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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kanyenkiko v Secretary of State for the Home Department [2003] EWCA Civ 542 (25 February 2003) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/542.html Cite as: [2003] EWCA Civ 542

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		25 February 2003

Tuesday, 25 February 2003
1. LORD JUSTICE PILLLord Justice Laws will give the first judgment.
2. LORD JUSTICE LAWSThis is an appeal brought with permission granted by Schiemann LJ on 22 November 2002 against a decision of the Immigration Appeal Tribunal ("the IAT") notified on 31 July 2002 to the effect that the appellant's appeal to the IAT fell to be treated as abandoned by force of section 58(9) of the Immigration and Asylum Act 1999 ("the 1999 Act").
3. In view of the sole point which arises for our determination I may state the facts shortly. The appellant is a Hutu national of Burundi, born on 22 November 1967. She arrived illegally in the United Kingdom on 31 October 1999 and claimed asylum on 2 November 1999. She asserted that she had suffered a number of violent rapes at the hands of Tutsis in Burundi, from which she had fled on 25 October 1999 after five armed Tutsis went to her house. She came to the United Kingdom, leaving her two children in Tanzania.
4. The Secretary of State did not accept her claimed nationality and refused her asylum claim on 26 March 2001. Removal directions were set in consequence and the appellant appealed against the directions under section 69(5) of the 1999 Act. I will set out the relevant statutory provisions shortly.
5. By agreement, the adjudicator proceeded to determine the question of the appellant's nationality as a preliminary issue. That was apparently on the basis, somewhat obscurely expressed if I may say so, that if the adjudicator found that she was of Burundian nationality:

"... the respondent's rejection of her appeal (and the certificate) fails, because its basis is her credibility."

6. An indication was given at the hearing before the adjudicator (see paragraph 5 of the determination) that it was Home Office policy to grant exceptional leave to remain to Burundian asylum seekers. The adjudicator held that the Home Office had not proved on the balance of probabilities that the appellant was not Burundian (see paragraph 24). On the contrary, the appellant for her part had proved that there was a reasonable likelihood that she was a Burundi national (see paragraph 25). Unfortunately, the adjudicator proceeded in the same determination then and there to decide the substantive asylum issue upon which he had heard no submissions. He decided it together with her linked appeal relating to Article 3 of the European Convention on Human Rights against the appellant. That determination was promulgated on 25 January 2002. On 25 March 2002 the IAT notified a determination granting leave to appeal against the adjudicator's decision. However on 22 February 2002 the Secretary of State granted the appellant exceptional leave to remain for four years. The grant of leave is contained in the supplementary bundle which has been put before us today. The hearing before the IAT was listed for 13 May 2002. On 24 April 2002 the appellant put in an application "to vary the grounds of appeal" so as to rely on section 69(3) of the 1999 Act instead of section 69(5). In order to understand why this was done and the IAT's response to the application which has led to the appeal to this court, it is necessary now to set out the relevant statutory provisions:

"58(9) A pending appeal under any provision of this Part other than section 69(3) is to be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom.

59(1) A person who is refused leave to enter the United Kingdom under any provision of the 1971 Act may appeal to an adjudicator against-

(a) the decision that he requires leave; or

(b) the refusal.

(2) A person who, on an application duly made, is refused a certificate of entitlement or an entry clearance may appeal to an adjudicator against the refusal.

61. A person may appeal against a decision to vary, or to refuse to vary, any limited leave to enter or remain in the United Kingdom which he has if, as a result of that decision, he may be required to leave the United Kingdom within 28 days of being notified of the decision.

63(1) A person may appeal to an adjudicator against-

(a) a decision of the Secretary of State to make a deportation order against him under section 5(1) of the 1971 Act as a result of his liability to deportation under section 3(5) of that Act; or

(b) a refusal by the Secretary of State to revoke a deportation order made against him.

65(1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision unless he has grounds for bringing an appeal against the decision under the Special Immigration Appeals Commission Act 1997.

66(1) This section applies if directions are

given for a person's removal from the United

Kingdom-

(a) on the ground that he is an illegal entrant;

(b) under section 10; or

(c) under the special powers conferred by Schedule 2 to the 1971 Act in relation to members of the crew of a ship or aircraft or persons coming to the United Kingdom to join a ship or aircraft as a member of the crew.

(2) That person may appeal to an adjudicator

against the directions on the ground that on the facts of his case there was in law no power to give them on the ground on which they were given.

(3) This section does not entitle a person to appeal while he is in the United Kingdom unless he is appealing under section 65 or 69(5).

67(1) This section applies if directions are given under the 1971 Act for a person's removal from the United Kingdom-

(a) on his being refused leave to enter,

(b) on a deportation order being made against him, or

(c) on his having entered the United Kingdom in breach of a deportation order.

(2) That person may appeal to an adjudicator against the directions on the ground that he ought to be removed (if at all) to a different country specified by him.

69(1) A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to an adjudicator on the ground that his removal in consequence of the refusal would be contrary to the Convention.

(2) If, as a result of a decision to vary, or to refuse to vary, a person's limited leave to enter or remain in the United Kingdom, he may be required to leave the United Kingdom within 28 days of being notified of the decision, he may appeal against the decision to an adjudicator on the ground that such a requirement would be contrary to the Convention.

(3) A person who-

(a) has been refused leave to enter or remain in the United Kingdom on the basis of a claim for asylum made by him, but

(b) has been granted (whether before or after the decision to refuse leave) limited leave to enter or remain,

may, if that limited leave will not expire within 28 days of his being notified of the decision, appeal to an adjudicator against the refusal on the ground that requiring him to leave the United Kingdom after the time limited by that leave would be contrary to the Convention.

(4) If the Secretary of State-

(a) has decided to make a deportation order against a person under section 5(1) of the 1971 Act, or

(b) has refused to revoke such an order,

that person may appeal to an adjudicator against the decision or refusal on the ground that his removal in pursuance of the order would be contrary to the Convention.

(5) If directions are given as mentioned in section 66(1) for the removal of a person from the United Kingdom, he may appeal to an adjudicator on the ground that his removal in pursuance of the directions would be contrary to the Convention."

7. Some of these rights of appeal are limited in various ways. Thus for example section 60(1) provides that a person is not entitled to appeal, under section 59 on the ground that he has a right of abode in the United Kingdom unless he holds a United Kingdom passport or a certificate of entitlement. Section 62 imposes limitations on the right to appeal conferred by section 61. Section 64 imposes limitations on the section 63 right of appeal so that for example section 64(1) disentitles a person from appealing under section 63 if the ground of the decision to deport him was that his deportation was conducive to the public good as being in the interest of national security. Section 70 sets limits to the rights of appeal under section 69.
8. So the matter came before the IAT on 13 May 2002. The IAT was faced with the appellant's application to vary the grounds of appeal. It was clearly made to avoid at least the apparent effects of section 58(9). There would of course be nothing to vary if section 58(9) had had effect so that the extant section 69(5) appeal fell to be treated as abandoned upon and by virtue of the grant of exceptional leave to remain for four years on 22 February 2002. The IAT stated, rightly in my judgment (paragraph 7):

"The only issue before the Tribunal is whether the appellant's rights are caught by Section 58(9) of the Immigration and Asylum Act 1999 and the appeal was to be treated as abandoned under the provisions of that clause."

The IAT proceeded to hold (paragraphs 12 and 13) that the appeal indeed fell to be treated as having been abandoned under section 58(9) and so they dismissed it.

9. The only question on this appeal before us is whether the IAT was right to do so. I must confess to some puzzlement as to the basis on which Mr Scannell has put forward his argument. He accepts, as I understand him, that the appellant's section 69(5) appeal indeed fell to be treated as abandoned by force of section 58(9), at any rate at some stage. He appeared to indicate that his only concern was that procedurally his client should have had a section 69(3) appeal substantively entertained on 13 May 2002. But whatever procedural course might have been taken in the circumstances which eventuated, the only point that arises in this court is whether or not there was anything to vary or amend when this matter went to the IAT on 13 May 2002.
10. In submitting that there was an issue remaining for the Tribunal despite the apparent bite of section 58(9) Mr Scannell placed some reliance upon the decision of this court in Saad [2002] Imm AR 471, in which the judgment of the court was delivered by the Master of the Rolls. The question in that case was whether section 8 of the Asylum and Immigration Appeals Act 1993 ("the 1993 Act") enabled a person to challenge a decision by the Secretary of State that he was not a refugee even though the person in question had been accorded exceptional leave to remain. This court held that it did. The policy reasons which in the court's view supported that conclusion place heavy emphasis, if I may say so, upon the United Kingdom's international obligations arising under the 1951 Refugee Convention (see paragraph 72 of the judgment). I need not, with deference, narrate any passage from the judgment nor indeed section 8 of the 1993 Act. The 1993 Act was replaced by the 1999 Act; the 1993 Act, however, as I understand it, contained no analogue of section 58(9).
11. Reliance is also placed in Mr Scannell's skeleton argument on the "starred" decision of the IAT in Abdillahi given on 5 February 2002. In that case the appellant was served with a notice granting him exceptional leave, but the notice did not expressly state that leave to remain as a refugee was refused. The appellant sought to appeal under section 59(3). The adjudicator held that there was nothing to appeal against, for want of a notice indicating that leave as a refugee was refused. However the IAT, encouraged by the decision in Saad "to adopt a purposive approach to the construction of 69(3)", held (paragraph 10) that refusal of refugee status was implicit in the notice, so that the appellant's section 69(3) appeal was live.
12. There is also the starred IAT decision in Zeqaj (4 February 2002) in which the IAT allowed an appeal notice to be varied so as to rely on section 66(2) instead of section 69(5) of the 1999 Act. However the IAT's decision in that case was overturned in this court ([2002] EWCA Civ 1919). The court accepted Miss Giovannetti's submission for the Crown, recorded at paragraph 8 of Latham LJ's judgment thus:

"She submits that the final phrase in section 66(2), namely 'there was in law no power to give them on the ground on which they were given' restricts the appeal to a consideration of whether or not any of the three preconditions to the giving of directions set out in section 66(1) exists. Otherwise, she submits, those words are surplusage. She further submits that the tribunal's construction of section 66(2) will open the door to argument in cases where a particular country which is not the country of nationality has been deliberately chosen, which would not appear to have been Parliament's intention."

That submission was distinctly accepted by this court in paragraph 17 of Latham LJ's judgment. Their other Lordships, Lawrence Collins J and Thorpe LJ, agreed without adding reasoning of their own.

13. Mr Scannell relies on these cases in order to support the proposition that it is possible in an appropriate case for an adjudicator or the IAT to allow a notice of appeal to be amended so that a statutory ground within Part 4 of the 1999 Act may be relied on notwithstanding that a different statutory ground was originally put forward. But none of these cases engaged section 58(9). That provision was, however, considered by the IAT in Diriye [2002] UK IAT 04402. There, the appellant had appealed against a removal notice on asylum grounds, so presumably under section 69(5). Exceptional leave was granted. The IAT said this:

"7. Ms Webber suggests that to treat an asylum appeal in general as necessarily abandoned by the subsequent grant of leave is not appropriate. She submits that it is contrary to the intention of the international Conventions and, in particular, contrary to the way they were interpreted in Saad, Diriye and Osorio v Secretary of State for the Home Department [2002] INLR 34. She submits that the underlying ratio of that decision is that every asylum appeal under s 8 of the 1993 Act essentially asks the same question. Whether the appeal is against refusal of leave to enter, refusal to vary leave, a decision to deport or a decision to give directions for removal of an illegal entrant, the question posed by the asylum grounds is, Is the Appellant a refugee at the present time? It was indeed the principal issue before the Court of Appeal in those cases whether the appeal under s 8(2) of the 1993 Act should be treated differently, and the Court of Appeal decided that it should not: because, in essence, the question is the same. Applying that reasoning, Miss Webber points out that if the Appellant begins an appeal under some other subsection of s 69 and then is granted leave but wishes to persist in an asylum appeal, there is no purpose in treating the first appeal as abandoned and giving a new right of appeal under s 69(3). It would be, she says, more economical and it would be entirely in line with the Court of Appeal's decision in Saad, Diriye and Osorio if the old appeal were converted into an appeal under s 69(3).

8. Despite Ms Webber's best endeavours, we find ourselves unable to read s 58(9) in that way. There are, in our view, two principal objections and we take the opportunity of apologising if our reading of the statute appears literal. In our view, we have little other way of reading the statute unless we are shown that the literal reading conflicts with some other principle and, for reasons that we shall give, we have not been shown that.

9. The first reason is that s 69 clearly treats the various types of appealable decision as separate. A refusal of leave to enter, a decision to vary or to refuse to vary, or, under certain circumstances, to grant leave, a decision to make a deportation order or to refuse to revoke one, and a decision giving removal directions, each separately give rise to a right of appeal to an Adjudicator. In each case, there is an immigration decision notified in accordance with the Notices Regulations. In each case there would be a notice of appeal against that decision commencing an appeal which in due course might be heard by an Adjudicator or the Tribunal. We are unable to fit into that scheme Ms Webber's suggestion that where leave to remain is granted, an appeal which was expressly founded on the absence of such leave is converted into an appeal against a later decision granting leave.

10. The second reason is that s 58(9) is in the terms in which it is. We see no basis for reading it as though the exception was not of s 69(3) but of s 69. It appears to us that if Ms Webber were right the position would be that a pending appeal would not be abandoned if it were an asylum appeal of any sort, because if it were an asylum appeal at all then it would continue under the guise of a s 69(3) appeal. That, it appears to us, cannot be right."

14. As I understood him Mr Scannell submitted that while section 58(9) had effect so that the appellant's section 69(5) appeal fell to be treated as abandoned upon notice being given in February 2002 of exceptional leave to remain, nevertheless it was not in fact treated as abandoned until the IAT took the decision it did. That would seem to my mind to suggest that the extant appeal under section 69(5) is not under section 58(9) actually to be treated as abandoned until and unless that is effected by some executive act, such as for instance by a distinct decision of the IAT. For my part I cannot understand how that should be so. It seems to me that the terms of section 58(9) are entirely unequivocal. Its application is triggered by the fulfilment of two conditions: (1) that the person in question has a pending appeal brought under any provision of Part 4 of the 1999 Act other than section 69(3); (2) that the person is granted, while that appeal is pending, leave to enter or remain in the United Kingdom. If these two conditions are met the pending appeal is then and there treated as abandoned. They are met in this case. In my judgment this section 69(5) appeal fell to be treated as abandoned as from 22 February 2002. There was therefore nothing that could be varied or amended when the matter came before the IAT on 13 May 2002.
15. I should indicate that in the course of argument the possibility was canvassed by Arden LJ that section 58(9) might only bite if, in addition to there being an extant appeal and the grant of leave to enter or remain, it was also the fact that no decision had been taken which remained effective relating to the appellant's immigration status. With great respect I cannot for my part see that that is right. Once the two conditions specified in section 58(9) are met the extant appeal is treated as abandoned, whatever else might have happened. Moreover there will, as I see it, in every case be a decision affecting the appellant's immigration status, since that will be the genesis of the extant appeal which falls to be treated as abandoned. There was also some discussion in the course of argument as to whether a pre-emptive notice of appeal under section 69(3) might be put in by an appellant before a decision to grant exceptional leave to remain was actually made in his or her case. If that were possible then such an appeal, having by definition been brought under section 69(3), would survive the effect of section 58(9). However it seems to me that that is not a viable possibility under the statutory scheme. Section 69(3) only grants a right of appeal at all to a person who:

"(b) has been granted (whether before or after the decision to refuse leave) limited leave to enter or remain."

So a purported pre-emptive appeal of the kind here suggested would not in fact constitute an appeal by any person having rights under section 69(3) at the time the notice is given.

16. I should add some further observations. I am not for my part distinctly holding that there are no circumstances in which an appeal brought under one provision of Part 4 might not for good reason be treated by the adjudicator or IAT as proceeding under some other provision. This court's decision in Zeqaj does not I think go so far, being limited to a consideration of the construction of section 66(2). The question may call to be argued in this court on another day. In the present case, as I have said, there was nothing to amend or vary because the appeal had in effect been abandoned before the application to vary was made.
17. Mr Scannell referred to the Government White Paper "Fairer, Faster and Firmer - A Modern Approach to Immigration and Asylum", which was published before the 1999 Act was passed. There are a number of references there to the desirability of a single comprehensive or one-stop appeal. The same theme is encountered in the explanatory notes to the 1999 Act and the official report of the special standing committee on the Bill which became the Act. I have considered all these materials. None of them, in my judgment, begins to justify a construction of section 58(9) which, in my view, will be at variance from the sense of its clear words.
18. We were referred also to some of the provisions contained in the Nationality Immigration and Asylum Act 2002. I find it necessary only to say that it is of some little interest that by section 104(4) of that Act there is re-enacted, though within the framework of a somewhat different scheme, a provision essentially to the same effect as section 58(9).
19. I cannot see with respect anything inconsistent between the result at which I would arrive in this case and this court's decision in Saad. In fact the court in Saad referred to 69(3) of the 1999 Act, although it was dealing in substance with the Act of 1993 (see page 73 of the judgment).
20. In the present case, as Miss Giovannetti has expressly acknowledged in her skeleton and as is plainly the case, the appellant has a right of appeal under section 69(3) and that right so far as I am aware is intact. In my judgment there is nothing in the result arrived at by the Tribunal here which is repugnant to this country's obligations under the 1951 Refugee Convention or the statutory scheme contained in Part 4 of the 1999 Act.
21. For the reasons I have given I would dismiss this appeal.
22. LADY JUSTICE ARDENI agree, for the reasons given by my Lord Laws LJ. In my judgment the meaning of section 58(9) is plain. It begins with the words:

"A pending appeal under any provision of this Part other than section 69(3) ..."

The meaning of "pending appeal" used in those words is to be found in section 58(5), namely, an appeal under this part is to be treated as pending during the period beginning when notice of appeal is given and ending when the appeal is finally determined withdrawn or abandoned.

23. There was no notice of appeal in this case under section 69(3) at the date of the grant of the exceptional leave to remain. I agree that that is the critical date for the reasons my Lord has given. As the applicant was granted exceptional leave to remain the final conditions of section 58(9) was fulfilled. She was, of course, implicitly refused refugee status at the same time; but I agree with Laws LJ that it is inevitable where an asylum appellant is granted such leave. I do not think that we can read in words such, as in the end of subsection (9), "but not if the applicant is also seeking asylum and exceptional leave to remain is given and she would wish to appeal under section 69(3)."
24. In those circumstances I do not consider that it is open to a court to look at Hansard or the explanatory notes for the White Paper. Mr Scannell relied on the very general purpose stated in the White Paper of reducing the number of appeals available to any single applicant; but the White Paper simply does not deal with the sophisticated set of facts that have arisen here. Mr Scannell also relies on the fact that the White Paper refers to the intention to provide a single right of appeal in asylum cases. As I see it, that is only intended to be the general aim and it again does not deal with this particular point.
25. There is reference to the streamlining of appeals. But that is certainly achieved by the automatic abandonment of an appeal as of the grant of exceptional leave to remain, and it is at least arguable that that was the policy applicable on this set of the facts. We cannot say. We can only give effect to the clear wording of 58(9) as we find it to be.
26. Finally, I canvassed with Mr Scannell the possibility of a precautionary notice of appeal under 69(3) at the same time as the appellant appealed against the refusal of the adjudicator to find that the appellant was a refugee. I did so in order to see whether there was a practical solution to the difficulties in this case; but I am satisfied that as the ground of appeal had not then arisen it would not be a proper appeal on that basis, notwithstanding the definition of pending appeal. That solution also provides the answer to the further point that I put to Mr Scannell, that the Tribunal could have entertained an application to amend the notice of appeal with retrospective effect, ie to a point in time when the notice of appeal was not to be treated as abandoned, just as the court may in civil cases permit amendment to pleadings after judgment has been given. That point has not been fully argued. It seems to me that the same point would arise; namely, that at the date as of which the ground would have to be inserted the ground of appeal would not have arisen.
27. Accordingly, I too, would dismiss this appeal.
28. LORD JUSTICE PILL I agree with both judgments.
(Appeal dismissed; no order for costs save that there is to be detailed assessment of the appellant's publicly funded certificate).