R (BA (Nigeria) and another) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Longmore,Lord Justice Lloyd |
| Judgment Date | 26 February 2009 |
| Neutral Citation | [2009] EWCA Civ 119,[2010] EWCA Civ 60 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 February 2009 |
| Docket Number | Case No: 1. C4/2008/1562 & No.2. C4/2008/1559 |
[2009] EWCA Civ 119
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE BLAKE
No.1 CO/11595/2007 & No.2 CO/5121/2007
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
Lord Justice Sedley
Lord Justice Longmore and
Lord Justice Lloyd
Case No: 1. C4/2008/1562 & No.2. C4/2008/1559
Mr Raza Husain and Ms Raggi Kotak (instructed by Messrs Turpin & Miller) for the 1 st Appellant
Mr Raza Husain and Mr Ronan Toal (instructed by Messrs Wilson & Co) for the 2 nd Appellant
Ms Elisabeth Laing QC (instructed by Treasury Solicitors) for the Respondents
Hearing date: Tuesday 10 February 2009
Lord Justice Sedley:
Although the facts of these two cases differ, they raise a single issue of law: in the absence of a fresh asylum or human rights claim, is the right of appeal against the Home Office's refusal to revoke a deportation order exercisable from within the United Kingdom?
It is possible to crystallise the issue in this way for two main reasons. First, it has been common ground, and was accepted by Blake J at first instance, that a refusal to revoke a deportation order is an immigration decision within s.82 of the Nationality, Immigration and Asylum Act 2002 and so carries a right of appeal. Secondly, in neither case has the claim been certified under s.94 as clearly unfounded: such a certificate, provided it survived any challenge by way of judicial review, would bar the proposed appeals. Each claimant therefore has a viable extant appeal against a refusal to revoke a deportation order.
BA is a Nigerian national married to a British citizen with whom he has four children. He has lived here since 1988, first as a student and then by virtue of a grant of indefinite leave to remain on the basis of his marriage. He was, however, served with a deportation decision after his early release on licence from a 10-year sentence for drug importation. His appeal to the AIT on human rights grounds against the decision failed, and a deportation order was made. The Home Secretary agreed to consider representations on his behalf seeking revocation of the deportation order. BA by his counsel accepts that these representations did not amount to a fresh human rights claim. The Home Secretary for her part accepts that the new claim is not without foundation and has not sought to certify it as such. When nevertheless she declined to revoke the deportation order, BA's lawyers issued the judicial review claim which is now before us on appeal, contending that he was entitled to conduct his appeal against the refusal from within the United Kingdom.
PE, a national of Cameroon, entered the United Kingdom clandestinely and sought asylum. He did not appeal against the Home Office's refusal, and removal directions were given. But before they had been implemented he was sentenced to 12 months' imprisonment for having a forged passport and using it to obtain work. In consequence, the removal directions were supplanted by a deportation order. Against this PE appealed on refugee convention and human rights grounds. The appeal was dismissed, but he sought reconsideration by the Home Office. This was refused for reasons which were held by Blake J to be flawed: his case was held by Blake J to be based on further material which was “fresh, credible and … not available to be called at the original appeal hearing”. The judge consequently quashed the decision that there was no fresh asylum or human rights claim and remitted it for redetermination by the Home Secretary. The consequence, if it is found to be a fresh claim, is that PE will either succeed on it or, if it is considered but refused, will have an in-country appeal against the refusal to revoke the deportation order. It is only if it is not found to be a fresh claim that he will need to fall back on the claimed entitlement to an in-country appeal against the refusal to revoke the deportation order which is in issue in this appeal.. But at that point, if it comes, he too will be affected by the issue to which this appeal relates.
In both cases, however, Blake J concluded that the right of appeal against a refusal to revoke the material deportation order, if it was otherwise well made, could only be exercised from abroad.
Section 92 of the 2002 Act makes the following provision:
“(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.
(2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f)[, (ha)] and (j).
(4) This section applies to an appeal against an immigration decision if the appellant –
(a) has made an asylum claim, or a human rights claim, while in the United Kingdom, ……”
Among the classes of decision ranked by s.82(2) as immigration decisions are (j) a decision to make a deportation order and (k) a refusal to revoke such an order. S.92(2) makes the former, but not the latter, appealable in country. But where, as here, the appellant has made an asylum claim or a human rights claim while in the United Kingdom, any immigration decision, including a refusal to revoke a deportation order, is on the face of it appealable in-country by virtue of s.92(4)(a). The ground of appeal in each case will necessarily be that set out in s.84(1)(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.”
A human rights claim and an asylum claim are defined by s.113 of the 2002 Act:
“asylum claim”
means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention,
“human rights claim”
means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c42)(public authority not to act contrary to Convention) as being incompatible with his Convention rights, ……
Nobody has been able to tell us what purpose was intended to be served by requiring claims to be made at a place designated by the Secretary of State, but no such place has ever been designated and, as will be seen, the provision has now been prospectively repealed.
Blake J, in a full and careful judgment, [2008] EWHC 1140 (Admin), concluded that the first argument advanced by the claimants—that on a purely literal construction of s. 92(4)(a), any historic asylum or human rights claim gave an in-country or suspensive right of appeal—failed because it would lead to an inexplicable and arbitrary distinction between individuals who were similarly placed. It followed that, although not spelt out, there had to be a nexus between the immigration decision against which the appeal was directed and the content of the initial claim for protection. Keene LJ refused permission to appeal against this much of the decision, and the application in this regard has not been renewed.
The issue we have to decide formed the claimants' fallback case. It was submitted that, if such a nexus was needed, it manifestly existed in each of the present cases. The claims now made by both appellants were human rights claims; that made by PE was also an asylum claim; both fell within the meaning ascribed to those words by s.113 of the 2002 Act. So much was accepted. The rest, in the submission of Raza Husain for the claimants, followed from the plain words of s.92(1) and (4)(a): there was an in-country right of appeal. For the Home Secretary, Elisabeth Laing QC accepted, as she continues to do, that this is literally so; but she contended, and Blake J on consideration accepted, that an informed interpretation (to use Bennion's classification) showed that only an out-of-country appeal was intended to be available where, as here, there was no fresh claim. Mr Husain responds that there is no justification for glossing the plain words of the statute, not least because in 2006 Parliament enacted an amendment which has the very effect for which Miss Laing contends but which has not been brought into force.
We have the advantage of an excellent exposition of each side's case in the skeleton arguments of counsel and in the judge's reasons for preferring the Crown's submission. The two arguments do not, however, meet head-on. Miss Laing's starts, in effect, where Mr Husain's ends. The question is whether the former is sufficient to roll the latter back.
What Mr Husain says is this. Given what he now accepts is the requisite nexus between the reasons advanced for revoking the deportation order and the initial claim for protection, the 2002 Act sets out Parliament's chosen control mechanism. This consists of the detailed range of powers given by ss. 94 and 96 to certify (subject to judicial review) that a claim is clearly unfounded. Such a certificate stifles an in-country appeal, but...
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