KP v Secretary of State for the Home Department (Deportation - Refusal of entry - Dismissed) [2011] UKSIAC 72/2009 (28 March 2011): Did an appellant who had been excluded from the UK on public interest grounds have a right of appeal to the Special Immigration Appeals Commission (SIAC)? This was the question in this case. The court held there was no right of appeal beyond the usual right to have the courts check that a government decision had been made fairly and rationally.
The Kurdish appellant (KP) claimed asylum in the UK on 25 May 2004, on the basis of a well-founded fear of persecution if he returned to Iran. KP had been distributing Kurdistan Democratic Party literature in Iran between 2002 and 2004. He had fled to Turkey when the authorities discovered his activity. The SSHD’s initial rejection of asylum was overturned on appeal, and KP was granted indefinite leave to remain (ILR) in the UK.
At some point before 5 November 2005 KP left the UK. The SSHD gave notice to KP and the UNHCR that his refugee status was cancelled. The time period to appeal expired such that KP could only appeal from outside the UK.
On 8 December 2008 the SSHD decided to exclude KP from the UK because he had engaged in terrorist activity with Ansar Al Islam. KP was served with papers in Sulaymaniyah, Iraq, informing him that his ILR in the UK was revoked. KP appealed, denying having been involved with Ansar al Islam, or being an Iraqi national. His appeal could only be to SIAC because the cancellation of refugee status was made under section 97(3) of the Nationality, Asylum and Immigration Act 2002. The statute which set up SIAC, however, did not allow for an appeal.
The appellant argued he had a right of appeal to SIAC for two reasons, notwithstanding the 2002 Act. Section 2 of the 1993 Asylum and Immigration Appeals Act provides that no law can go against the Refugee Convention. Cancellation of refugee status without a right of appeal would go against the Convention. Further, the principle of equivalence (that the remedies for breaches of EC law should be no less favourable than remedies for breaches of similar UK law) meant that the appellant was entitled to the same rights of appeal for cancellation of refugee status as for refusal of refugee status.
Both KP’s arguments were rejected. On the 1993 Act, appeals can be brought on the grounds that removal of the appellant from the UK would breach the UK’s obligations under the Refugee Convention. However, unless the certification made by the SSHD can be proved to have been unfounded, no right of appeal lies from abroad. The SSHD’s decision was well-founded.
On equivalence, in UK law to appeal a rejected asylum application is not to appeal the decision not to recognise someone as a refugee. It is to appeal the decision to remove that person from the UK. A true comparison of UK and EC law showed there were no more favourable remedies available under domestic law, compared to EC law.
KP had no right of appeal to SIAC. The decision to exclude him from the UK for his terrorist connections stood.
A tribunal had jurisdiction to hear an immigration decision which carried no right of in-country appeal, until that point was taken. Only once the point was taken would it operate in bar of the proceedings. The Secretary of State for the Home Office (SSHO) could not contend that there had been no jurisdiction to entertain a subsequent appeal in the first place.
Ms Pengeyo and Mr Anwar had been granted leave to remain to study at a college. It was later removed from the register of training and education providers for issuing bogus qualifications. Ms Pengeyo found a new provider following Home Office advice. Mr Anwar had already changed colleges because of the substandard teaching.
Ms Pengeyo and Mr Anwar were subsequently notified they were being removed from the UK for obtaining leave to remain by deception (Immigration Act 1971, s. 24A). Both were acquitted of deception on appeal. However, on reconsideration the appeals were dismissed on the ground that the immigration judge had lacked jurisdiction, there being no right of in-country appeal under s.92(1) of the Nationality, Immigration and Asylum Act 2002.
Any apparent absolute bar to justice, such as that contained in s. 92(1), had to be scrutinised carefully. The Court of Appeal in the instant case held that the Asylum and Immigration Tribunal had had jurisdiction to embark on the hearing, notwithstanding that neither appellant had left the UK. There was a distinction to be drawn between constitutive and adjudicative jurisdiction (Carter v Ahsan (No.1) [2007] UKHL 51, 1 AC 696). The constitutive jurisdiction of a tribunal was the power to embark upon trying a specific issue. Adjudicative jurisdiction was the power to issue judgment. Whether a foreign national had obtained leave to remain by deception was constitutive. Adjudicative jurisdiction depended on whether the appellant had left the UK. Until the adjudicative jurisdiction had been determined, the tribunal had jurisdiction to hear the appeal. The ostensible bar to justice contained in the 2002 Act was no bar unless the point was taken. Once the out-of-country point was taken by the SSHO, however, it would operate in bar of the proceedings.
Given that the point would only apply if taken, to take it in order to prevent the exposure of a shameful decision to criminalise and remove an innocent person, without evidence or opportunity to answer, was a serious abuse of power. The powers of one of the great offices of state had been so misused as to rob the SSHO’s decisions of legal authority (Board of Education v Rice [1911] AC 179; the CCSU case [1985] AC 374, 410). The appeals were formally dismissed, but only because the SSHO had withdrawn at the last minute a decision which ought never to have been made.
In Mr Adjo’s case there was no right of appeal because there was no immigration decision for the purposes of rule 353 of the Immigration Rules, against which to appeal, under s. 82(1) of the 2002 Act. Mr Adjo’s human rights claim had been rejected previously but this would not constitute an appealable immigration decision. A human rights claim would not convert the refusal of an immigration claim into an appealable decision, nor would it generate an independent right of appeal.
Ruling on Immigration Appeal Right & Fresh Claims Procedures:
On the 31st of July 2010 the Court of Appeal in the case of R on the application of ZA (Nigeria) v SSHD: R on the application of SM (Congo) v SSHD [2010] EWHC 718 (Nigeria) upheld the earlier decision of the Administrative Court confirming where the Secretary of State for the Home Department (SSHD) has not made an “immigration decision” as provided within the meaning of Section 82 of the Nationality, Immigration and Asylum Act 2002 (NIAA) there is no further right of appeal once the claiming asylum seeker has exhausted his or her appeals.
However, asylum seekers are permitted to submit new material evidence to support their application which may amount to a fresh claim within the criteria under paragraph 353 of the Immigration Rules. This rule provides new submissions must be “significantly different” in order to amount to a fresh claim meaning the new material must be material not already considered in the original claim and that this new material with the previous material when considered together provides a realistic chance of success for the claim.
In this particular case the appellants ZA & SM who had entered the UK illegally and refused asylum, later made further submissions on the basis of their Article 8 rights under the ECHR (right to family life) as both the appellants had formed relationships and family ties in the UK. However, these ties were made after the refusal decision was given.
The SSHD rejected the further submissions as mere repetition of the original claim and not amounting to a ‘fresh claim’ under the criteria of paragraph 353. The SSHD argued this decision was not an “immigration decision” which would give the appellants’ a right of appeal as Section 82 of the NIAA provides an “immigration decision” means:
(a) refusal of leave to enter the UK, (b) refusal of entry clearance, (c) refusal of a certificate of entitlement, (d) refusal to vary a person’s leave to enter or remain in the UK, (e) variation of a person’s leave to enter or remain in the UK,(f) revocation of indefinite leave to enter or remain in the UK, (g) a decision that a person is to be removed from the UK, (h) a decision that an illegal entrant is to be removed from the UK, (i) a decision that a person is to be removed from the UK, (j) a decision to make a deportation order, (k) refusal to revoke a deportation order.
The Court of Appeal upheld the SSHD’s decision as rational and dismissed the appellants’ judicial review of the decision based on irrationality.
This is despite the SSHD recognising that the appellants had established a family life in the UK within the meaning of Art.8 ECHR. This is because the interference with family life outweighed the right of the UK to control immigration and to remove individuals which did not qualify for leave to remain in the UK.
In essence this judgement confirms no further in-country appeal is to be permitted once an asylum seeker’s appeal fails against an “immigration decision” making their refusal of entry into the UK and removal from the UK lawful.
At Ergen & Sharif, our experienced lawyers can assist you whether you are making an initial or fresh application, whether you have been refused and wish to exercise a right of appeal or where you have been denied a right of appeal.
For further information on how we can help, please contact us on 0207 569 3035 or alternatively email us at info@ergensharif.co.uk
Article: Kani Areef
Date: 06/08/2010