R Mm (Ghana) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson,Lord Justice Sullivan |
| Judgment Date | 25 May 2012 |
| Neutral Citation | [2012] EWCA Civ 827 |
| Docket Number | Case No: C5/2011/1765(A) |
| Court | Court of Appeal (Civil Division) |
| Date | 25 May 2012 |
[2012] EWCA Civ 827
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Toulson
and
Lord Justice Sullivan
Case No: C5/2011/1765(A)
Mr Zane Malik (instructed by Lawrence Lupin) appeared for the Applicant.
Miss Lisa Busch (instructed by Treasury Solicitors) appeared for the Respondent.
There are two issues before the court. First, there is an application to set aside an order made by Lord Justice Sullivan on 15 September 2011 that the applicant was to be treated as having abandoned an application for permission to appeal against a decision of the Upper Tribunal Immigration and Asylum Chamber under s.104(4) of the Nationality Immigration and Asylum Act 2002. That section deals with appeals brought under s.82 of the Act, which provides a right of appeal against immigration decisions, including a decision to make a deportation order. S.104(4) provides:
"An appeal under s82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant leaves the United Kingdom."
The issue on the application to set aside Lord Justice Sullivan's order concerns the meaning of the word "leaves" when used in that subsection. If the first application fails, and the applicant's statutory appeal from the decision of the upper tribunal is to be treated as abandoned, he seeks to challenge the same decision by way of an application for judicial review. On reading the application Lord Justice Sullivan gave directions for an oral hearing to determine the two following preliminary issues:
"(1) Whether upon a proper construction of s.104(4) of the 2002 Act the appellant has left the UK so that his appeal is to be treated as abandoned, and
(2) If the answer to (1) is yes, whether the court has jurisdiction to treat the application for permission to appeal as an application for permission to apply for judicial review of the upper tribunal's decision when the appeal against that decision had been abandoned, or if it has jurisdiction, whether it should decline to exercise that jurisdiction on the basis that the appeal has been abandoned."
The order went on to provide that if either of those issues were determined in the appellant's favour, his application for permission to appeal or to apply for judicial review would be determined later on the papers.
Factual background.
The applicant is a citizen of Ghana. He entered the UK illegally in 1997. On 10 February 2010 he was arrested for possession and/or use of a false instrument and on 17 February 2010 he was convicted of offences of obtaining a money transfer by deception and of knowingly possessing a false instrument.
On 27 July 2010 the respondent made a decision to make a deportation order against him. The applicant appealed against that decision and his appeal was dismissed by the first tier tribunal on 7 December 2010. He was granted permission to appeal to the upper tribunal but the upper tribunal dismissed his appeal on 5 April 2011. It refused him permission to appeal to this court on 16 June 2011.
On 1 July 2011 he filed a notice seeking permission to appeal to this court. On 8 July 2011, his solicitors informed the respondent that he intended to go abroad. They wrote:
"Our client has confirmed that he intends to leave the United Kingdom temporarily whilst the appeal is ongoing. He confirms that his intention remains at all times to return to the United Kingdom in the event that his substantive appeal is allowed."
On 11 July 2011 the UK Border Agency wrote to the applicant's solicitors:
"With regards to his outstanding appeal, UK Border Agency will consider his appeal to be abandoned and it will be open to yourself and your client to make representations to the court whether this appeal should be left open once he has left the UK. We will abide by the decision made by the court."
The applicant left the UK for Ghana on 16 July 2011. His reasons for going were set out by him in a written statement. They had to do with his inability to obtain work in this country and pressures on his family. His decision to return to Ghana was a calculated decision, knowing that he would not be allowed back into the UK with a decision to make a deportation order outstanding against him.
In LB (Jamaica) v SSHD [2011] EWCA Civ 1420 this court rejected a submission that the phrase in s104(4), "an appeal under s82(1)", is confined to an appeal pending before the tribunal and does not extend to an appeal from the tribunal to the Court of Appeal. Mr Malik recognised that the decision is binding at this level, but reserved his right to challenge its correctness in the Supreme Court.
The first issue.
Mr Malik submitted that the applicant never left the UK within the meaning of s.104(4). He submitted that the word "leave" should be interpreted as meaning, "leaves with no intention to return". Mr Malik observed that the Concise Oxford Dictionary gives a number of meanings for the word "leave". They include, "go away" or "depart"; they also include "abandon", "renounce" and "go away permanently". He submitted that in the context of s.104(4) Parliament must have intended the latter meaning, because it would not be fair to infer an abandonment of an appeal from a departure which was intended to be of a temporary nature.
Authorities.
We have been referred to two authorities on similar wording in immigration legislation. In Zinaidia Dupovac v SSHD [2000] EWCA Civ 10, [2000] IAR 265, the court considered the words:
"an appeal … shall … be treated as … ending when the appeal is finally determined or withdrawn or is abandoned by reason of the appellant leaving the United Kingdom."
Those words appeared in s.33(4) of the Immigration Act 1971, as amended by the Asylum and Immigration Act 1996. The appellant had been refused asylum but had been granted exceptional leave to remain. During that period she travelled to Italy for two weeks on a social visit and returned within the period of her extant leave. It was accepted by her counsel, Mr Blake QC, that she had left the United Kingdom but he submitted that the words, "is abandoned by reason of the appellant leaving the United Kingdom", did not compel the conclusion that her appeal had thereby been abandoned. He submitted that those words were aimed only at those persons who, if they left and went to another country, could not re-enter without a grant of leave. In that category would be those against whom deportation orders had been made.
The court rejected the submission. Waller LJ acknowledged the potential hardship of the rule in cases such as the one with which the court was concerned. He said:
"If the statute has the effect of deeming appeals to be abandoned in circumstances such as those that existed in the appellant's case, I accept that the result is draconian. If a person goes on a social visit to a territory outside the common travel area, and returns well within the duration of the period of exceptional leave already given, and which is as a matter of practice bound to be given on her return, and who in no sense has intended to abandon her appeal, it seems harsh that she should be deemed to have done so."
However, he held that there was nothing in the language of the Act which permitted a different construction. At the end of his judgment he added the following caveat
"What Mr Blake did not, and possibly could not, argue on the facts of this appeal was that the appellant had not left the United Kingdom. It was put to Mr Blake in the course of the hearing before us, the question as to what would be the position if someone simply sailed out to sea and then back again during one afternoon. He rightly declined to wrestle with that problem. I would wish to reserve the question as to whether there may not be circumstances when despite a physical leaving of the shores of the United Kingdom, the physical leaving will not constitute 'leaving the United Kingdom' within the words as used in the statute."
Chadwick LJ gave a judgment to a similar effect. He said:
"In my view … the words have been included in order to require the adjudicator or the appeal tribunal to treat an appeal as abandoned on the appellant leaving the United Kingdom without further enquiry into the facts of the particular case. That may seem a draconian result, but I see no escape from it."
He added this final comment:
"I should add that I express no view on the circumstances in which a person will be held to have left the United Kingdom … it being accepted that whatever the precise nature of that requirement, it was satisfied in the present case."
Sir Christopher Slade agreed with both judgments.
In Farshad Shirazi v SSHD [2003] EWCA Civ 1562 the appellant was an Iranian citizen who sought asylum in the UK. His claim was refused by the Home Secretary, allowed by an adjudicator, but the adjudicator's decision was reversed by the immigration appeal tribunal. He appealed successfully to this court. While his appeal was pending, he travelled to the Netherlands on a false Iranian passport, but was refused entry and was returned to the UK on the following day. Counsel for the Home Secretary took a preliminary point that his appeal was deemed to be abandoned under s.58(8) of the Immigration and Asylum Act 1999. That subsection provided:
"An appeal pending under this part is to be treated as abandoned if the appellant leaves the United Kingdom."
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