MS (Uganda) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Toulson,Lord Wilson,Lady Hale,Lord Hughes,Lord Neuberger |
| Judgment Date | 22 June 2016 |
| Neutral Citation | [2016] UKSC 33 |
| Date | 22 June 2016 |
| Court | Supreme Court |
[2016] UKSC 33
Lord Neuberger, President
Lady Hale, Deputy President
Lord Wilson
Lord Hughes
Lord Toulson
Appellant
Michael Biggs
(Instructed by Migrants Resource Centre)
Respondent
James Eadie QC Mathew Gullick (Instructed by The Government Legal Department)
Heard on 12 May 2016
(with whom Lord Neuberger, Lady Hale, Lord Wilson and Lord Toulson agree)
The issue in this case concerns the true meaning and ambit of the additional right of appeal specific to asylum claims which was given by section 83 of the Nationality, Immigration and Asylum Act 2002 ("NIAA 2002"). That section has now been repealed by section 15(3) of the Immigration Act 2014 and replaced by a wider right of appeal. It remains, however, in force for the present appellant, and perhaps for some others. The Court of Appeal gave permission, before the Immigration Act 2014 had been passed, for the present appeal to be brought to this court: [2014] 1 WLR 2766.
The principal right of appeal against immigration decisions made by the Home Secretary was, in NIAA 2002, given by section 82. Stripped of inessentials, a right of appeal to an immigration judge was given by that section in respect of a variety of listed immigration decisions. Importantly for present purposes, those included the principal decisions which will lead to removal from this country, such as a decision to remove, or a refusal to vary leave to remain which will leave the claimant without it. A claim for asylum, that is to say a claim to be a refugee entitled to the benefit of the Refugee Convention, was not amongst the list of immigration decisions and did not therefore attract the section 82 right of appeal.
However, if an appeal under section 82 existed because there was also an immigration decision of one of the kinds listed, the claimant was expressly entitled by section 84(1)(g) to raise the argument that his removal would put this country in breach of its obligations under the Refugee Convention. By this somewhat circuitous but effective route a right of appeal against refusal of asylum in practice existed under the NIAA 2002, as under previous legislation, if there was an immigration decision to appeal under section 82. Generally, there was. But it might happen that there was not if, for example, when the asylum claim was refused by the Home Secretary, leave to remain was granted. In that event, the continued presence of the claimant would be lawful and there would be no occasion for an appeal under section 82, under which the question of refugee status could be determined. The issue of refugee status is significant, because some legal consequences flow from it if it is held to exist. It was not that uncommon for those whose asylum claims failed nevertheless to be granted limited leave to remain; a simple example was unaccompanied minors who were and are very often granted leave to remain until they reach the age of majority, in order to avoid removing children who have no sufficient family or other support: see TN (Afghanistan) v Secretary of State for the Home Department [2015] UKSC 40; [2015] 1 WLR 3083.
Section 83, however, provided a specific right of appeal against a refusal of an asylum claim, in specified circumstances. It said:
"83. Appeal: asylum claim
(1) This section applies where a person has made an asylum claim and —
(a) his claim has been rejected by the Secretary of State, but
(b) he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).
(2) The person may appeal to the Tribunal against the rejection of his asylum claim."
The appellant is a citizen of Uganda. On 27 September 2010 he was granted limited leave to remain in the United Kingdom as a student until 30 April 2012. Before that time had expired, he applied for a variation of his leave to remain on the grounds that he should be accepted as a refugee. The basis of that claim was that his brother was suspected of being involved in terrorist activities directed against the Ugandan Government, and he claimed that by reason of his relationship and the suspicion that he might be involved with his brother, he faced a real risk of persecution if he were to be returned. On 7 February 2012 the Secretary of State rejected the claim and refused to vary the limited leave to remain, but she did not curtail it. Thus the appellant had, at the time that his asylum claim was refused, about 11 weeks or so left of his limited student leave to remain.
The appellant appealed to the First-tier Tribunal, where his claim to refugee status was refused on the merits without any question of jurisdiction being raised and apparently on the unspoken assumption that the appeal was brought under section 82. When, however, he pursued his case to the Upper Tribunal, contending that the First-tier decision was perverse, the jurisdiction point was taken before Upper Tribunal Judge Clive Lane. He held that there had never been any right of appeal, and for that reason declined to investigate the case further. On further appeal, the Court of Appeal came to the same conclusion.
The question is a shortly-stated one of statutory construction. The rival arguments were developed on both sides with exemplary elegance and concision. As often happens, the brevity with which the issue can be identified does not reflect the intrinsic difficulty of resolving it.
The appellant's case runs as follows.
i) Section 83 gives a general right of appeal to those whose claim to refugee status has been refused.
ii) The limitation upon that right of appeal constituted by subsection (1)(b) should be broadly rather than narrowly construed, since refugee status is a matter of significance and engages this country's international obligations to permit a properly qualified claimant to exercise the rights secured by the Convention. Nor should a construction be adopted which restricts the appellant's right of access to the tribunal.
iii) The natural meaning of section 83 is that any grant(s) of leave to remain totalling more than 12 months bring the claimant within the section and afford him the right of appeal. It matters not whether the grant of leave to remain came before or after the refusal of the asylum claim. Indeed, a grant or grants which had expired before the asylum claim was made would also do so.
iv) The alternative construction advanced by the Secretary of State and upheld by the Court of Appeal, namely that subsection (1)(b) applies only to grant(s) of leave to remain made after the refusal of the asylum claim would be tantamount to making the right of appeal hinge on the leave to remain decision rather than, as it is clearly designed to do, on the decision to refuse asylum.
The Secretary of State supports the conclusion of both the Upper Tribunal and the Court of Appeal that the true construction of section 83 requires the grant(s) of leave to remain to be either contemporaneous with or to post-date the refusal of the asylum claim. That, she contends, is also consistent with the purpose of the statute which she asserts is to provide an appeal to those who have no section 82 appeal and will not have such in the reasonably near future. She also suggests that the wider structure of the NIAA supports this construction, in particular sections 78, 94 and 83A, which are considered below.
As the submissions were developed in oral argument it became apparent that there are four possible constructions of section 83:
(i) any grant(s) of leave to remain totalling more than 12 months bring the claimant within the section, whenever they occurred and whether or not they had expired before the asylum claim was made and determined; this was the appellant's primary case;
(ii) grant(s) of leave to remain totalling more than 12 months bring the claimant within the section providing such leave is still current at the time of the determination of the asylum claim; this was the appellant's alternative position;
(iii) grant(s) of leave to remain bring the claimant within the section providing that such leave totalled more than 12 months counting from the date of refusal or later grant, and whether the grant(s) were made before or after refusal; this was the alternative contention of the Secretary of State if her principal one ((iv) below) failed;
(iv) grant(s) of leave to remain totalling more than 12 months bring the claimant within the section if but only if they (and all of them if more than one) are either contemporaneous with or post-date the determination of the asylum claim; this was the Secretary of State's primary case and was adopted by the Upper Tribunal and the Court of Appeal.
At one time in the past the Secretary of State contended in cases concerning section 83 that the wording used demanded that there be a nexus between the refusal of the asylum claim and the grant of more than 12 months' limited leave. In other words, it was contended that the one must be logically connected to the other. That contention was rejected by Beatson J, as he then was, at first instance in AS (Somalia) v Secretary of State for the Home Department [2011] EWHC 627 (Admin). In that case, AS had arrived as an unaccompanied minor. He had made two asylum claims. The first had been rejected in November 2006 but he had been granted limited leave to remain for approximately four months until he was 18. Subsequently, he applied to extend that leave, and in addition made a second claim to be adjudged a refugee. The second asylum claim was never determined but the claimant was, three years after it was made, granted indefinite leave to remain. Thus there was no more than 12 months' leave associated with the...
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Sala (Efms: Right of Appeal)
...of permitting an amendment to affect, in general, the construction of legislation as originally enacted (see also MS (Uganda) v SSHD [2016] UKSC 33 at [28] per Lord Hughes with whom the other Justices 72 The present case is not one in which Parliament amended the EEA Regulations 2006 so as......
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Upper Tribunal (Immigration and asylum chamber), 2016-08-19, [2016] UKUT 411 (IAC) (Sala (EFMs: Right of Appeal))
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