R (Khemiri) v Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 26 August 2010 |
| Neutral Citation | [2010] EWHC 2363 (Admin) |
| Docket Number | CO/8134/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 August 2010 |
[2010] EWHC 2363 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Collins
CO/8134/2010
Miss A Weston (Instructed By Birnberg Peirce & Partners) Appeared On Behalf Of The Claimant
Miss L Busch (Instructed By Treasury Solicitors) Appeared On Behalf Of The Defendant
(As Approved)
: The claimant in this case is a Tunisian national who arrived in this country in 2001 and claimed asylum. His claim was accepted by decision of 2 October 2001 and he was then granted indefinite leave to enter. The powers under the Immigration Acts in relation to leave to enter and leave to remain are slightly different in that leave to remain is a matter for the Secretary of State and leave to enter for an immigration officer. Although perhaps obvious, the division is one that is more apparent than real when one is dealing with cases such as this. I say that because what happened here was that he was granted the usual travel document which is available to refugees in March 2003 but in November 2007 he was arrested in this country following a European Arrest Warrant issued by the Court of Milan in Italy. The arrest warrants were based upon allegations that he had been involved—I put it broadly—in terrorist related activities in Italy. He was not the only one alleged to have been so involved. He, and I think some others, were extradited in due course following dismissal of appeals in October or November of 2008.
On 8 July of this year, 2010, he was acquitted of the charges made against him in Italy, save for one, which related to his involvement a procurement of a false travel document for his nephew. It is, I think, common ground that that charge is not one which related to terrorist activities. He was sentenced to 12 months’ imprisonment in relation to that charge, but he had served that period on remand and therefore so far as the Italian court was concerned he was free to leave.
The Italians then detained him with a view to possible expulsion to Tunisia, and an investigation as to whether the Dublin Convention could be used to remove him to this country. In due course, the Italians having been notified and having recognised he was a refugee, it was accepted that he could not be returned to Tunisia. In fact the claimant obtained an order under rule 39 of the European Court on Human Rights in Strasbourg that he should not be sent to Tunisia. That, as far as I am aware, is still in effect.
In the meantime it was decided that his refugee status should be revoked on the basis that he was a danger to the security of the State. What was said in a letter of 16 July was that a decision had been taken to cancel the indefinite leave to, it was said remain, but it should have been to enter, under article 13(7) of the Immigration Leave to Enter and Remain Order 2000 on the ground that his exclusion would be conducive to the public good. Although it was an immigration decision to vary leave which fell within section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 which meant that there was a right of appeal which normally would be able to be exercised in country, in the circumstances, he being outside the country, he would have to remain outside the country in order to pursue that appeal. It was recognised that the use of 13(7)B was wrong because this was a leave to enter and not a leave to remain, and so that was varied by a decision of an immigration officer under 13(7)A, but the same approach was adopted.
The judicial review claim was brought attacking the refusal to allow him to enter this country in order to pursue his appeal here. I should add that having regard to the nature of the matters relied upon and the issues of national security, it has been decided that any appeal that he lodges should be dealt with not by the Asylum and Immigration part of the Tribunal but by the Special Immigration Appeals Commission.
For obvious reasons he wishes to pursue his appeal within this country rather than having to do so from abroad. There are problems in relation to where he can stay abroad. It may be that, since he cannot be returned to Tunisia, he would have to remain in Italy if he was not allowed into this country, because the Italians would have an obligation to treat him as a refugee. I gather he has now been released from custody in Italy, so he is able to return to this country, if he should be permitted to do so, forthwith.
As I say, the challenge was two fold: one to the prohibition upon his return to this country to pursue his appeal and secondly upon the decision itself. The second part has been put over by order of Rabinder Singh QC who gave permission limited to the issue of whether he should be allowed to enter this country, notwithstanding the cancellation of his leave to enter. The other grounds of judicial review, I suspect, will be subsumed in the appeal to the Special Immigration Appeals Commission and thus will not go ahead in this court. Indeed, there is clearly jurisdiction covering all the matters raised in the Special Immigration Appeals Commission and therefore it is right that those matters should be dealt with there rather than here, in due course.
The starting point in relation to the right of appeal against decisions under the Immigration Acts is section 82 of the 2002 Act. This gives a right of appeal to the Tribunal, whether SIAC or the Tribunal depending on the circumstances, in respect of what is described in section 82 as an immigration decision. Sub-section 2 then sets out the various decisions which amount to immigration decisions. The relevant one for our purposes is section 82(2)(e), which identifies as an immigration decision a variation of a person's leave to enter or remain in the United Kingdom if, when the variation takes effect, the person has no leave to enter or remain. I gather at one stage there was some query raised as to whether 82(2)(e) in truth applied in circumstances such as this. I am not quite sure why that question was raised, because it is accepted that it is clearly the position that this is a decision which falls within section 82(2)(e), because he did have leave to enter, which was permanent, and that leave has been varied to bring it to an end and so he now has no leave to enter.
The power that was used was that provided by the Immigration Leave to Enter and Remain Order 2000. That is an order made under various powers conferred by the Immigration Act 1971, notably sections 3A and 3B. Part 4 of Article 13, under the heading “Leave which does not lapse on travel outside the common travel area”, provides by 13(7):
“Where a person is outside the United Kingdom and has leave which is in force by virtue of this Article, that leave may be cancelled -
(a) in the case of leave to enter, by an immigration officer or -
(b) in the case of leave to remain, by the Secretary of State.”
The 2000 Article deals comprehensively with the exercise of the power to grant leave to enter.
It is said, as I have already indicated, in the letter of 16 July that the decision was taken under 13(7), subsequently 13(7)(a), applying paragraph 321A of the Immigration Rules. That paragraph, as far as material, under the heading “grounds on which leave to enter or remain which is in force is to be cancelled at port or while the holder is outside the United Kingdom”, includes in 321A(v) one of the grounds as being where, from the information available to the immigration officer or Secretary of State, it seems right to cancel leave on the ground that exclusion from the United Kingdom is conducive to the public good, if, for example in the light of the character, conduct or associations of that person it is undesirable for him to have leave to enter the United Kingdom. This claimant was, of course, a refugee, and therefore the powers to revoke a grant of asylum are material when one comes to consider whether 321A(v) has been appropriately used. We find too 339A(ix) as one of the grounds for revocation of a grant of asylum, and that is a matter, incidentally, for the Secretary of State. The actual cancellation is by an immigration officer because he was granted indefinite leave to enter rather than indefinite leave to remain, but the effect of each would be exactly the same. Ground 339A(ix) provides:
“there are reasonable grounds for regarding him as a danger to the security of the United Kingdom.”
It is perhaps obvious, and indeed the terms of the Refugee Convention make clear, that the power to revoke, assuming the danger within the state of nationality continues, as is the case here, that it requires effectively in most cases that he falls within one of the exclusions within Article 1F of the Refugee Convention, and thus the test which would be applicable for public good is that much higher than might be the case in certain other situations.
It is to be noted that 339G deals with the revocation of humanitarian protection. Although he was not in terms granted humanitarian protection, it is quite obvious that the grant of refugee status, because of the dangers of persecution that he faces if returned to Tunisia, would encompass a grant of humanitarian protection. By 339G(iv), the revocation of such protection can be made if the person granted humanitarian protection should have been or is excluded from that protection because there are serious reasons for considering that he constitutes a danger to the community or to the...
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