Secretary of State for the Home Department v Zeqaj
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LATHAM,LORD JUSTICE THORPE |
| Judgment Date | 10 December 2002 |
| Neutral Citation | [2002] EWCA Civ 1919 |
| Date | 10 December 2002 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C/2002/0828 |
[2002] EWCA Civ 1919
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Thorpe
Lord Justice Latham
Mr Justice Lawrence Collins
C/2002/0828
MISS L GIOVANNETTI (instructed by the Treasury Solicitor) appeared on behalf of the Appellant.
MISS C RECORD (instructed by Messrs Waterfords, London, E13) appeared on behalf of the Respondent
The respondent is an ethnic Albanian from Kosovo. He arrived in the United Kingdom on 12th November 1999 and claimed asylum. He was an illegal entrant. His application was refused on 23rd October 2000 on the basis that he had no reason by then to fear persecution by Serbs, nor had he established any real risk of persecution or ill-treatment by any ethnic Albanian groups. Removal directions directing his removal to Albania were issued on 8th November 2000.
Those directions were clearly given in error. The power to give such directions is contained in paragraph 8(1) of Schedule 2 to the Immigration Act 1971. Paragraph 8(1)(c) provides that such directions should specify as the country to which he is to be removed:
"(i) a country or territory of which he is a national or citizen;
(ii) a country or territory in which he has obtained a passport or other document of identity; or
(iii) a country or territory in which he embarked for the United Kingdom; or
(iv) a country or territory to which there is reason to believe that he will be admitted."
The respondent had no relevant connection with Albania and there was no reason to believe that he would be admitted to Albania. The only country to which he could be removed was the Federal Republic of Yugoslavia. There was accordingly no power to give directions in the form in which they were in fact given.
There were two avenues of appeal for the respondent under sections 66 and 69 of the Immigration and Asylum Act 1999. Section 66 provides as follows:
"(1) This section applies if directions are given for a person's removal from the United Kingdom —
(a) on the ground that he is an illegal entrant;
(b) under section 10; or
(c) under special powers conferred by Schedule 2 to the 1971 Act in relation to members of the crew of a ship or aircraft or persons coming to the United Kingdom to join a ship or aircraft as a member of the crew.
(2) That person may appeal to an adjudicator against the directions on the ground that on the facts of his case there was in law no power to give them on the ground on which they were given."
Section 69, which relates to claims for asylum, provides by subsection (5):
"If directions are given as mentioned in section 66(1) for the removal of a person from the United Kingdom, he may appeal to an adjudicator on the ground that his removal in pursuance of the directions would be contrary to the Convention."
The respondent appealed under section 69(5). The significance of the error in identifying Albania in the removal directions does not appear to have been appreciated at any time by anyone acting on the respondent's behalf. The appeal was based fairly and squarely on the argument that to return him would amount to a breach of the Geneva Convention in relation to asylum seekers and that he had a well-founded fear of persecution for Convention reasons or, alternatively, that it would be a breach of his rights under the European Convention on Human Rights.
It was realised, however, by the appellant's representative that the mistake had been made. For some reason the opportunity was not taken at that stage to withdraw the original directions and replace them with an appropriate direction. The respondent was not represented at the hearing of the appeal and was in no position to understand the difficulty that had arisen or to put forward any argument as to what the appropriate result should be. In his decision the adjudicator, having identified the problem, said:
"6. Therefore, these removal directions are not in accordance with the powers of the Immigration Officer who gave them, and are consequently invalid.
7. This appeal was made under the provisions of s.69(5) of the Immigration and Asylum Act 1999 which only applies when directions have been given for an appellant's removal as, inter alia, an illegal entrant. In this case, there are no such valid removal directions, and therefore there cannot be a valid appeal.
8. The appeal is dismissed."
The respondent appealed to the Immigration Appeal Tribunal. His appeal was heard by a tribunal presided over by the President, Collins J. The tribunal noted that what had happened was not, regrettably, a unique occurrence. It concluded that section 69(5) could not avail the respondent because there was no evidence that to return him to Albania would breach the European Convention. Of its own motion, however, it suggested to the respondent's representative that the appeal should be amended to include an appeal under section 66(2) of the Act. The appellant's representative submitted that that could not assist the respondent as the appeal was restricted to a consideration of whether or not the grounds for giving the direction had been made out and there was no doubt that the respondent was an illegal entrant. The tribunal rejected that argument in the following terms:
"10. In our judgment, that is too restrictive a construction of s.66(2). It enables an appeal to be brought on any ground which is appropriate to an individual case that there was on the facts in law no power to give the directions. So here, the appropriate ground is that there is on the facts of this case no power to direct removal to Albania. It does no violence to the language to s.66(2) to construe it in this way, particularly as any appeal, as the use of the words 'on the facts of the case' recognises, will depend on its particular...
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