MY (Disputed Somali nationality)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY,PRESIDENT |
| Judgment Date | 02 June 2004 |
| Neutral Citation | [2004] UKIAT 174 |
| Court | Immigration Appeals Tribunal |
| Date | 02 June 2004 |
[2004] UKIAT 174
IMMIGRATION APPEAL TRIBUNAL
The Honourable Mr Justice Ouseley (President)
Mr D K Allen (Vice President)
Mr A Jordan (Vice President)
For the Appellant: Mr Manjit Gill QC, instructed by Z Ali Dhanji, Solicitors
For the Respondent: Mr J Singh, Home Office Presenting Officer
MY (Disputed Somali nationality) Somalia *
This is an appeal against the determination of an Adjudicator, Mr I J French, promulgated on 25 th September 2001. The Appellant claims to be a citizen of Somalia, a member of the Bajuni tribe. He arrived in the United Kingdom on 3rd June 2000 and claimed asylum immediately on arrival at Heathrow. Following three interviews, his claim was refused by a letter dated 26 th March 2001. The Secretary of State refused his claim on the basis that he was not a Somali. The Secretary of State said, however, that he would be giving directions for the Appellant's removal to Somalia but solely in order to enable the Appellant to appeal, and that if his appeal was not upheld, the Secretary of State would seek to establish the Appellant's true identity.
The Secretary of State also sent a Notice signed by an Immigration Officer entitled “ Notice of Refusal of Leave to Enter” dated 29 th March 2001. After stating that leave to enter had been refused, the Notice continued under the heading of “ Removal Directions”: “ I have given/propose to give directions for your removal by a scheduled service at a time and date to be notified to(country/territory) SOMALIA”. It said that the Appellant was entitled to appeal “ against the decision to refuse you leave to enter on the ground that your removal in pursuance of these directions” would be contrary to the Geneva Convention. The footnote directed attention to section 69(1) of the Immigration and Asylum Act 1999.
The Adjudicator concluded that:
“… even to the lower standard the Appellant has not established that he is of Somalian Nationality but on the evidence before me I have not been able to draw any conclusions as to his correct nationality.
“Bearing in mind my findings as to the Appellant's credibility and that he is not of Somalian Nationality I did not find that he has established that he is a refugee within the meaning of the Refugee Convention. Nor do I find that there are substantial grounds for believing his evidence with regard to the human rights aspect of the matter. That is not at all to say that I believe that the Appellant should be returned to Somalia. Such a course would be quite wrong as he is not a national of that country, the more so bearing in mind the objective evidence relating to the conditions there.”
The appeals against the asserted breaches of the two Conventions were dismissed. Nothing more was said about the removal provisions. The grounds of appeal to the Tribunal took issue with the finding that the Appellant was not Somali, and leave was granted because of the passages set out above. The Tribunal determination of 19 th February 2002 was brief. It pointed out that if it was said that the Appellant was not a Somali, the “ removal directions”, as they were described, were incorrect and outside the provisions of paragraph 8(1)(c) of Schedule 2 to the Immigration Act 1971; the type of problem which arose had been dealt with by the Tribunal in its decision in Zecaj. It allowed the Appellant's appeal.
The matter was remitted to the Tribunal on 15 th November 2002 upon the Secretary of State's appeal to the Court of Appeal, following written submissions only and an indication by the presiding Lord Justice. Although there is no judgment, it appears to have been agreed that the Tribunal erred in its approach to the so-called “ removal directions”, because the appeal was brought only under section 69(1) and not under section 69(5) of the 1999 Act. The Tribunal had also relied wrongly on its decision in Zecaj, which was distinguishable. Indeed, shortly after, that decision was overruled by the Court of Appeal anyway, [2002] EWCA Civ 1919, [2003] Imm AR 298.
Section 69 deals with the Refugee Convention. Section 69(1) and (5) provide:
“69(1) A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to an adjudicator on the ground that his removal in consequence of the refusal would be contrary to the Convention.
(5) If directions are given as mentioned in section 66(1) for the removal of a person from the United Kingdom, he may appeal to an adjudicator on the ground that his removal in pursuance of the directions would be contrary to the convention.”
The other provisions of section 69 deal with limited leave or where a deportation order or decision has been made.
The Appellant claims also to be appealing under the ECHR provisions, which we accepted. Section 65(1) and (5) provide:
“65 (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, racially discriminated against him or acted in breach of his human rights may appeal to an adjudicator against that decision. …”
(5) If the adjudicator, or the Tribunal, decides that the authority concerned
(a) racially discriminated against the Appellant; or
(b) acted in breach of the Appellant's human rights,
the appeal may be allowed on the ground in question.”
Section 66(1) to (3), which was relied on as an interpretative aid, provides:
“66(1) This section applies if directions are given for a person's removal from the United Kingdom—
(a) on the ground that he is an illegal entrant;
(b) under section 10; or
(c) under the special powers conferred by Schedule 2 to the 1971 Act in relation to members of the crew of a ship or aircraft or persons coming to the United Kingdom to join a ship or aircraft as a member of the crew.
(2) That person may appeal to an adjudicator against the directions on the ground that on the facts of his case there was in law no power to give them on the ground on which they were given.
(3) This section does not entitle a person to appeal while he is in the United Kingdom unless he is appealing under section 65 or 69 (5).”
Section 59(3) deals with the position where a person refused leave to enter is appealing against that decision, and is served with removal directions or with Notice “ that any directions which may be given for his removal … will be … to a country or one of several countries specified in the Notice.”
Section 59(4) entitles the recipient to “ object” to the country to which he would be removed, or to the country or countries specified in the Notice. But the section contemplates that such an objection to removal must specify the alternative country to which he is to be removed, if he is to be removed at all.
Section 67 deals with removal directions given under the 1971 Act, where a person has been refused leave to enter. It provides for an appeal to an Adjudicator against the directions on the ground that, if he is to be removed, it should be to a different country, but again he has to specify to which country. There are other restrictions on that right of appeal.
Paragraphs 21(1) and (2) of Schedule 4 to the 1999 Act are relevant to the scope of or restrictions on the appeals under sections 69 and 65. They provide:
“21(1) On an appeal to him under Part IV, an adjudicator must allow the appeal if he considers—
(a) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case, or
(b) if the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently, but otherwise must dismiss the appeal.
(2) Sub-paragraph (1) is subject to paragraph 24 and to any restriction on the grounds of appeal.”
Paragraph 22(6) applies the same provision to the Tribunal.
Paragraph 10 of Schedule 4 to the 1999 Act provides:
“If a person in the United Kingdom appeals under section 59 or 69(1) on being refused leave to enter, any directions previously given by virtue of the refusal for his removal from the United Kingdom cease to have effect, except in so far as they have already been carried out, and no directions may be so given while the appeal is pending.”
There is a suspensory provision in paragraph 20 in relation to section 65 appeals.
Finally, paragraph 8(1)(c) of Schedule 2 to the 1971 Immigration Act, deals with the countries for which removal directions may be set when a person is refused leave to enter:
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“(i) a country of which he is a national or citizen; or
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(ii) a country or territory in which he has obtained a passport or other document of identity; or
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(iii) a country or territory in which he embarked for the United Kingdom; or
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(iv) a country or territory to which there is reason to believe that he will be admitted.”
By paragraph 10(2), the Secretary of State, instead of giving removal directions in which the carrier is specified, may give removal directions to those countries “ in accordance with arrangements to be made by him”.
Mr Manjit Gill QC for the Appellant pursued the grounds of appeal originally raised, but his main points were rather wider. He contended that in this sort of case, where the Secretary of State did not accept the asserted nationality of the Appellant and issued, as he described them, “ removal directions” to a country of which he said that the Appellant was not a national, those directions were not in accordance with the law as set out in paragraph 8(1)(c) of Schedule 2 to the 1971 Act and had not been issued pursuant to the proper exercise...
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