R (Kariharan) v Secretary of State for the Home Department; R (Kumarakuruparan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Auld,Lord Justice Sedley |
| Judgment Date | 25 July 2002 |
| Neutral Citation | [2002] EWCA Civ 1102 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 July 2002 |
| Docket Number | Case No: C/2001/2823 |
[2002] EWCA Civ 1102
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE OFFICE LIST
Mr Justice Stanley Burnton & Mr Justice Newman
Lord Justice Auld
Lord Justice Sedley and
Lord Justice Arden
Case No: C/2001/2823
C/2002/0262
Mr Manjit Gill QC & Miss Shivani Jegarajah (instructed by M. K Sri & Co) for the Appellants
Mr Robin Tam & Miss Eleanor Grey (instructed by The Treasury Solicitor) for the Respondent
and
Mr Robin Tam & Miss Eleanor Grey (instructed by The Treasury Solicitor) for the Appellant
Mr Andrew Nicol QC & Mr Simon Cox (instructed by Van-Arkadie & Co) for the Respondents
Introduction
These appeals concern the construction of section 65 of the Immigration And Asylum Act 1999, which, from 2 nd October 2000, provided a new right of appeal on human rights grounds to those dissatisfied with immigration decisions, including refusals of asylum. The issue on these appeals, on which Stanley Burnton J in the claim of Kariharan and Koneswaran and Newman J in the claim of Kumarakuruparan have given conflicting rulings, is whether directions for removal of a person refused leave to enter or remain or of an illegal entrant are appealable under that provision. The question arises in these appeals in the context of directions for removal given after the commencement date of section 65 implementing decisions of refusal of leave to enter or that a person is an illegal entrant made before that date. In each of the appeals the issue is one of statutory construction. Nothing turns on the particular facts of the cases.
Section 65, in its original form was in the following terms:
. "(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 that decision …
(2) … 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."
This new and free-standing right of appeal is part of the new appeals provisions of Part IV of the 1999 Act, replacing with modifications and bringing together previous appeals provisions in the Immigration Act 1971, the Asylum and Immigration Appeals Act 1993 and the Asylum and Immigration Act 1996. As with those earlier Acts, there were transitional arrangements to identify pending cases or appeals at the commencement date that would be governed by it and those that would continue to be governed by the old provisions.
Thus, the commencement order bringing into force the bulk of Part IV of the 1999 Act on 2 nd October 2000 1 provided in Article 3(1)(a) and 4(2) that the new appeals provisions were not to have effect in relation to events, namely service of a notice, making a decision, giving a direction or issuing a certificate, which took place before 2 nd October 2000, to which the old appeal provisions would continue to apply. And paragraph 1(7) of Schedule 2 to the Order provided that human rights appeals under section 65 did not lie against a "decision" under the Immigration Acts taken before the commencement date, namely one relating to a person's entitlement to enter or remain in the United Kingdom.
To mitigate possible hardship to claimants in the transitional period who, because of those provisions, might not be entitled to rely on section 65, the Secretary of State has adopted a discretionary policy of "generating" such rights of appeal in certain cases of a subsequent human rights allegation in cases originally finally determined before that date, a policy that Stanley Burnton J, in the claims of Kariharan and Koneswaran, has held to be rational and otherwise lawful. The policy does not apply where the human rights issue was fully considered at an earlier appeal or by the higher courts or where it is based solely on facts not accepted in such earlier proceedings. The Secretary of State has generated such a right of appeal for Kumarakuruparan, who nevertheless proceeds with this claim for judicial review with a view to seeking damages for his previous allegedly unlawful removal from this country. The Secretary of State has under consideration whether he should take similar action in the cases of Kariharan and Koneswaran. The existence of that policy, which, in any event, applies only to transitional cases, cannot affect the interpretation of section 65 and is no effective substitute for the protection that it provides.
The central question is the meaning and extent of the words in section 65(1), "any decision under the Immigration Acts relating to … [a] person's entitlement to enter and remain in the United Kingdom". It is clear that removal directions are a "decision" under the Immigration Acts. The question is whether they are a decision "relating to … [a claimant's] entitlement to enter or remain". Stanley Burnton J., in the cases of Kariharan and Koneswaran, who had been refused leave to enter and asylum, held that those words did not include removal directions. Newman J, shortly afterwards, in the case of Kumarakuruparan, an illegal entrant who had also unsuccessfully claimed asylum, held that they did, expressly disagreeing with Stanley Burnton J.
The meaning of a "decision relating to entitlement to enter or remain" in section 65 is conditioned by the general scheme of United Kingdom immigration control. First, although the scheme of control is based on three main features, the right of abode, leave to enter and leave to remain, the word "entitlement" in that expression is not confined to, or intended to provide in the main for, those who have a right of abode. In the context of those who have not, for whom it is intended mainly to provide, it must refer to a lesser entitlement, one derived from permission granted to settle under section 1(2), or leave to enter or remain granted under section 3(1), of the 1971 Act. So, a refusal of leave to enter or remain or a decision that a person is an illegal entrant is a decision relating to his entitlement to enter or remain here. So much was recognised by the Immigration Appeal Tribunal in its starred decision in Kehinde (10/TH/2668) of 19 th December 2001, paras. 5 to 7, holding appealable under section 65 the Secretary of State's refusal to revoke a deportation order. Second, the precise status of the maker of the decision is immaterial for this purpose; see section 65(7), which provides that "an authority" for this purpose means the Secretary of State, an immigration officer or a person responsible for the grant or refusal of entry clearance. It is the nature of the decision that is critical.
The question is whether removal directions given pursuant to such a decision are also a decision relating to an entitlement to enter or remain. Mr. Robin Tam, for the Secretary of State maintained that they are not, being merely the nomination of a date for administrative enforcement of a decision relating to entitlement that has already been made. He submitted, therefore, that, as all such earlier decisions in these appeals had been made before the commencement date for section 65, they carried with them no right of appeal under that provision. Mr. Andrew Nicol, QC, for Kumarakuruparan, and Mr. Manjit Gill, QC, for Kariharan and Koneswaran, maintained that the post-commencement removal directions are decisions relating to entitlement to enter or remain, relying on their discretionary nature and their practical effect, if and when given, of depriving claimants of any such entitlement. Accordingly, they submitted, the three claimants are entitled to rely on the new provision.
Before turning to those competing arguments in more detail, I should mention two further features of the 1999 Act.
First, the clear policy of Part IV of the 1999 Act is that all possible reasons for allowing a person to remain in the United Kingdom should normally be considered on a single occasion by the Secretary of State and on appeal, in one set of proceedings. Section 65(3) permits a person appealing under any other right of appeal also to raise a human rights ground. The Act provides for the prevention of abusive, repetitive appeals of any sort by a "one-stop" procedure set out in sections 74 to 77 and by specific limitation in section 73 on further appeals. The latter empowers the Secretary of State, following final determination of any appeal under the Act and the subsequent giving of notice of appeal under section 65, to certify abusive, repetitive claims under that section, the effect of the certificate being to treat the appeal so far as relating to that claim as finally determined. The Secretary of State may so certify where, in his opinion: (1) the claim could reasonably have been, but was not, included in a "one-stop" statement under section 74 or in the original appeal; (2) one purpose of such a claim would be to delay the removal; and (3) there is no other legitimate purpose for the claim.
Second, with effect from 2 nd April 2001, the 1999 Act was amended by section 6 of the Race Relations (Amendment) Act 2000 so as to insert in section 65 as an additional or alternative ground of appeal that the decision-maker had...
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