SR (Algeria) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Lord Justice Underhill |
| Judgment Date | 17 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1375 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 December 2015 |
| Docket Number | C5/2015/1698 |
[2015] EWCA Civ 1375
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 Underhill
Lord Justice Sales
C5/2015/1698
The Applicant did not attend
Mr John-Paul Waite appeared as Advocate to the Court
Mr Rory Dunlop (instructed by the Government Legal Department) appeared on behalf of the Respondent
This appeal concerns whether an immigrant who is removed from the United Kingdom at a time when she had an appeal on foot in relation to her immigration status is deemed to have abandoned her appeal. This turns on a short point of statutory construction.
The background facts can be summarised briefly. SR is a citizen of Algeria, born on 4 July 1981. She came to the United Kingdom on 28 December 2013 with entry clearance as a visitor for 6 months. Her intention in coming to the United Kingdom, not disclosed to the Secretary of State, was to marry a person now settled here, which she duly did. She overstayed her leave. Her marriage then broke down and she claimed she was subjected to domestic violence. On 15 January 2015 she claimed asylum on the basis that she would be at risk on return from her family members, who would seek to kill her because she had brought dishonour on the family.
By a decision letter dated 28 January 2015, the Secretary of State refused SR's claim for asylum and for leave to remain under the Immigration Rules and on the basis of her rights under Article 8 of the European Convention on Human Rights ("the ECHR").
SR appealed to the First-tier Tribunal under section 82 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). In a determination promulgated on 25 February 2015 the appeal was dismissed on all grounds.
SR then appealed to the Upper Tribunal. In a determination promulgated on 12 March 2015 that appeal was dismissed. By a decision dated 24 March 2015 the Upper Tribunal refused permission to appeal.
SR was detained with a view to her removal from the United Kingdom. While in detention she issued a Notice of Appeal to this court. Owing to some confusion, her first attempts to appeal to this court were not effective, but eventually, on 22 May 2015, SR issued an effective Notice of Appeal in which she also asked for an extension of time in which to appeal and gave an explanation for the delay.
Before SR's application for an extension of time and permission to appeal could be considered in this court, SR was removed back to Algeria by the Secretary of State on 13 June 2015. To state the obvious, this was not a voluntary departure on SR's part.
On 24 June the Court of Appeal Office received a letter from SR dated 14 June to inform the court of her new address in Algeria. This was sent in response to a previous request from the office to let them know of any change of address. It is clear from this letter that SR wishes her appeal to proceed. She has no intention of withdrawing it.
However, the question arises, as a preliminary issue on the appeal, whether SR's appeal must be treated as abandoned by virtue of section 92(8) of the 2002 Act, as substituted by paragraph 47 of Schedule 9 to the Immigration Act 2014 with effect from 20 October 2014. Section 92(8) provides:
"Where an appellant brings an appeal from within the United Kingdom but leaves the United Kingdom before the appeal is finally determined, the appeal is to be treated as abandoned unless the claim to which the appeal relates has been certified under section 94( 1) or (7) or section 94B."
Section 94(1) is concerned with certification of asylum claims by the Secretary of State as clearly unfounded; section 94(7) with certification in relation to certain claims that there is no reason to believe that the person's rights under the ECHR will be breached when removed; and section 94B with certification in relation to certain claims that removal would not be unlawful contrary to section 6 of the Human Rights Act 1998 as being incompatible with a person's Convention rights. In cases of certification under these provisions, separate procedural provisions apply.
The substituted section 92(8) replaced section 104(4)(b) of the 2002 Act. That provided:
"An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant … (b) leaves the United Kingdom."
Section 92(8) is the latest incarnation of the statutory rule which goes back to section 33(4) of the Immigration Act 1971, as amended by the Asylum and Immigration Act 1996. The original version of that amended provision stated:
"For the purposes of this Act an appeal under Part II...
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