RA (Appeals Procedure - Immigration and Asylum Act 1999)
| Jurisdiction | England & Wales |
| Judge | J Barnes |
| Judgment Date | 05 September 2003 |
| Neutral Citation | [2003] UKIAT 63 |
| Court | Immigration Appeals Tribunal |
| Date | 05 September 2003 |
[2003] UKIAT 63
IMMIGRATION APPEAL TRIBUNAL
Mr J Barnes (Chairman)
Professor D B Casson
The appellant was represented before us today by Mr A Hutton, Home Office Presenting Officer.
The respondent was represented by Mrs G Fama of Counsel, instructed by White Ryland
RA (Appeals Procedure — Immigration and Asylum Act 1999) Eritrea
The respondent was said by the appellant in the statement accompanying the notice of appeal to be a citizen of Eritrea born on 27 March 1985 who had arrived in the United Kingdom on 12 October 2002 and claimed asylum on arrival. Following the submission of a statement her application was refused for the reasons set out in a letter dated 2 November 2002. On 5 November 2002 notice of refusal to grant asylum was issued and it is in the following terms.
“You have applied for asylum in the United Kingdom but your application has been refused for the reasons stated in the reasons for refusal letter attached. It has been decided, however, that because of the particular circumstances of your case you should be granted exceptional leave to enter the United Kingdom. The Secretary of State therefore grants you leave to enter until 26 March 2003.”
The form went on to state that the respondent had a right of appeal under Section 69(3) of the Immigration & Asylum Act 1999 and it appears that a one-stop notice under Section 77 of the same Act was served with that notice of refusal to grant asylum. The respondent appealed against that decision and the grounds of appeal are as follows:
“The decision of the Secretary of State is contrary to UK's obligations under the Geneva Convention and is otherwise unreasonable. I also state that my removal from UK to Eritrea would be in breach of the European Convention on Human Rights.”
It was accepted, both by the Secretary of State and by the Adjudicator before whom the appeal came, that the respondent had lived all her life in Ethiopia, although of mixed Ethiopian and Eritrean ethnicity. It was further found by the Adjudicator that the appellant's 18 th birthday would in fact be on 5 April 2005 because she had been born on 5 April 1987 and not in 1985 as the Secretary of State had previously thought. This had arisen because of confusion in the transposition of dates, as we understand it, between the Ethiopian and the western calendars.
The appeal was heard on 26 March 2003 by Mr C C Wright, an Adjudicator. Purely by coincidence that happened to be the date on which the exceptional leave to remain which had been granted to the respondent expired. The asylum appeal was conceded by Mrs Fama who also appeared for the respondent before the Adjudicator and in consequence was dismissed. The Adjudicator then went on to allow the appeal on human rights grounds. The Secretary of State has appealed against that decision and his challenge is as follows:
“It is submitted that the Adjudicator has erred in law by allowing this appeal under Article 3 and 8 when the appellant had been granted leave to remain. The Adjudicator has erred in law in allowing the appeal under Articles 3 and 8 when there are no current directions to remove the appellant to Ethiopia or Eritrea and the appellant is effectively appealing against the decision to grant her limited leave rather than indefinite leave.”
The proper situation in such cases where a Section 69(3) asylum appeal has been dismissed, as is the case here, and only human rights grounds remain possibly, as to which we shall deal later in this judgment, was considered by the Tribunal in the recorded decision of P (Yugoslavia) [2003] UKIAT 00017. In that case leave had been granted to the claimant to pursue a human rights claim before the Tribunal and the Tribunal said this at paragraph 6 of the determination:
“In our view leave should not have been granted since at that time (3 September 2002) the appellant still had limited leave to remain which was not due to expire until 18 November 2002. Whilst by virtue of the Court of Appeal judgment in Saad, Diriye and Osorio [2002] INLR 34 the claimant was entitled to have his asylum grounds of appeal determined on the hypothetical basis of whether he would face a real risk of persecution as at the date of hearing, the same...
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