R (Kagabo) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pitchford |
| Judgment Date | 12 February 2009 |
| Neutral Citation | [2009] EWHC 153 (Admin) |
| Docket Number | Case No: CO/10589/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 February 2009 |
[2009] EWHC 153 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: The Honourable Mr Justice Pitchford
Case No: CO/10589/2007
Hugh Southey(instructed by Refugee Legal Centre) for the Claimant
Jonathan Auburn (instructed by Treasury Solicitor) for the Defendant
Hearing date: 3 February 2009
Mr Justice Pitchford:
The issue raised by this claim, for which permission was granted by Owen J on 11 April 2008, is whether section 78(1) Nationality, Immigration and Asylum Act (NIAA) 2002 acts to prevent the Secretary of State from setting directions for removal of an applicant who has applied for an extension of time to appeal an adverse immigration decision.
Academic nature of the claim
In the claimant's case the issue is academic since, following the challenge to the removal directions, the Asylum and Immigration Tribunal (AIT) granted the claimant's application for an extension of time, heard the substantive appeal and dismissed it. Furthermore, the Secretary of State argues, I should not embark upon a consideration of the argument because the claimant, notwithstanding the acceptance of jurisdiction by the Immigration Judge, was not entitled to an in-country right of appeal under section 92 NIAA 200I am, however, persuaded that the legal issue is of sufficient general practical importance that I should consider the arguments and reach a decision. In my view, the issue has gathered further importance since the Secretary of State has abandoned the policy of giving automatic suspensory effect to an application for judicial review of an immigration or asylum decision. This applies particularly to “fresh claim” representations rejected by the Secretary of State. I shall consider section 92 at the conclusion of this judgment.
Claimant's immigration history
Immigration Judge Wilson, in his determination promulgated on 4 November 2008, found that the claimant is a native of Uganda born on 10 April 1979. She claimed to have entered the UK in March 2000 and six days later claimed asylum as a citizen of Rwanda under the age of 18. At the time of her asylum claim the claimant was in possession of a forged Rwandan passport.
On 8 May 2000 the Secretary of State refused the claimant's asylum claim but, unaware of the deception, granted exceptional leave to remain (ELR) until 8 May 2004.
On 23 April 2004 the claimant sought an extension of leave. No decision was made and, by the operation of section 3C Immigration Act 1971, her leave continued.
On 25 July 2007 the claimant was called for interview. The subject was her Ugandan passport issued on 5 July 1999 identifying her as Janet Ayebele. That passport was genuine. It was stamped with a visa to enter the UK. Her entry date was 8 August 1999 when she was aged 20. The claimant had applied for the visa in Uganda before embarking for the UK. It followed she had deployed the false Rwandan passport to facilitate her applications for asylum and leave to remain.
On 25 July 2007, following her interview, the claimant was issued with a notice informing her of her liability to be removed under section 10(1)(b) Immigration and Asylum Act 1999 as a person who had used deception in seeking leave to remain. She was informed that she had an out of country right of appeal under section 82(1) NIAA 2002.
On 21 November 2007 removal directions were issued to the claimant informing her that she would be removed on 27 November to Uganda. On 21 November 2007 the Refugee Legal Centre purported to give notice appealing the decision of the same day to remove her. The notice foundered because the directions it challenged did not comprise an immigration decision under s.82(2)(g) NIAA 2002.
The mistake was realised and on 27 November 2007 the claimant sought to appeal out of time the immigration decision of 25 July 2007, and on 28 March 2008 she was granted an extension of time. Also on 27 November 2007 this judicial review claim was issued. Under the SSHD's then policy the issue of the judicial review claim suspended removal.
Having challenged the Secretary of State's decision to remove her in the face of what was claimed to be a genuine asylum claim, the claimant then abandoned the asylum claim and launched an Art 8 appeal on the grounds of her marriage on 20 April 2008 to a British citizen of Rwandan origin and the birth of their child in August of the same year.
The Immigration Judge found that the immigration decision was correct; in the Immigration Judge's view it was the only decision available in the light of the claimant's deception. All the facts material to the Art 8 claim post-dated the claimant's application to the Tribunal to appeal out of time. He concluded “The actions to find a family life in the last 10 months is a flagrant attempt… to engage the terms of Art 8…so as to prevent the applicant's departure from the UK…I find that having regard to the need to maintain immigration control and the extent of the deception used in gaining entry…it is a proportionate decision…for her to be required to leave the UK.”
The dispute
Mr Southey submits on behalf of the claimant that from the moment she gave notice to appeal the decision of 25 July 2007 out of time her appeal was 'pending' within the meaning of section 82(1) NIAA 2002. That being the case the Secretary of State could not, by the operation of section 78, remove the claimant from the UK.
It is submitted by Mr Auburn, on behalf of the Secretary of State, that the lodging of notice to appeal out of time does not create a 'pending' appeal. If that is the correct analysis there is no statutory prohibition on removal.
It is common ground that section 82 NIAA 2002 gave a right of appeal to the claimant. In its relevant parts it provides as follows:
“(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.
(2) In this Part “immigration decision” means…
(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, ….
(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 (c.33)(removal of person unlawfully in United Kingdom),….
There is no doubt that section 82(1) entitled the Claimant to appeal against the decisions made on 25 July 2007.
The claimant served her notice of appeal under section 82 of the 2002 Act on 27 November 2007.
Section 78 NIAA 2002 creates the relevant prohibition:
“(1) While a person's appeal under section 82(1) is pending he may not be-
(a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or
(b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts.
(2) In this section “pending” has the meaning given by section 104.”
Section 104 provides (as amended with effect from 4 April 2005):
“(1) An appeal under section 82(1) is pending during the period-
(a) beginning when it is instituted, and
(b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).
(2) An appeal under section 82(1) is not finally determined for the purposes of subsection (1)(b) while-
(a) an application under section 103A(1) (other than an application out of time with permission) could be made or is awaiting determination,
(b) reconsideration of an appeal has been ordered under section 103A(1) and has not been completed,
(c) an appeal has been remitted to the Tribunal and is awaiting determination,
(d) an application under section 103B or 103E for permission to appeal (other than an application out of time with permission) could be made or is awaiting determination,
(e) an appeal under section 103B or 103E is awaiting determination, or
(f) a reference under section 103C is awaiting determination…”
Mr Southey argues that the claimant's appeal was “instituted” for the purpose of section 104(1)(a) by service of her notice. From that moment the appeal was “pending” and the Secretary of State was prohibited from removing the claimant while her appeal remained undetermined.
For the defendant Mr Auburn argues that an appeal is “instituted” for the purpose of section 104(1)(a) only if the notice of appeal is served within the time limited, in the claimant's case 10 days, in the case of an appellant in detention, 5 days. Until the appeal has been instituted and before time is extended, if at all, the applicant remains at risk of removal. If the application for an extension of time succeeds, from that moment the appeal is instituted and pending. The decision whether to grant an extension of time is a preliminary decision and not a decision in the appeal itself.
Erdogan v SSHD
In R (Erdogan) v SSHD [2004] EWCA Civ 1087, the Court of Appeal was required to resolve whether the respondent was an asylum seeker entitled to receive support under section 95 Immigration and Asylum Act 1999. She was an asylum seeker if (section 94(1)) she had made a claim for asylum which had not been determined. By section 94(3) her claim for asylum had been determined “on the day on which the appeal is disposed of” and by section 94(4) her appeal was disposed of when it was “no longer pending for the purposes of the Immigration Acts”.
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