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Saad & Ors v Secretary of State for the Home Department, [2001] EWCA Civ 2008 (19 December) (Court of Appeal 2001)


JISCBAILII_CASE_IMMIGRATION



Neutral Citation Number: [2001] EWCA Civ 2008



Case No: C/2000/3596 
Case No: C/2000/3650 
Case No: C/2001/1099

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SPECIAL ADJUDICATOR
IMMIGRATION APPEALS TRIBUNAL



Royal Courts of Justice
Strand, London, WC2A 2LL



19th December 2001

B e f o r e :

LORD PHILLIPS MR
LORD JUSTICE SCHIEMANN
and 
LORD JUSTICE CLARKE

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SAAD, DIRIYE AND OSORIO

Appellants


- and -



SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

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Martin Soorjoo (instructed by Luqmani Thompson & Partners) for the First Appellant
Rick Scannell and Ronan Toal (instructed by Glazer Delmar) for the Second Appellant
Raza Husain (instructed by Luqmani Thompson & Partners) for the Third Appellant
Ashley Underwood QC (instructed by Treasury Solicitor) for the Respondent 

____________________

HTML VERSION OF JUDGMENT
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Crown Copyright ©

Lord Phillips MR :

This is the judgment of the court to which each of its members has contributed.

Introduction

  1. This country is a party to the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol ('the Convention'). The Convention requires the United Kingdom to grant certain rights to refugees, who have fled from their home countries. We must not send them back to those countries (an act described as refoulement) but permit them to remain here, unless there is some safe third country to which they can be sent. While we grant them asylum here, we must accord them certain rights ('Convention rights').

  1. Refugees who arrive in this country are anxious to have their status as refugees established. This is not merely because recognition of their refugee status will carry with it the entitlement to remain here, but because it will ensure that they are accorded Convention rights while they are here. No primary legislation makes provision for asylum claimants to have their claims to refugee status established. No primary legislation accords to refugees whose status is established the right to remain here. What happens in practice is that asylum seekers apply for permission to enter or to remain in this country under the general provisions of the Immigration Act 1971 ('the 1971 Act'), which apply to any alien seeking permission to enter or remain in this country, but rely upon their claim to refugee status when making that application.

  1. Claims for asylum are considered by the Secretary of State for the Home Department. Where he recognises the refugee status of a claimant that claimant is, under current policy, granted indefinite leave to enter or remain and accorded Convention rights. Where the refugee status of a claimant is not recognised by the Secretary of State, the claimant may be refused entry, removed or deported. Alternatively the asylum claimant may be given permission to enter or remain for a defined period on grounds other than refugee status. In that event the claimant is not accorded full Convention rights. We should also note that in some cases applicants are left in limbo, as occurred in the Afghan hijacking case to which we refer below.

  1. Each of the appellants has made a claim for asylum which the Secretary of State has rejected. Each appellant has nonetheless been granted permission to remain for a defined period. Each has sought unsuccessfully, by appeal, to challenge the refusal to recognise his refugee status. The appeals were made pursuant to statutory provisions which were then contained in the Asylum and Immigration Appeals Act 1993 ('the 1993 Act'). That Act for the first time gave express statutory recognition to the rights of refugees not to be subjected to refoulement. Its provisions have since been replaced by provisions of the Immigration and Asylum Act 1999 ('the 1999 Act').

  1. The linked issues raised by this appeal are (i) in what circumstances can an asylum claimant who has been permitted to remain in this country exercise, or continue to exercise, a right of appeal under the 1993 Act in order to challenge the refusal of the Secretary of State to recognise his refugee status? and (ii) what effect does the current refugee status of the appellant have on the outcome of an appeal under the 1993 Act?

  1. The latter question is one that has also been raised in a number of claims for judicial review brought the Secretary of State arising out of a decision of the Immigration Appeal Tribunal ("the IAT") to adjourn appeals brought by asylum seekers who arrived here on an aircraft which had been hi-jacked in Afghanistan. In the course of preparing our judgment in these appeals it occurred to us that there might be an the overlap of issues and an inconsistency of approach on the part of the Secretary of State to those issues in the two sets of proceedings. We accordingly deferred giving judgment until the claims for judicial review had been heard. We also sat as the Administrative Court to hear those claims and we restored, simultaneously, the hearing of these appeals in order to permit the appellants to advance further submissions in the light of those made in the claims for judicial review.

Convention Rights

  1. Article 32 of the Geneva Refugee Convention provides:

"1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order."

  1. Article 33 of the Convention provides:

"1. No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

  1. The protection afforded by Articles 32 and 33 is the most important benefit conferred on refugees by the terms of the Convention. It is not, however, the only benefit. Other articles of the Convention make provision for the manner in which Contracting States are to treat refugees. These provisions require states to accord beneficial treatment to refugees in relation to gainful employment, welfare and administrative measures such as the provision of travel documents – see for instance Articles 17, 24 and 28.

  1. In Adan v Home Secretary [1997] 1 WLR 1107 Simon Brown LJ set out at p 1113 some of the benefits enjoyed by those whose refugee status has been recognised, when compared with those in this country under exceptional leave to remain. At p 1116 he added:

"Non-refoulement constitutes part only of the benefits attaching to refugee status and, as indicated, the part presently least important to these applicants who cannot be removed anyway. Their concern rather is not to remain here in limbo - without benefits, without security, unable to travel, unable to bring in their families - but instead to enjoy the specific advantages to which refugees are entitled under both international and domestic law."

  1. The concept of an individual having rights bestowed on him by a treaty is not without jurisprudential difficulty. But any jurisprudential difficulties are of no immediate concern and it is convenient to refer to refugees in respect of whom Contracting States have duties under the Convention as having Convention rights. Public international law requires that signatories to the Convention must implement it in a manner which is reasonably efficacious. There is no doubt that this country is under an obligation under international law to enable those who are in truth refugees to exercise their Convention rights.

Access to Convention Rights

  1. Although Convention rights accrue to a refugee by virtue of his being a refugee, unless a refugee claimant can have access to a decision maker who can determine whether or not he is a refugee, his access to Convention rights is impeded. As Goodwin–Gill, referring to the rights given by Article 28, points out at p 303 of the second edition of his "The Refugee in International Law":

"A … serious obstacle in practice to the issue of Convention travel documents can result from the absence within a State's administration of any procedure for consideration and determination of refugee status. Even where such procedures do exist they may be limited to consideration of refugee status in the context of asylum, that is, at the point at which questions of admission, residence and expulsion arise. The refugee admitted under a resettlement programme, or allowed to remain otherwise than by reference to his or her refugee status (for example, as a student or business person, or by reason of marriage to a local citizen) may be unable, quite simply, to invoke such status and thereby to secure treatment in accordance with the Convention. The standard of reasonably efficient and efficacious implementation suggests that some sort of procedure is required, if States are to meet their obligations under provisions such as article 28."

  1. Section 2 of the 1993 Act has the side note "Primacy of Convention" and provides:

"Nothing in the Immigration Rules ... shall lay down any practice which would be contrary to the Convention."

  1. As Lord Keith of Kinkel observed in R v Home Secretary ex parte Sivakumaran [1988] AC 958 at 990, the provisions of the Convention have "for all practical purposes been incorporated into United Kingdom law". Indeed Mr Ashley Underwood QC, who appears for the Secretary of State in these appeals, accepts that the United Kingdom has obligations that go beyond non-refoulement.

  1. We approach this case on the basis set out in Bennion on "Statutory Interpretation" (3rd ed) p 630 that:

"It is a principle of legal policy that the municipal law should conform to public international law. The court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle."

  1. It follows that, absent a clear Parliamentary indication to the contrary, we would expect our primary and delegated legislation to provide a system whereby claimants may have it determined whether they are refugees. It is only that determination which gives them access to Convention rights. We therefore approach questions of construction on that basis.

The Definition of a Refugee

  1. The Convention definition of a refugee is relatively narrow and comprises only a subset of those to whom one might colloquially refer as refugees. The Convention contains in Article 1A a number of definitions of refugee for its purposes. The only one of present relevance is:

" a person who … owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country … .".

  1. The Convention recognises that political and personal situations may change over time. It provides in Article 1C that:

This Convention shall cease to apply to any person falling under the terms of Section A if:

(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or

(2) Having lost his nationality, he has voluntarily re-acquired it, or

(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or

(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or

(5) He can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality; …"

  1. It follows that the Convention only requires this country to grant asylum for so long as the person granted asylum remains a refugee. It would be enough to satisfy the Convention if the Secretary of State were to grant refugees temporary leave to remain for so long as their refugee status persisted. It is nonetheless his practice to accord refugees indefinite leave to remain and this is one reason why recognition of refugee status is of practical importance to the asylum seeker.

The Secretary of State : The Primary Decision Maker

  1. The refugee claimant cannot make use of his Convention rights unless he can have it determined whether or not he is a refugee. There is no doubt that in this country the primary decision maker in practice is the Secretary of State. We are concerned with cases where the Secretary of State has taken the primary decision. We are not however to be taken as deciding that the question whether a person is a refugee can never be decided by the courts.

  1. The Convention says nothing about procedures for determining refugee status, and leaves to States the choice of means as to implementation at the national level. It would be consonant with our obligations under the Convention for the decision making process to be entirely left to the Secretary of State.

"Whether a state takes steps to protect refugees within its jurisdiction and if so which steps, are matters very much within the realm of sovereign discretion. For States parties to the Convention … however the outer limits of that discretion are confined by the principle of effectiveness of obligations, and the measures it (sic) adopts will be judged by the international standard of reasonable efficacy and efficient implementation. Legislative incorporation may not itself be expressly called for, but effective implementation requires, at least some form of procedure which can be identified, and some measure of protection against laws of general application governing admission, residence and removal." Goodwin-Gill op cit p 324.

  1. As will appear, there is no express obligation imposed on the Secretary of State in any statute to determine each request that an applicant be recognised as a refugee. It is common ground that in some cases the Secretary of State can remove an applicant to a third country for that determination to be made. We are not concerned with such cases. As for the remaining cases, instead of providing an overall express regime for each application to be recognised as a refugee to be determined, Parliament has adopted a piecemeal approach and provided for the question of refugee status to be determined in a variety of specific situations connected with action taken under the Immigration Acts.

An Appellate System : No Requirement under the Convention

  1. The Convention does not require that there be an appellate system enabling the claimant to challenge any initial decision that he is not a refugee. In practice each state sets up its own procedures and these differ from one state to another. There is no central authority set up under the Convention having jurisdiction to determine whether a particular nation's procedures are satisfactory.

  1. The UNHCR Executive Committee noted in 1977 that only a limited number of State parties to the Convention had established procedures for the formal determination of refugee status under the Convention and expressed the hope that all parties to the Convention which had not yet done so would take steps to establish such procedures in the near future. It recommended that procedures for the determination of refugee status should satisfy a number of basic requirements, which included that, if the applicant was recognised as a refugee, he should be issued with a document certifying his refugee status and that, if he was not so recognised, he should be given a reasonable time to appeal for a formal reconsideration of the decision.

  1. Nevertheless, the formal position in international law is that there is no obligation on this country to establish an appellate system. The United Kingdom could simply have left the determination of whether a person is or is not a refugee in the hands of the Secretary of State.

  1. However, in the event Parliament has chosen to provide an appellate system. The question arising in this appeal is in what circumstances a refugee claimant can avail himself of that system.

The Application for Leave to Enter or Remain

  1. The asylum seeker will advance his claim to refugee status in the context of an application pursuant to the following provisions of the 1971 Act:

"3 (1) Except as otherwise provided by or under this Act, where a person is not a British citizen –

(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;

(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;

(c) …

(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances.

(3) In the case of a limited leave to enter or remain in the United Kingdom,

(a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions …"

  1. The rules made pursuant to the 1971 Act include the Statement of Changes in Immigration Rules HC 395, which provides:

327 … an asylum applicant is a person who claims that it would be contrary to the UK's obligations under the …Convention …for him to be removed from or required to leave the UK. …

328 All asylum applications will be determined by the Secretary of State in accordance with the UK's obligations under the …Convention. …

329 Until an asylum application has been determined by the Secretary of State … no action will be taken to require the departure of the asylum applicant or his dependants from the United Kingdom.

330 If the Secretary of State decides to grant asylum and the person has not yet been given leave to enter, the Immigration Officer will grant limited leave to enter.

334 An asylum applicant will be granted asylum in the UK if the Secretary of State is satisfied that

(i) he is in the UK …

(ii) he is a refugee as defined by the Convention; and

(iii) refusing his asylum application would result in his being required to go (whether immediately or after the time limited by an existing leave to enter or remain) in breach of the Convention … to a country in which his life or freedom would be threatened [for a Convention reason].

335 If the Secretary of State decides to grant asylum to a person who has been given leave to enter (whether or not the leave has expired) or to a person who has entered without leave, the Secretary of State will vary the existing leave or grant limited leave to remain.

336 An application which does not meet the criteria set out in paragraph 334 will be refused.

  1. The definition of an asylum applicant in Rule 327 is, in effect, a person who claims the right to remain in the country by virtue of his or her status as a refugee under the Convention, for the Convention obligations to which Rule 327 refers arise only in relation to those who are refugees, as defined by Article 1 of the Convention.

  1. Rules 330 and 335 provide that where the Secretary of State decides to grant asylum, the Immigration Officer will grant limited leave to enter to an applicant who has not been given leave to enter, and that the Secretary of State will vary existing leave or grant limited leave to remain to an applicant who has been given leave to enter or has entered without leave. Despite these provisions, as we have explained, it is the current practice of the Secretary of State to grant indefinite leave to remain to those entitled to asylum.

The Right of Appeal

  1. In Part II of the 1971 Act Parliament provided for a system of appeals to adjudicators and thence to the IAT in immigration cases. However, in many cases access to that appellate system was limited to those who were outside this country. If a refugee claimant was refused entry clearance, he had to go and exercise his rights of appeal from abroad.

  1. The requirement that appeals must be conducted from abroad was manifestly not satisfactory for refugees who were in fear of persecution and perhaps their life, if they were returned to their home country. In practice, if the Secretary of State refused to accept that a claimant was a refugee, the claimant often brought proceedings for judicial review of the Secretary of State's decision. That had disadvantages since that process was not designed to test evidence either as to the internal conditions in the countries from which the claimants had fled or as to the treatment there experienced by the claimants and their families.

  1. It is obvious, and experience has shown, that the task of determining whether a claimant comes within the definition of "refugee" is an extremely difficult one in many cases. The facts are often difficult to establish. The law is sometimes not clear. Even when the facts are established and the law is clear there can be room for legitimate differences of opinion as to whether a claimant to refugee status has made good his claim.

  1. By the 1993 Act Parliament established an appellate regime specifically designed for those claiming to be refugees, a regime moreover which could be operated whilst the claimants were still in this country. The Act provided for the designation of some of the adjudicators as special adjudicators with particular expertise in this area and it was these who were given the responsibility for determining refugee cases.

  1. The relevant legislation governing the possibility of appeal was as follows. Part II of the 1971 Act provides:-

"13(1) … a person who is refused leave to enter the United Kingdom under this Act may appeal to an adjudicator … against the refusal.

14(1) … a person who has limited leave under this Act to enter or remain in the United Kingdom may appeal to an adjudicator against any variation of that leave (whether as regards duration or conditions), or against any refusal to vary it; …

19(1) … an adjudicator …-

(a) shall allow the appeal if he considers –

(i) that the decision or action against which the appeal is brought was not in accordance with the law or with any of the immigration rules applicable to the case; or

(ii) …

(b) in any other case shall dismiss the appeal.

(2) For the purposes of subsection (1)(a) above, the adjudicator may review any determination of a question of fact on which the decision was based …

(3) Where an appeal is allowed, the adjudicator shall give such directions for giving effect to the determination as the adjudicator thinks requisite …; and … it shall be the duty of the Secretary of State and of any officer to whom directions are given under this subsection to comply with them.

20 … any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal, and the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator."

The 1993 Act provides:-

"8(1) A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against that refusal to a special adjudicator on the grounds that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention

(2) A person who has limited leave … to enter or remain in the United Kingdom may appeal to a special adjudicator against any variation of, or refusal to vary, the leave on the ground that it would be contrary to the United Kingdom's obligations under the Convention for him to be required to leave the United Kingdom after the time limited by the leave.

(3) Where the Secretary of State

(a) has decided to make a deportation order against a person …, or

(b) has refused to revoke a deportation order made against a person ...

the person may appeal to a special adjudicator against the decision or refusal on the ground that his removal would be contrary to the United Kingdom's obligations under the Convention; ...

(4) Where [certain directions for removal] are given … the person may appeal to a special adjudicator against the directions on the ground that his removal in pursuance of the directions would be contrary to the United Kingdom's obligations under the Convention.

(6) Schedule 2 to this Act … shall have effect; and the preceding provisions of this section shall have effect subject to that Schedule."

Schedule 2 of the 1993 Act provides:-

"1. No appeal may be brought under Part II of the 1971 Act on any of the grounds mentioned in subsections (1) to (4) of section 8 of this Act.

2. A person may not bring an appeal on any of the grounds mentioned in subsections (1) to (4) of section 8 of this Act unless, before the time of refusal, variation, decision or directions (as the case may be) he has made a claim for asylum

3. Where an appeal is brought by a person on any of the grounds mentioned in subsections (1) to (4) of section 8 of this Act, the special adjudicator shall in the same proceedings deal with [all appeals under Part II of the 1971 Act].

4.(1) … the provisions in the 1971 Act specified in sub-paragraph (2) below shall have effect as if section 8 were contained in Part II of that Act.

(2) The provisions referred to in subparagraph (1) are …

(b) section 19 …"

  1. The phrase 'a claim for asylum' is defined in section 1 of the 1993 Act as meaning

"a claim made by a person … that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from or required to leave, the United Kingdom".

There are various provisions in the 1971 Act and the 1993 Act which prevent removal of persons during the appeal process.

  1. Section 8 gives a right of appeal on grounds that directly raise the issue of the refugee status of the appellant, for the appeal will only succeed if the appellant can establish entitlement, whether immediate or prospective, to the protection that the Convention accords him as a refugee. But in order to raise the issue of his refugee status, the appellant has to demonstrate that there is extant a decision against which section 8 gives him a right of appeal. The section gives that right in relation to four decisions that may be made under the 1971 Act:

i) a decision to refuse leave to enter;

ii) a decision to vary, or to refuse to vary, limited leave to enter or remain;

iii) a decision to make a deportation order or to refuse to revoke a deportation order; and

iv) a direction for removal.

  1. It is the case of the Secretary of State, as advanced by Mr Underwood, that the right of appeal afforded by each of the subsections of section 8 is exclusively designed to safeguard the appellant against the risk of refoulement contrary to the Convention. The need to consider refugee status only arises as an incident of the task of deciding whether refoulement is threatened. The right of appeal is not designed to enable a challenge to the status of a person who is not threatened with removal or deportation. Where limited leave to enter or remain has been given, an appeal can only be brought under section 8(2), and then only on the ground that the existing leave to enter or remain will expose the appellant to refoulement when it comes to an end.

  1. It is the case of the appellants that an appeal under section 8 is, in the case of each subsection, a legitimate and appropriate means of determining whether the appellant enjoys refugee status at the time that the appeal is heard.

Mr Osorio's appeal

  1. Mr Osorio's appeal was brought under section 8(1) of the 1993 Act in the following circumstances. Mr Osorio's claim that he was a refugee was rejected by the Secretary of State. He was refused leave to enter. He appealed to a special adjudicator who dismissed his appeal. Mr Osorio then obtained leave to appeal to the IAT. At this stage the Secretary of State granted him Exceptional Leave to Remain ("ELR") until 30th September 2002. The appeal then came on for hearing before the IAT. The IAT dismissed the appeal on basis that once ELR had been granted there was nothing left against which to appeal. As they put it "once he had been granted ELR, the question whether or not his removal would be contrary to the United Kingdom's obligations would then fall away and there would, as the Court of Appeal in Massaquoi v Secretary of State for the Home Department [2001] Imm AR 309 said, be 'nothing left to argue about'".

  1. In Massaquoi the Secretary of State had decided to make a deportation order. The appellant, pursuant to section 15(1)(a) of the 1971 Act, appealed to a special adjudicator against that decision. The appellant also appealed pursuant to section 8(3)(a) of the 1993 Act. The special adjudicator allowed her section 15 appeal. In those circumstances the decision to make a deportation order was no longer effective and the special adjudicator dismissed her section 8 appeal. The appellant obtained leave to appeal to the IAT against the dismissal of her section 8 appeal, but, before that appeal could be heard, the Secretary of State granted her exceptional leave to remain. The IAT held that with the grant of exceptional leave to remain there was no longer any question of the appellant being obliged to leave the United Kingdom in breach of its obligations under the 1951 Convention and that accordingly the appeal inevitably fell to be dismissed.

  1. The appellant appealed to this court, contending that she should not have been prevented from pursuing her appeal, which would have determined the important issue of whether she had refugee status.

  1. This court, as appears from paragraph 30 of the judgment of Kennedy LJ (with whom Schiemann LJ and Wilson J agreed), decided that:

"the decision to make a deportation order is not simply a condition precedent to an appeal. It is that decision which is the subject matter of the appeal, and if it has been withdrawn or quashed there is nothing left to argue about".

This court held that in consequence the IAT was right to hold that in those circumstances the appeal must be dismissed.

  1. It is possible to distinguish Mr Osorio's case from that of Massaquoi. In Massaquoi the decision to deport the appellant was revised before the appeal to the IAT. As a result there was indeed no longer any decision to appeal against under s.8(3). In the case of Mr Osorio, however, the decision to refuse him leave to enter has and had never been expressly reversed. The grant of exceptional leave to remain can be said, on strict analysis, to leave the refusal of leave to enter susceptible to challenge by appeal. The reality is, however, that Mr Osorio is in the same position as if he had been given limited leave to enter and the object of his appeal is to determine whether he is entitled to refugee status rather than to allay apprehension about the risk of refoulement. His appeal raises the question of principle of whether section 8 appeals should be used to challenge decisions on refugee status where the grant of exceptional leave to remain has removed apprehension of refoulement.

  1. It can be argued on the basis of the following passage in the judgment of Kennedy LJ that this court considered that the question posed above should be answered in the negative. He said at p 317:

"In the context of this case the grant of ELR it would have been necessary for the special adjudicator of the Immigration Appeal Tribunal to consider the effect of the grant on the pre-existing decision. It may well be that the grant of ELR for a short period could properly be regarded as leaving the decision to deport unimpaired, and thus capable of being challenged in an appeal pursuant to section 8(3), but that is not this case."

It may be said to be implicit in that passage that the court considered that an appeal should only lie where the risk of refoulement was fairly imminent. These appeals raise the question of whether that conclusion is correct.

  1. Before considering whether appeals under section 8 are an appropriate vehicle for challenging decisions of the Secretary of State as to refugee status, it is necessary to examine the extent to which such appeals will determine whether appellants have refugee status. We believe that this question can be confidently answered in relation to appeals under section 8(1).

  1. Section 19(1)(a)(i) of the 1971 Act provides that the special adjudicator shall allow an appeal if he considers "that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case" and section 19(1)(b) provides that in any other case he shall dismiss the appeal. Moreover, by section 19(3) where an appeal is allowed the adjudicator shall "give such directions for giving effect to the determination as the adjudicator thinks requisite".

  1. In the case of an appeal under section 8(1) against a refusal of entry, the effect of those provisions appears at first blush to be as follows. It is the duty of the special adjudicator to consider whether the decision to refuse entry was not in accordance with the law on the ground that the applicant was a refugee and, if he considers that the applicant was a refugee, to hold that the Secretary of State's decision was not in accordance with the law and to allow the appeal. The special adjudicator must then give such directions to the Secretary of State as he thinks requisite. By that mechanism, on the face of the provisions, the applicant who is wrongly refused entry on the ground that he was not a refugee, when in fact and law he was, can obtain appropriate redress and have his refugee status (with its attendant Convention rights) recognised.

  1. However the decision of this court in Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97 demonstrates that the position is not quite so simple. In Ravichandran the court was considering appeals under section 8(1). One of the grounds upon which it was sought to challenge decisions of the special adjudicator and the IAT was that their jurisdiction was confined to considering the facts at the time of the Secretary of State's decision and that it was not open to them to rely upon improvements in the situation in Sri Lanka between 1993 when the appellants were refused asylum and 1995 when their appeals were finally dismissed. This court rejected that submission.

  1. Simon Brown LJ, with whom Staughton and Nourse LJJ agreed, recognised (at p 112) that the language of section 19 of the 1971 Act, and indeed the reasoning in earlier non-asylum cases relying upon it, supported the conclusion that the appellate process was simply one of review of the original decision, but expressed his conclusion thus (at pp 112-3):

"I have reached the conclusion that in asylum cases the appellate structure as applied by the 1993 Act is to be regarded as an extension of the decision-making process. I am, I think, entitled to reach that conclusion as a matter of construction on the basis that the prospective nature of the question posed by section 8 of the 1993 Act overrides the retrospective approach ordinarily required (implicitly) on a section 19 appeal. Section 8, after all, could, but does not, identify the ground of appeal as being that the appellant's removal "would have been" (rather than "would be") contrary to the United Kingdom's Convention obligations. Moreover, section 8(1) refers to a particular class of appeals and section 19 to appeals in general. It would be a strong thing to say that the general was to over-ride the particular."

  1. Simon Brown LJ then referred to policy considerations which make asylum appeals different from other appeals and observed that the position might have changed for the better or for the worse since the refusal of entry and concluded that in either event the appellate authorities were not bound to ignore such changes but should take them into account.

  1. Both Simon Brown and Staughton LJJ stressed that the express words of section 8(1) look to the future. Thus the sub-section provides that the appellant may appeal "on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention". (Our emphasis). It was thus held in Ravichandran that it is the duty of the appellate authorities to consider the position as at the time of the hearing of the appeal.

  1. The Secretary of State's "Detailed Statement of Grounds" in support of the application for judicial review in the Afghan hijacking case made the following submission in respect of the wording in the 1999 Act which, so far as here relevant, echoes that of section 8 of the 1993 Act:

"All asylum appeals are hypothetical. They are all concerned with the removal that has not in fact taken place. This is recognised by the wording of s 69(1)-(4) which in each case refer to a removal that the Appellant claims "would be " contrary to the Convention. It is to be noted that the statute does not say "will be". Although that is not this case, "would be" includes the situation where no removal is in fact contemplated."

  1. In Arif v Secretary of State for the Home Department [1999] INLR 327, where the appellant was not granted refugee status in circumstances in which he should have been and the question was whether by the time of the appeal to the special adjudicator and indeed to the IAT the situation in Azad Kashmir had changed so that the Convention no longer applied to him in accordance with Article 1C(5), which is quoted. This court held that the evidential burden of proving that the appellant ceased to be a refugee was on the Secretary of State. Simon Brown LJ put the point thus at page 331, after quoting a passage from paragraph 12.58 of the 4th edition of Macdonald's Immigration Law and Practice:

"The sentence I would particularly emphasise there is 'Proof that the circumstances of the persecution have ceased to exist would fall upon the receiving state'. It is true that because of the notoriously long delays which attend our system of asylum hearings the appellant here was never granted refugee status, even though until the change of government in Azad Kashmir in 1996 it is now assumed on all sides that he was strictly entitled to it. It nevertheless seems to me that by analogy, on the particular facts of this case, there is now an evidential burden on the Secretary of State to establish that this appellant could safely be returned home."

  1. That passage draws attention to the course that appellate proceedings are likely to follow. The appellant is likely to focus on the circumstances prevailing at the time that the Secretary of State refused his application for asylum. If he demonstrates that at that time he was a refugee, the evidential burden will shift to the Secretary of State to demonstrate that circumstances have changed so that he has ceased to be a refugee.

  1. What emerges from this analysis is that, where an appeal is brought under section 8(1), the appeal tribunal will necessarily have to determine the refugee status as at the date of the hearing of the appeal. It follows that such an appeal provides a satisfactory vehicle for mounting a challenge to the Secretary of State's rejection of an asylum claim.

  1. The same is true of an appeal under sub-sections 8(3) and 8(4). In each case the decision facing the tribunal is the hypothetical one of whether removal would be contrary to the Convention at the time of the hearing - i.e. on the basis of the refugee status of the appellant at that time.

  1. As further appears in our judgment on the application for judicial review in the Afghan hijacking case, the Secretary of State was, in our judgment, right to submit that all asylum appeals under section 69 of the 1999 Act (and thus under section 8 of the 1993 Act) are hypothetical in the sense that they involve the consideration of a hypothesis or assumption, which is reflected in the wording of each of the subsections of section 8, namely that the applicant's removal or requirement to leave (as the case might be) "would be contrary to the United Kingdom's obligations under the Convention" (our emphasis).

  1. When one turns to the particular position under section 8(2), it is perhaps more complex, and this is demonstrated by the other two appeals.

Mr Saad's Appeal

  1. Mr Saad was given leave to enter limited to 6 months. During that time he applied for his leave to enter to be varied because he was a refugee claimant. The Secretary of State did not accept that he was a refugee but nevertheless granted him ELR until March 2004. He appealed to a special adjudicator who dismissed the appeal under section 8(2) of the 1993 Act on the basis that appellant had to show that he would be required to depart at the end of the period of the leave but could not do so. He appealed to the IAT who dismissed the appeal stating that the appellant had to prove that there was a serious possibility that he would be persecuted if returned in 2004 and stating that "it would be entirely irresponsible to reach a judgment today about what will be the position in Sudan in nearly four years time."

Mr Diriye's Appeal

  1. Mr Diriye's case is very similar to that of Mr Saad save that the ELR was only until 27th July 2002. On 14th June 2000 a special adjudicator dismissed an appeal against the refusal of his application to be accepted as a refugee saying that the appellant must prove that there is a serious possibility that he will be persecuted if returned in 2002. He stated:

"… the appellant when appealing under section 8(2) needs to establish that, if he is required to go at the end of his leave, such removal would put this country in breach of its Convention obligations. … In a changing world I do not consider that the appellant can demonstrate … that he will be persecuted if returned in 2002."

On 11th October 2000 the IAT dismissed a further appeal on the same basis.

  1. Both Mr Saad's and Mr Diriye's appeals turned on the words 'after the time limited by the leave' at the end of section 8(2). The tribunals held that the effect of these words was to place upon the appellant the burden of proving that, when exceptional leave to remain expired, he would enjoy refugee status, and that his refugee status at the time of the appeal was not in point. Such an approach robs section 8(2) of almost all effect when ELR has been granted for a significant period, for how can any asylum seeker be in a position to prove what conditions will prevail in the years to come? Indeed there would not seem to be much point in granting a right to appeal in such circumstances. Can Parliament have intended s.8(2) to operate in such a bizarre manner?

  1. It is helpful at this point to consider the position under the Immigration Rules, for they raise a similar point of construction. Rule 334(iii) provides that the Secretary of State will grant asylum if satisfied that refusal would result in the applicant being refouled 'whether immediately or after the time limited by an existing leave to enter or remain' (our emphasis). Rule 336 provides that the Secretary of State will refuse the application if not so satisfied.

  1. Where the immediate expulsion of a refugee would infringe the Convention, can the Secretary of State avoid the obligation to grant asylum to the refugee by granting exceptional leave to remain for an extended period? On the literal reading of Rule 334(iii) it would seem that he can. If exceptional leave to remain for, say, 30 months is granted, the Secretary of State will rarely be in a position to be satisfied that the circumstances rendering immediate expulsion or removal contrary to the Convention will persist to the end of that period.

  1. An interpretation of the Rules which permitted the Secretary of State to refuse asylum to a refugee on the ground that he has been granted ELR would, however, be in conflict with the UK's obligations of the Convention in relation to the treatment of refugees living within this country. It would thus conflict with the provisions of Rule 328. More significantly, it would conflict with section 2 of the 1993 Act, quoted above, because it would have the effect of laying down a practice which would be contrary to the Convention.

  1. In our judgment it is implicit in the test to be applied under Rule 334 that the Secretary of State should proceed on the assumption that the state of affairs prevailing at the time that he makes this decision will persist at the time that any limited leave to remain that has been granted expires. The Rules appear to envisage that any limited leave to remain is likely to be of short duration - hence the provision that on the grant of asylum, the Secretary of State will 'vary the existing leave' (Rule 335). In such circumstances it will normally be natural to envisage that the existing state of affairs will persist. A similar assumption must be made where a longer period of exceptional leave to remain has been granted if the Rules are to be applied in a manner that is compatible with the Convention.

  1. We should make clear at this point that we have seen nothing that suggests that the Secretary of State has been setting out to 'finesse' this country's obligations under the Convention by granting exceptional leave to remain to those whom he considers maybe entitled to asylum by reason of their status as refugees. As we understand the position, it is the practice of the Secretary of State where a claim to asylum is made first to consider the refugee status of the applicant having regard to the existing state of affairs. Only where he rejects the application under the Convention does he consider the grant of exceptional leave to remain. This issue of the correct interpretation of the Rules arises by reason of the approach of the IAT in the case of Mr Osorio and of the special adjudicator and IAT in the cases of Mr Saad and Mr Dirye.

  1. When one turns to the wording of section 8(2) similar considerations apply. Where an appellant who has been granted ELR satisfies the IAT that the Secretary of State was, and remains, wrong to deny him refugee status, the IAT must allow the appeal, if it is to avoid permitting a breach of the Convention to continue. The IAT will allow the appeal by proceeding on the hypothesis that, where the appellant has refugee status at the time of the appeal, that state of affairs will subsist at the time that ELR comes to an end. We consider that this is the approach that the appellate tribunal should adopt. Thus, an appeal under section 8(2) will, just as in the case of appeals under the other three sub-sections, raise as the crucial issue the question of whether the appellant enjoys refugee status at the time of the hearing of the appeal.

  1. It cannot be denied that the scheme of section 8 suggests that the purpose of the section is to enable an appellant to challenge a threatened refoulement. We have demonstrated, however, that a section 8 appeal can readily serve as a vehicle for challenging a finding that the appellant is not a refugee. Can it properly be used for this purpose? In our judgment it can.

  1. In the past applicants for asylum, to whom exceptional leave to remain has been granted, have been able to appeal in order to challenge the Secretary of State's refusal to grant them refugee status. In Laftaly v Secretary of State for the Home Department [1993] Imm AR 284 in a carefully reasoned decision, the IAT allowed an appeal under s.14(1) of the Immigration Act 1971. The appellant had applied for variation of leave to remain on the basis that he was entitled to refugee status. His application failed, but he was granted exceptional leave to remain. He appealed to an adjudicator against the refusal to grant him variation of leave on the basis of his claim for asylum. The adjudicator dismissed his claim on the basis that the grant of exceptional leave to remain had effectively provided the appellant with all that he had sought. The IAT allowed his appeal, holding that the grant of exceptional leave to remain was not to be equated with the grant of asylum.

  1. Adan's case involved appeals from asylum applicants: two Somalis who had been granted exceptional leave to remain, one Serb who had been refused leave to enter and one Serb who had been granted six months leave to enter as a visitor. In each case the IAT rejected the applicant's claim on the ground that the applicant did not have refugee status on a true interpretation of Article 1 of the Convention. In the Court of Appeal the decision in the case of each applicant turned on the issue of refugee status. The case subsequently went to the House of Lords. Yet, at no stage was the point taken that the position of the Somalis had been altered by the grant of exceptional leave to remain.

  1. We endorse the approach taken in each of these cases, and decline to extend Massaquoi so as to preclude Mr Osorio's right of appeal. We consider that there are powerful reasons of policy for permitting the use of section 8 by appellants seeking to challenge decisions of the Secretary of State that they are not refugees. We can summarise these as follows:

i) The United Kingdom is a party to the Convention and is thus bound to afford Convention rights to anyone who is a refugee within the meaning of Article 1A. It follows that, where the Secretary of State denies a refugee his Convention rights, the United Kingdom is in breach of its international obligations.

ii) Those Convention rights are extensive: see eg Articles 24, 28, 29, 32 and 33. See also, for example, per Simon Brown LJ in Adan v Home Secretary [1997] 1 WLR 1107 at 1113 and at 1116 (quoted above).

iii) When the Secretary of State gives a non-refugee (or person he has decided is not a refugee) limited leave to remain, that person does not have the benefit of those Convention rights. It follows that refugee status provides the refugee with significant rights when compared with a person denied such status.

iv) It is to be inferred that the United Kingdom does not intend to act in breach of its international obligations, especially since (as already indicated) Lord Keith said in this context in R v Home Secretary ex parte Sivakumaran [1988] AC 958 at 990 that the provisions of the Convention "have for all practical purposes been incorporated into United Kingdom law".

v) In these circumstances the 1993 Act should be construed, so far as possible, on the basis that the United Kingdom intended to comply with its international obligations under the Convention and thus to ensure that those who are refugees within the meaning of Article 1A are entitled to enjoy their Convention rights.

vi) Having created a right of appeal specifically directed to this country's Convention obligations, it would be paradoxical to exclude appeals relating to refugee status.

vii) Refugee status will necessarily be in issue when an appeal is brought under section 8 in circumstances where there is apprehension of refoulement. It would be both illogical and impractical to require challenges of decisions as to refugee status to be brought by judicial review where refoulement is not apprehended.

  1. We observe that section 69 of the 1999 Act, which was not in force at the relevant times, expressly grants a right of appeal to a person who has been refused leave to enter or remain in the United Kingdom "on the basis of a claim for asylum made by him" but who has been granted thereafter limited leave to remain. We have not had our attention drawn to any policy considerations which might have led Parliament in 1999 to be more generous in relation to rights of appeal for asylum seekers than Parliament in 1993.

Conclusion

  1. Our conclusion is that Parliament intended that section 8 would permit appeals in relation to refugee status in so far as the language of the section permitted this. For the reasons that we have given we hold that the language does permit this in the case of Mr Osorio. His appeal will be allowed and his case remitted to the IAT for consideration on its merits.

  1. So far as Mr Saad and Mr Diriye are concerned, their appeals were dismissed on the ground that they could not establish that they would enjoy refugee status when their respective leaves to remain expired. In each case the IAT erred in its approach. It should have considered whether the appellant enjoyed refugee status at the time of his appeal and, if so, allowed his appeal on the premise that that would remain the situation when his leave to remain expired. In these circumstances their appeals will be allowed and their cases remitted to the IAT for reconsideration in the light of this judgment.