JM v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date04 October 2006
Neutral Citation[2006] EWCA Civ 1402
Docket NumberC5/2006/1034(C)
Date04 October 2006

[2006] EWCA Civ 1402




Royal Courts of Justice


London, WC2


Lord Justice Waller

Lord Justice Laws

Lord Justice Leveson


[AIT No. AS/04660/2004]

The Secretary of State for The Home Department






These proceedings have taken a somewhat tortuous procedural course. They concern a starred decision of the Asylum and Immigration Tribunal ("AIT") , promulgated on 26 January 2006, though the hearing had taken place on 16 August 2005. The case was before the AIT by way of a reconsideration, pursuant to transitional statutory provisions following the grant to the appellant of permission to appeal against an earlier determination of the adjudicator made on 21 May 2004. The adjudicator had dismissed the appellant's appeal against the Secretary of State's refusal on 9 February 2004 to vary his leave to enter the United Kingdom.


The unusual underlying facts are very crisply summarised in the skeleton argument prepared by Mr Raza Husain for the appellant as follows:

"2. The appellant is a Liberian national who, until he left the country, was an Associate Justice and the second most senior judge of the Liberian Supreme Court. In May 2003 he gave judgment in a constitutional motion concerning election law and senatorial tenure. His judgment was against the interests of powerful senators and leading parties of President Charles Taylor's National Patriotic Party ("NPP") . The appellant received death threats and intelligence reports confirmed that his life was indeed at risk. All the judges who sat on the case left the country. The Chief Justice fled to Ghana. The appellant left Liberia, staying with the Chief Justice for five days and claimed protection in the United Kingdom. The Secretary of State rejected his claim on the basis that circumstances had changed and risks had dissipated. The adjudicator dismissed the appellant's appeal, and the AIT upheld the adjudicator's determination."


I should add that the appellant had arrived in the United Kingdom on 3 July 2003 when he was granted six months leave to enter as a visitor. His daughter is here and had invited him to come to the United Kingdom in April 2003 before the judgment in the constitutional case was given. Charles Taylor stood down from office in Liberia on 11 August 2003 and, on 29 August 2003, the appellant applied to the Secretary of State for protection under the Refugee Convention and the European Convention on Human Rights (the ECHR) , contending among other things that, although Charles Taylor was in exile in Nigeria, the petitioning senators in the constitutional motion in which the judgment had been given were still in Liberia. Before the adjudicator, the appellant's appeal was supported by a letter from the United Nations High Commissioner for Refugees dated 8 April 2004. In addition to his case for asylum under the Refugee Convention, the appellant asserted before the adjudicator that his rights under ECHR article 8 were engaged because of his attachment to his grandchild and his daughter, the child's mother, in this country.


However, the merits of the article 8 case were canvassed, it seems, without prejudice to a submission made on the appellant's behalf on what, in the grounds of appeal to the Immigration Appeal Tribunal, was described as a preliminary issue. The contention was that since no removal directions had been set, the appellant was in no danger of imminent removal; the appeal was only against the Secretary of State's refusal to vary the appellant's leave, which of itself did not entail any removal. Accordingly, it was said the appellant did not then face any violation of his Convention rights and therefore the ECHR claim could not and should not be determined. It was being marked up to protect the appellant's interests for the future. The adjudicator apparently rejected this preliminary submission but gave no reason in his substantive determination for having done so. He dismissed the ECHR claim on its merits, stating at paragraph 40:

"To the extent that there would be an interference [I interpolate, that is with the appellant's family life] I am satisfied that it would be proportionate."


As for the asylum claim, the adjudicator held that the appellant could return to Monrovia, where he would be safe (see also paragraph 40) .


On 29 September 2004 the Immigration Appeal Tribunal granted permission to appeal to itself on two grounds: one, the adjudicator's "failure to deal" with the submission that the ECHR claim could not, in the events which had happened, be determined, and two, a submission that the appellant's daughter's evidence had not been taken into account by the adjudicator on Article 8. She had given oral evidence before him, but the adjudicator did not record or refer to the fact in his determination.


On 1 July 2005 the appellant's representatives sought to amend his grounds for reconsideration (as his appeal had now become: see AITCA (Commencement no.5 and Transitional Provisions) of Order 2005, paragraph 5(i) (b) and 5(ii) ) . It was desired to contend by amendment, among other things, that the adjudicator had failed to consider risks arising from the conduct of non-state actors, that he had misunderstood the appellant's evidence about whether he would be safe in Monrovia, and that he had misdirected himself on the issue of what was referred to as "executive capture of the judiciary". In its determination of 26 January 2006 the AIT held that it had no power to permit amendment of the grounds. That was by force of rule 62(7) of the Asylum and Immigration (procedure) Rules 2005 which provides:

"Where -

"a) a party has been granted permission to appeal to the Immigration Appeal Tribunal against an adjudicator's determination before 4 th April 2005, but the appeal has not been determined by that date; and

"b) by virtue of a transitional provisions order the grant for permission to appeal is treated as an order for the Tribunal to reconsider the adjudicator's determination,

"the reconsideration [should] be limited to the grounds upon which the Immigration Appeal Tribunal granted permission to appeal."


April 2005 was the date when the material transitional provisions took effect.


On 19 April 2006 the AIT in the person of the deputy president, Mr Ockelton, granted permission to appeal to this court against the ruling as to the effect of rule 62(7) . This, however, is not the issue which falls for our determination today. Following certain earlier directions, I directed on 15 June 2006 that the rule 62(7) appeal should await judgment in two other linked appeals by name Ali and Mucaj, in which the same issues relating to the rule had been raised.


We are concerned with the first ground on which permission to appeal to the Immigration Appeal Tribunal had been granted, that is the question whether the ECHR claim could lawfully be determined by the adjudicator in the absence of an imminent threat of removal from the United Kingdom. On this issue, the appellant's stance before the AIT was radically different from that taken in his submission to the adjudicator and in the ground of appeal which he had obtained permission to argue, as the AIT noted at paragraph 29 of the determination of 26 January 2006. They said:

"What he now seeks to argue is the reverse of what was argued in the grounds: He seeks to establish that in an appeal against a decision which does not give the Secretary of State any entitlement to remove an individual without making a further appealable decision, an appellant has a right to raise human rights grounds as though the second decision had already been made."


However the AIT continued at paragraph 30:

"For the reasons we have given at some length earlier in this determination, it is not open to the Appellant to change his ground of challenge in that way. [I interpolate, that of course is a reference to their ruling on the rule 62(7) point.] We consider the issue on the basis on which it was put in the grounds."


The AIT concluded, in the event, that a human rights claim was not justiciable on a variation of leave appeal because in such a case the appellant's removal was not imminent, and the case was not within section 84(1) (g) of the Nationality Immigration and Asylum Act 2002 ("the 2002 Act") which conferred the relevant jurisdiction on the AIT and to which I shall turn shortly. On this issue, which may be called the human rights issue, Mr Ockelton refused permission to appeal to this court on 19 April 2006.


In his grounds placed before the AIT, which Mr Ockelton was considering, and his grounds placed before this court, the appellant seeks to make good the position he sought to take before the AIT, namely that a human rights claim is justiciable before the AIT notwithstanding that the executive decision under appeal is not a decision to remove the appellant from the United Kingdom and does not necessarily entail any such decision.


For his part, the Secretary of State seeks to support the appellant's position on this issue; indeed he sought leave to cross-appeal in relation to it. I granted permission to the Secretary of State to cross-appeal on the human rights issue on 8 June 2006. However, because he and the appellant were, so to speak, singing in unison...

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