Pardeepan v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 2002 |
| Date | 01 January 2002 |
| Court | Immigration Appeals Tribunal |
Immigration Appeal Tribunal
Collins J (President) C M G Ockelton Esq Deputy President G Warr Esq
1. Selvaratnam Pardeepan who, as his name suggests, is a Sri Lankan Tamil, appeals against the decision of an adjudicator given as long ago as September 1998 to refuse his asylum application. Before considering the merits of the appeal we have to deal with an issue which has been raised whether the Tribunal is entitled to take account of the Human Rights Act and to permit the appellant to raise the issue that to remove him would be not only a breach of the Geneva Convention but also a breach of the Human Rights Act.
2. The Human Rights Act came into force on 2 October, as did the Immigration and Asylum Act 1999. The relevant provision, for our purposes, of the 1999 Act is section 65. That section gives a specific new right of appeal on human rights grounds to the Immigration Appellate Authority, that is to say, the adjudicators and the Tribunal. Section 65 has two parts to it. First, it permits an appeal under section 65(1) if a person alleges that an authority has, in taking a 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. Secondly, sub-section 3 enables what we may describe as the human rights point, to be raised in any existing appeal before an adjudicator or the Tribunal.
On the face of it, once that came into effect, it should have enabled the adjudicator or the Tribunal to consider human rights in respect of the appeal before him, no matter when the decision to remove, or to refuse leave to enter, the effect of which would be removal, had been made.
3. However, the order which brings into force the relevant part of the 1999 Act, which includes section 65, provides otherwise. The order in question is the Immigration and Asylum Act 1999 (Commencement no 6 Transitional and Consequential Provisions) Order 2000, no 2444, which was made on 11 September of this year. It is a sad fact that there has been considerable difficulty in obtaining before this week copies of that order, and the immigration appellate authority was wholly unaware of what was proposed by the Home Office and had been preparing itself for human rights day on the assumption that it would be applying human rights as from last Monday. However, article 3 of the Order provides by paragraph 1(a), subject to schedule 2, that the new appeal provisions (that includes section 65) are not to have effect in relation to events which took place before 2 October 2000. Events are defined in article 4.2 in this way:
For the purposes of Article 3 an event takes place when (a) a notice is served (b) a decision is made or taken, (c) directions are given, and (d) a certificate is issued.
In the circumstances of a case such as this it is (b), the making of a decision.
4. Notwithstanding that, schedule 2 paragraph 1(7) provides:
Section 65 Human Rights Appeals is not to have effect where the decision under the Immigration Acts was taken before 2 October 2000.
We asked Mr Thompson who has appeared on behalf of the Secretary of State whether he could explain the need for those two provisions, and other than a reference to belt and braces he was unable to help us. We should say before going further that we are indeed most grateful both to him and to Mr Walsh who has appeared on behalf of the appellant for their assistance, given the short notice in respect of the point which we are considering now, which is by no means an easy one.
5. The result of the Commencement Order, and the provisions which we have just cited, seem to us to be clear beyond any doubt. They prevent the Tribunal from considering human rights issues in any existing appeal, because sub-section 3 of section 65 cannot be relied on in relation to decisions made before 2 October 2000, and of course before adjudicators, and more particularly before the Tribunal there are at present, and are likely to be probably until about the end of the year, only decisions made before 2 October. We have, of course, a particular case in front of us, and as Mr Thompson has rightly reminded us, we are strictly concerned only with the circumstances of that case. However, we are well aware that the immigration appellate authority in general, and we are referring more particularly here to adjudicators, have some doubts whether they should consider human rights issues at present and it seems therefore not only sensible but necessary that the Tribunal should seek to give guidance as to what is the correct approach. Accordingly, in hearing argument on this point, we have considered the matter far more widely than merely the facts...
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Shah v. Secretary of State for Social Security [2002] EWCA Civ 285 CIS 6608 1999
...me to the starred decision of the Immigration Appeal Tribunal in Selvaratnam Pardeepan v Secretary of State for the Home Department [2000] INLR 447. The decision is consistent with my conclusion, but was based on the terms of legislation that only applies to immigration and asylum adjudicat......
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R (Kariharan) v Secretary of State for the Home Department; R (Kumarakuruparan) v Secretary of State for the Home Department
...in principle, appeal under section 65." See also the understanding and reasoning of the Immigration Appeal Tribunal in Pardeepan v. SSHD [2000] INLR 447, paras. 13 and 24 In my view, and putting aside for the moment, the effect of the words "relating to" in section 65, there is force, in a......
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Devaseelan v Secretary of State for the Home Department
... ... It is perhaps arguable that human rights issues could be raised in a pending appeal to an Adjudicator or the Tribunal under section 7 (1) (b) of the 1998 Act: but in Pardeepan (00 TH 2414) the Tribunal accepted an undertaking by the Secretary of State that such individuals would be allowed to raise human rights issues if threatened with removal after the dismissal of their appeal. Their position is thus assimilated to those whose appeals ceased to be pending before 2 ... ...
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IH (s.72; ‘Particularly Serious Crime’)
...1971 (see Odelola v SSHD [2008] EWCA Civ 308 and AM (Ethiopia) and others v SSHD [2008] EWCA Civ 1082). 86 In Pardeepan v SSHD [2000] INLR 447 Collins J speaking for the IAT stated (at [7]) that: “…we would need a very great deal of persuasion indeed that we had the power to disregard any l......