McPherson v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Aldous |
| Judgment Date | 19 December 2001 |
| Neutral Citation | [2001] EWCA Civ 1955 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C/2001/1805 |
| Date | 19 December 2001 |
[2001] EWCA Civ 1955
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION
APPEAL TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Aldous
Lord Justice Sedley and
Lady Justice Arden
Case No: C/2001/1805
Ms. Judith Farbey (instructed by Glazer Delmar for the Appellant)
Mr. Michael Fordham (instructed by Treasury Solicitor for the Respondent)
Section 65 of the Immigration and Asylum Act 1999 provides in its first four sub-sections:
"(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 the decision
(2)For the purposes of this Part, an authority acts in breach of a person's human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.
(3) Subsections (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant's entitlement to enter or remain in the United Kingdom, acted in breach of the appellant's human rights.
(4) The adjudicator, or the Tribunal, has jurisdiction to consider the question."
The appellant, Ms. McPherson, came to the United Kingdom from Jamaica, her home country, in November 1990 with six months' leave to enter as a visitor. She had a son by a former partner, Philip Blackwood, and two other children in their late teens. She applied for but was refused indefinite leave to remain, and in January 1992 returned to Jamaica. The following month she re-entered the United Kingdom on a false passport. She was evidently travelling to and fro, because she again entered the United Kingdom from Jamaica in August 1992, and three months later her two teenage children were given leave to enter the United Kingdom as visitors.
Early in 1993 the appellant lost her appeal against the refusal of indefinite leave to remain, and in June was arrested and served with papers as an illegal entrant. There followed applications by the two children for leave to remain as visitors, and an application by the appellant for political asylum which was rejected. Her appeal was not disposed of until July 1997, when it was conceded on her behalf that she had no grounds for asylum.
Within three months the appellant had been charged with serious drugs offences, and in March 1998 she was convicted of supplying a Class A controlled drug and sentenced to four years imprisonment with a recommendation for deportation. While she was serving the sentence the Home Secretary accepted the recommendation and signed a deportation order. The two children were refused indefinite leave to remain, and early in 2000 were served with notices of intention to deport, against which they lodged appeals. The appellant later that year applied for revocation of the deportation order. In November 2000 the Home Secretary refused to revoke it.
It was in this situation that the appellant lodged an appeal under Section 65 of the Immigration and Asylum Act 1999. She claimed, in short, that deporting her to Jamaica would violate her rights under Article 3 and Article 8 of the European Convention on Human Rights. The Article 8 claim related to her relationship with the two children who were with her in the United Kingdom. The Article 3 claim related to her fear of renewed and serious personal violence on the part of Philip Blackwood, who had repeatedly assaulted her in earlier years. The Adjudicator before whom her appeal came, Mrs. S. Charlton-Brown, found in her favour under Article 3 and allowed the appeal. This being so, she made no decision under Article 8. The Home Secretary was given permission to appeal to the Immigration Appeal Tribunal, and his appeal was allowed. The Immigration Appeal Tribunal, however, simply set aside the adjudicator's decision under Article 3; it declined either to entertain or to remit the Article 8 claim for decision. It said:
"Since no determination had taken place in relation to the Article 8 submissions, no findings had been indicated by the Adjudicator and there had been no appeal on that point by the Respondent, we decided that we were not in a position to take that aspect of the matter any further. We had considered with Miss Farbey [counsel for Ms. McPherson] the possibility of a remittal to the same Adjudicator for her to determine the appeal in relation to Article 8 but having referred to the Immigration and Asylum Act 1999 Schedule 4 Part III Para. 22 we have decided that, since there was no appeal against the Adjudicator's determination in that respect we should not make any order in that respect."
Laws LJ. gave permission to appeal on sight of the appellant's two grounds: first, that the IAT had acted unlawfully in refusing to remit the Article 8 case for determination; secondly, that the IAT had been wrong to interfere with the Adjudicator's decision on Article 3.
Mr. Michael Fordham, for the Secretary of State, who had not invited the IAT to take the course it did in relation to the Article 8 claim, very fairly accepts that it should not have done so. The reason is self-evident: if (as the IAT held) the Article 3 claim failed, there remained an untried appeal to the Adjudicator under Article 8. It would take the clearest possible legislative provision to produce a situation in which a party who succeeded at first instance on one of two points forfeited the other one if it was left undecided, even if the first point fell on appeal. In the present case the appellant's lawyers had taken care to give notice by letter that if it became necessary the appellant would rely again on Article 8 in the appeal.
Although the IAT cited no authority for the course it took, or rather declined to take, our attention has been drawn to the two decisions which bear on the problem. In R. v. IAT ex parte Bari [1986] Imm AR 263, Russell J. had to consider whether on an individual's appeal the Secretary of State could without notice or leave recanvass issues of fact on which the appellant had succeeded below. His conclusion that there was nothing in the rules to prevent it was questioned by the IAT in Iqbal v. ECO, Islamabad (Case 8185, 20 August 1991) on the intelligible ground that "if …. it was always open to the Home Office to resurrect at will issues on which the Adjudicator had come to a positive conclusion on evidence given before him, the result would be chaotic". There is force in this, but it is not something which the court is called upon to decide in the present case.
What we are faced with is something more elementary: a case in which an appellant has been denied a decision at either instance on a point which she has legitimately raised and expressly sought to keep alive as her second argument. The question was not whether there had been an appeal on the point or on the Adjudicator's failure to decide it: for obvious reasons there had not been. It was whether, given the success of the Home Secretary's appeal on the Article 3 issue, the Article 8 issue ought now to be determined. Plainly it should have been, and all that remained was for the IAT to give appropriate directions.
What order ought now to follow, however, depends upon the second issue before us, to which I now turn.
The IAT had before it an Adjudicator's decision of high quality, dealing methodically and carefully with the evidence and the issues on the Article 3 appeal. Her self-direction on law was not criticised. What the Adjudicator had gone on to say about protection in Jamaica of women in the appellant's situation was this:
"7.5 The other important point to consider in relation to the appellant's claimed breach of Article 3 rights is of course whether or not the authorities in Jamaica might offer adequate protection against the activities of an individual like Phillip Blackwood. Quite apart from what the appellant has said about him and the attempts of the police to arrest him which proved to be unsuccessful due to his ties within the community and his contacts with the authorities, it appears that the objective evidence does in fact support her case. The Respondent frequently relies on the US State Department Report as objective background information, and I take this as my starting point. The 1999 Country Report for Jamaica, issued by the US Department of State on February 25 th 2000, indicates that whilst the government generally respects the human rights of its citizens, "several problems remained in several areas". It is stated that violence and economic discrimination against women remained problems. There were reports of police sexually harassed women and at page 6 of the report, specifically on the subject of women, it is stated that social and cultural traditions perpetuate violence against women, including spousal abuse. Violence against women is widespread, but many women are reluctant to acknowledge or report abusive behaviour, leading to wide variations and estimates of its extent. The Domestic Violence Act of 1995 came into effect in 1996. It provides remedies for domestic violence, including restraining orders and other non custodial sentencing. … there were anecdotal reports that the police sexually harassed women … "women suffer from economic discrimination and sexual harassment in the work place". As to the police,...
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