MS (Palestinian Territories) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | SIR JOHN DYSON SCJ |
| Judgment Date | 16 June 2010 |
| Neutral Citation | [2010] UKSC 25 |
| Date | 16 June 2010 |
| Court | Supreme Court |
[2010] UKSC 25
Lord Saville
Lady Hale
Lord Mance
Lord Collins
Sir John Dyson SCJ
Appellant
Stephen Knafler QC
Duran Seddon
(Instructed by Refugee and Migrant Justice)
Respondent
Tim Eicke
John-Paul Waite
(Instructed by Treasury Solicitors)
SIR JOHN DYSON SCJ (delivering the judgment of the court)
The issue
Section 82(1) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") provides that where an "immigration decision" is made in respect of a person he may appeal to the Asylum and Immigration Tribunal, now the First-Tier Tribunal (Immigration and Asylum) ("the Tribunal"). Section 82(2) and (3A) define the meaning of an "immigration decision" and include at section 82(2)(h):
"a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c77) (control of entry: removal)".
We shall refer to the Immigration Act 1971 as "the 1971 Act". The issue that arises on this appeal is whether it is possible to challenge by way of an appeal an immigration decision within the meaning of section 82(2)(h) on the ground that the "country" or "territory" of destination stated in the notice of the decision is not one that would satisfy the requirements of para 8(1)(c) of Schedule 2 to the 1971 Act should removal directions to that country or territory in fact be given.
The facts
The appellant was born in Gaza in 1985. In 1990, he left Gaza and went to Libya where he lived until about 2002. He then spent time first in Italy and then in France before arriving clandestinely in a lorry in the United Kingdom in April 2007. Some time after his arrival in the United Kingdom, he claimed asylum and humanitarian protection. On 25 April 2007, he was served with a notice of illegal entry and of his liability to be detained under para 16(2) of Schedule 2 to the 1971 Act pending a decision whether or not he was to be given removal directions and be removed in pursuance of such directions.
By a letter dated 24 May 2007, the Secretary of State rejected the appellant's asylum and human rights claims. The letter was accompanied by a Form IS151B entitled "Decision to remove an illegal entrant/person subject to administrative removal under section 10 of the Immigration and Asylum Act 1999 ["the 1999 Act"]—Asylum/Human Rights Claim refused". The notice said: "a decision has now been taken to remove you from the United Kingdom". It gave details about the appellant's right of appeal. Against the rubric "REMOVAL DIRECTIONS" appeared the following:
"If you do not appeal, or you appeal and the appeal is unsuccessful, you must leave the United Kingdom. If you do not leave voluntarily, directions will be given for your removal from the United Kingdom to Palestine National Authority."
The appellant appealed. By a determination promulgated on 19 July 2007, Immigration Judge Lloyd dismissed his appeal on both the asylum and human rights issues that he had raised. She also dismissed his appeal in so far as it was based on the contention that the immigration decision made on 24 May was not "in accordance with the law" within the meaning of section 84(1)(e) of the 2002 Act. The argument advanced was that the decision was not in accordance with the law because removal directions could not lawfully be given to remove the appellant to the Palestinian Territories pursuant to Schedule 2 to the 1971 Act, since it was not a country or territory to which there was reason to believe that he would be admitted within the meaning of para 8(c)(iv) of Schedule 2 to the 1971 Act.
The immigration judge accepted the evidence given on behalf of the appellant by Elizabeth Griffith, a case worker with the Refugee Legal Centre (as it then was). Her evidence was that she had been told by a Mr Sumara at the Palestine General Delegate Office that a Palestinian could not return to the Palestinian Territories without an ID card. An ID card was proof that the bearer was resident in either Gaza or West Bank. Once in possession of an ID card, a Palestinian could apply for a passport/travel document. She said that she explained the appellant's circumstances to Mr Sumara. These were that upon leaving Gaza, the appellant had lost contact with his family and that to the best of his knowledge, he did not have a birth certificate and had no other Palestinian identity papers. Based on this information, Mr Sumara said that it was "very unlikely" that the appellant would be able to return to the Palestinian Territories. Mr Sumara later said that it would be "impossible" for the appellant to return in view of the fact that he had no birth certificate, no living parents and no ID.
The appellant sought a reconsideration of the immigration judge's determination by the Tribunal under section 103A of the 2002 Act. He did not challenge the immigration judge's findings in relation to his appeal on asylum or human rights grounds. The sole basis for his challenge was that the immigration judge had materially erred in law in failing to accept his argument that the immigration decision was not "in accordance with the law" within the meaning of section 84(1)(e) of the 2002 Act. On 17 August 2007, Senior Immigration Judge Jordan made an order for reconsideration.
On the reconsideration, the Tribunal (Mr Ockelton, Deputy President, Designated Immigration Judge O'Malley and Immigration Judge Parkes) concluded that the immigration judge had not made any material error of law and ordered her decision to stand. The appellant's appeal against this decision was dismissed by the Court of Appeal (Rix, Scott Baker and Jacob LJJ): [2009] EWCA Civ 17; [2009] Imm AR 3.
The statutory framework
Section 82(1) of the 2002 Act provides that where an "immigration decision" is made in respect of a person, he may appeal to the Tribunal. Section 82(2) defines "immigration decision" as meaning:
"(a) refusal of leave to enter the United Kingdom.
(b) refusal of entry clearance,
(c) refusal of a certificate of entitlement under section 10 of this Act,
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,
(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,
(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,
(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c33) (removal of person unlawfully in United Kingdom),
(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c77) (control of entry: removal),
(ha) a decision that a person is to be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave),
(i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family),
( ia) a decision that a person is to be removed from the United Kingdom by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (c77) (seamen and aircrews),
(ib) a decision to make an order under section 2A of that Act (deprivation of right of abode),
(j) a decision to make a deportation order under section 5(1) of that Act, and
(k) …."
Section 84(1) specifies the grounds on which an appeal under section 82(1) against an immigration decision must be brought. They include:
"(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;
………………
(e) that the decision is otherwise not in accordance with the law;
………………
(g)that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights."
Section 120 provides:
"(1) This section applies to a person if –
(a) he has made an application to enter or remain in the United Kingdom, or
(b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him.
(2) The Secretary of State or an immigration officer may by notice in writing require the person to state—
(a) his reasons for wishing to enter or remain in the United Kingdom,
(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and
(c) any grounds on which he should not be removed from or required to leave the United Kingdom."
Schedule 2 to the 1971 Act provides:
"8.
(1) Where a person arriving in the United Kingdom is refused leave to enter, an immigration officer may, subject to sub-paragraph
(2) below–
(a) give the captain of the ship or aircraft in which he arrives directions requiring the captain to remove him from the United Kingdom in that ship or aircraft; or
(b) give the owners or agents of that ship or aircraft directions requiring them to remove him from the United Kingdom in any ship or aircraft specified or indicated in the directions, being a ship or aircraft of which they are the owners or agents; or
(c) give those owners or agents directions requiring them to make arrangements for his...
To continue reading
Request your trial
-
RJ (India) v Secretary of State for the Home Department
...The suggestion that it also or alternatively applies to something else is simply mystifying. Moreover MS (Palestinian Territories) [2010] 1 WLR 1639, to which Mr Roe for the Secretary of State drew our attention, makes it clear —see in particular paragraph 23 of the Supreme Court's decision......
-
Upper Tribunal (Immigration and asylum chamber), 2021-05-20, DA/01472/2013
...necessary for immigration demands the Tribunal to assume that removal would be effected, relying on MS (Palestinian Territories) v SSHD [2010] 1 WLR 1639 at Turning to the damages award Mr Goodman submitted that the appellant would not have access to the £35,000 awarded given that he had to......
-
Re JR 38's Application (In the matter of an application by JR 38 for Judicial Review)
...structured in the manner suggested by Baroness Hale in H (H) and others v Deputy Prosecutor of the Italian Republic of Genoa and others [2010] UKSC 25 at paragraph 30. “….the court would be well advised to adopt the same structured approach to an article 8 case as would be applied by the St......
-
Upper Tribunal (Immigration and asylum chamber), 2015-03-16, AA/01519/2009 & Ors.
...period” in a particular case.” The respondent further relies on the decision of the Supreme Court in MS (Palestinian Territories) v. SSHD [2010] UKSC 25 submitting the appellants were seeking to ‘dissolve the distinction’ between an appeal against a removal decision and judicial review of l......