provide us with either your original valid passport or 4 passport sized photographs.”

The letter misstated what the defendant had conceded since it was not only deportation but the entire decision of the AIT that had been conceded on 18 October 2007. Moreover, the letter did not explain why only six months’ discretionary leave was being granted nor what recognition, if any, was being given to the AIT’s findings that he was entitled to Refugee Convention and articles 3 and 8 protection.

Nothing further was heard from the defendant until, on 7 March 2008, the caseworker wrote to the claimant informing him that the defendant had:

“decided that [his] discretion should be exercised in your favour and you have been granted limited leave to remain in the United Kingdom for a reason not covered by the Immigration Rules. You have been granted this leave in accordance with the published Home Office Asylum Policy Instruction on Discretionary Leave.”

The relevant policy, which was not explained to the claimant, provided that:

“Exclusion from refugee status

Finally, in the defendant’s decision of 7 December 2009, which belatedly purported to refuse the claimant’s asylum application dated 1 February 2007, the defendant stated:

“Your representatives … [expressed] the view that your asylum appeal was finally determined by the AIT in their client’s favour on 6 April 2007 and that you have no asylum application outstanding. However … before the reconsideration appeal was heard, the [defendant] withdrew the decision to make a deportation order which included the decision to refuse your asylum application. It is therefore the Secretary of State’s view that your asylum application reverted to being outstanding and that your representative’s view is incorrect.”

This explanation was provided by a member of the Legacy Team some twenty two months after the caseworker’s decision taken in February 2008 only to concede deportation action and not to concede the case. The explanation is, however, revealing since it concedes that the deportation order decision “included the decision to refuse [the claimant’s] asylum application.” Until that letter was written, the defendant had always consistently, but erroneously, asserted that the claimant had never made an asylum application other than the application made on first arrival in the United Kingdom.

The reconsideration application was conceded because the Senior Caseworker rightly considered that it had only a very small chance of success as a result of the errors made by the defendant’s representatives prior to and at the hearing of the appeal. The caseworker then decided to implement that decision by the only method of “conceding the case” which would deprive the claimant of much of the success he had achieved by the AIT decision which would probably have taken effect but for the withdrawal of the deportation decision. This method was chosen since it was the only method which would enable the defendant to continue to treat the claimant as one who was not entitled to refugee status and who was only to be granted leave to remain on the basis that he had been excluded from that status by the operation of article 33(2). Had the reconsideration application been withdrawn or abandoned, the entire decision of the AIT would have taken effect. Had the defendant wished to allow the claimant the benefit of the article 3 decision but not of the asylum decision, he should have continued with the reconsideration application and sought a variation of the AIT decision by deleting from it the finding that the claimant was entitled to asylum. There was, however, little prospect that the AIT, if it had heard the reconsideration application, would have done anything other than confirm the entire decision being reconsidered.

It follows that the decision to withdraw the deportation order decision was taken because the defendant considered that that was the only way that the claimant could be deprived of the benefits of asylum since, as the defendant’s counsel’s skeleton put it, there would otherwise arise: “the unfairness to the public at large in having [the claimant’s] case decided without reference to s 72 or Article 33(2) of the Refugee Convention”. This is an example of what the claimant’s counsel characterised in argument as amounting to the unlawful circumvention of an unfavourable decision of the AIT.

The claimant relies on the TB (Jamaica) decision in contending that he is entitled to be granted refugee status and leave to remain as a refugee. In that case, the defendant gave notice to deport TB following his conviction and 46-month sentence for supplying class A drugs. The defendant did not rely on section 72 or raise the relevance of that conviction in the notice to deport or in the subsequent appeal by TB to the AIT. The Immigration Judge allowed TB’s appeal under the Refugee Convention and article 3. The defendant did not seek to have the decision reconsidered or set aside. The defendant then declined to give TB 5 years’ leave to remain to which he was entitled as a refugee, relying on the section 72 presumptions. The Court of Appeal dismissed the defendant’s appeal from the decision of the Administrative Court that the defendant was not entitled to raise section 72 presumptions following the asylum appeal having been allowed and no challenge having been pursued to that decision by the Secretary of State. There were two basis for this decision:

Burnton LJ gave helpful guidance as to the governing principles as follows:

“30.

… it was open to the Secretary of State to seek to establish that Art 33(2) applied to TB on the hearing of his appeal; and it was open to the Secretary of State to seek to appeal the decision of the immigration judge on the ground that in failing to apply the statutory presumption she erred in law. She did not do so, and it is not easy to see why, if she is bound by the Immigration Judge's decision, she should be able to take the same point subsequently. I asked Mr Jay why, if she can take the Article 33.2 point after an adverse decision by an Immigration Judge, she could not take any other point under the Refugee Convention after an adverse decision, and I do not think he was able to provide a satisfactory answer. I see no basis on which it could be said that section 72 confers on Article 33.2 any special status that enables that provision to be relied upon when others cannot.

…

32.

As a matter of principle, it cannot be right for the Home Secretary to be able to circumvent the decision of the IAT by administrative decision. If she could do so, the statutory appeal system would be undermined; indeed, in a case such as the present, the decision of the Immigration Judge on the application of the Refugee Convention would be made irrelevant. That would be inconsistent with the statutory scheme.

33.

The principle that the decision of the Tribunal is binding on the parties, and in particular on the Home Secretary, has been consistently upheld by the Courts. In R (Mersin) v Home Secretaryhttp://www.bailii.org/ew/cases/EWHC/Admin/2000/348.html (Footnote: ¹²), Elias J said:

‘In my opinion there is a clear duty on the Secretary of State to give effect to the Special Adjudicator's decision. Even if he can refuse to do so in the event of changed circumstances or because there is another country to which the applicant can be sent, there is still a duty unless and until that situation arises. It would wholly undermine the rule of law if he could simply ignore the ruling of the Special Adjudicator without appealing it, and indeed Mr. Catchpole [counsel for the Home Secretary] does not suggest that he can. Nor in my opinion could he deliberately delay giving effect to the ruling in the hope that something might turn up to justify not implementing it. In my judgment, once the adjudicator had determined the application in the applicant's favour, the applicant had a right to be granted refugee status, at least unless and until there was a change in the position.’

34.

In R (Boafo) v Home Secretary (Footnote: ¹³), Auld LJ said at [26] in a judgment with which the other members of the Court of Appeal agreed, "… an unappealed decision of an adjudicator is binding on the parties." In R (Saribal) v Home Secretary (Footnote: ¹⁴), Moses J said:

‘17. The decision in ex parte Boafo demonstrates an important principle at the heart of these proceedings. The Secretary of State is not entitled to disregard the determination of the IAT and refuse a claimant's right to indefinite leave to remain as a refugee unless he can set aside that determination by appropriate procedure founded on appropriate evidence.’

35.

Of course, different considerations may apply where there is relevant fresh evidence that was not available at the date of the hearing, or a change in the law, and the principle has no application where there is a change in circumstances or there are new events after the date of the decision: see Auld LJ in Boafoat [28]. But this is not such a case.

36.

The judge described the attempt by the Secretary of State to raise the section 72 issue after the Immigration Judge's decision and to refuse leave to enter and to remain as an abuse of process. That is an expression normally reserved for abuses of the process of the courts. The Secretary of State's action might be castigated as an abuse of power, but I would prefer to avoid pejorative expressions of uncertain denotation and application and to hold simply that the Secretary of State was bound by the decision of the Immigration Judge and that her subsequent action was unlawful on the ground that it was inconsistent with that decision. It follows that the judge's conclusion was correct. The Home Secretary is bound to grant TB the leave to remain to which the Immigration Judge's decision entitled him.”

Defendant’s contentions

The defendant contended that the decision in TB (Jamaica) was confined to a case where section 72 was never raised by the defendant until after the AIT’s decision had became binding on the parties whereas, in this case, there never has been an AIT decision on the section 72 issue. However, on closer analysis, it can be seen that both TB (Jamaica) and this case involved situations where the defendant undermined the appeal process and acted inconsistently with the stance adopted in that process.

In TB (Jamaica) the defendant’s undermining and inconsistent acts consisted of the reliance on section 72 as the basis of granting the applicant six months’ discretionary leave to remain as opposed to the five years’ leave to remain as a refugee that the AIT’s decision would have entitled him to.

In this case, the undermining and inconsistent acts consisted of the defendant, having unsuccessfully sought to raise the section 72 issue during the appeal process and then having lost comprehensively before the AIT, obtained a reconsideration hearing on the ground that the original decision was wrong in law in shutting that issue out, he then withdrew the original decision under appeal because he was advised that he had very limited prospects of setting aside any part of the original decision. Since the decision was, in effect, to abandon the reconsideration hearing and concede the original decision, the defendant should have implemented that decision by granting the claimant refugee status and leave to remain as a refugee. The course adopted amounts to both inconsistency with and subversion of the appeal process.

It was also contended on behalf of the defendant that the claimant had not claimed asylum prior to the deportation decision being made so that that decision was not concerned with the Refugee Convention nor with the issue of asylum nor with the issue of the applicability of the section 72 presumptions. Therefore, the defendant was entitled to withdraw the deportation decision and to proceed on the basis that there was an undecided asylum application that had to be decided in accordance with section 72. This contention is, however, contrary to the basis of the defendant’s decision dated 7 December 2009 and is, in any event, erroneous (Footnote: ¹⁵).

The defendant also contended that the withdrawal of the deportation decision was not brought about in an attempt to avoid inevitable defeat before the AIT but the converse is suggested by the evidence. The evidence suggests that the defendant had decided to concede the entire case because he considered that he was bound to lose it in a way that would require him to treat the claimant as a refugee.

Finally, it was contended that the deportation decision could not stand because the AIT had allowed the claimant’s appeal on human rights grounds so that withdrawal was a wholly proper course and the subsequent refusal to grant the claimant asylum was not inconsistent with that decision. However, the complaint is not that the deportation decision was withdrawn but that, following its withdrawal, the defendant acted so as to deny the claimant the same benefits as would have been available to anyone granted asylum.

The defendant’s principal objection to the claimant’s case is that it is contrary to the public interest to allow an applicant to obtain refugee status and a grant of asylum, both privileged grants, where that applicant has already been convicted of a particularly serious offence and where there has been no consideration of the statutory presumption that such an offender should not be granted asylum unless he first is able to rebut that presumption. In this case, the defendant sought to rely on the section 72 presumptions but was refused permission to do so. Thus, the claimant’s application for asylum, successful as it was before the AIT, had been obtained without any consideration of his convictions. The public interest demanded a rigorous prior investigation of the claimant’s criminal activities and levels of risk before he was granted asylum.

This submission overlooks several crucial matters. In particular:

The defendant acted inconsistently and in a manner that subverted the appeal process in the claimant’s case. Following the decision to concede the case and to withdraw the deportation decision, the defendant should have granted the claimant 5-year leave to remain as a refugee as soon as reasonably possible after 27 April 2007. Instead, the claimant was granted three successive discretionary leaves to remain on 7 March 2008 for six months, on 29 September 2008 for twelve months and on 7 December 2008 for six months. The relevant date from which leave to remain as a refugee should have been granted is a date 30 days after 27 April 2007. That is the date of the promulgation of the AIT decision and since that decision should have been confirmed, or effect given to it, when the defendant conceded the reconsideration application, it should be taken as the starting date for the grant of leave to remain as a refugee. Since, in practice, such a grant would be promulgated within 30 days of the AIT decision, the appropriate starting date is 27 May 2007.

The application dated 1 February 2007 was a repeat application for refugee status and asylum to that made in an earlier application in July 2006. This earlier application had been refused by the defendant in the decision dated 11 January 2007 as was confirmed by the defendant’s decision dated 7 December 2009. The defendant also refused the claimant’s further asylum application dated 1 February 2007 in a decision dated 16 February 2007. The AIT decided that the claimant’s asylum appeals from those refusals should be allowed. The defendant was, in law, required to act consistently with that decision once he had decided to concede the case, namely to withdraw or abandon the reconsideration application relating to that AIT decision. There was, therefore, no outstanding asylum application dated 1 February 2007 capable of being dismissed by the decision dated 7 December 2009.

Whether the decisions granting extensions of the discretionary leave to remain dated 12 September 2008 and 7 December 2009 were lawful.

Neither decision was lawful since the defendant should have granted leave to remain as a refugee for five years from the date of the grant following the AIT’s decision, being 27 May 2007, rather than discretionary leave to remain for six or twelve months as someone who had been refused the protection of the Refugee Convention by virtue of article 33(2). The grant of lesser protection provided by that decision, given the entitlement to the greater protection afforded by the grant of refugee status was, therefore, unlawful.

Whether the claimant has a suitable alternative remedy

The defendant contended that the claimant has a suitable alternative remedy, namely his outstanding appeal against the defendant’s decision dated 7 December 2009 that purported to refuse the purported outstanding application for asylum served by the claimant on 1 February 2007. The claimant has appealed the decision of 7 December 2009, but only as a precaution in case this judicial review does not succeed.

However, that appeal is not a suitable alternative remedy. Firstly, the claim dated 1 February 2007 was decided by the AIT’s decision and the defendant is now required, consistently with that decision, to accept that the claimant is entitled to refugee status. Secondly, if there is an available appeal and it succeeds, it is probable that the grant of leave to remain as a refugee that would result from that success could and would only run from the date of that appeal decision and not from the much earlier date from which the five-year grant should have run from. Thirdly, and most significantly, the claimant does not need to seek a remedy by way of an appeal from the decision dated 7 December 2009 because he is now entitled to be treated as a refugee who has been granted asylum on a date that is no later than 27 May 2007.

The relief that the claimant is entitled to

In TB (Jamaica), the claimant was granted a declaration that the defendant was bound to grant him the leave to remain to which he was entitled. In this case, the claimant is entitled to a similar declaration, namely that the defendant Secretary of State is bound to grant the claimant leave to remain on the basis of his having been granted refugee status and asylum as a refugee on 27 May 2007.

I therefore conclude: