Upper Tribunal (Immigration and asylum chamber), 2005-03-03, [2005] UKIAT 59 (SS (False nationality appeal))
| Jurisdiction | UK Non-devolved |
| Judge | Hon Mr Justice Ouseley, Mr D J Parkes, Mr M. W Rapinet |
| Status | Reported |
| Date | 03 March 2005 |
| Published date | 10 March 2005 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 22 February 2005 |
| Subject Matter | False nationality appeal |
| Appeal Number | [2005] UKIAT 59 |
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SS (False nationality appeal) Somalia [2005] UKIAT 00059 |
IMMIGRATION APPEAL TRIBUNAL
Date: 22 February 2005
Date Determination notified:
3 March 2005
Before:
The Honourable Mr Justice Ouseley (President)
Mr D J Parkes (Acting Vice President)
Mr M W Rapinet (Acting Vice President)
Between:
and
Appearances:
For the Appellant: Mr G Elks, Home Office Presenting Officer
For the Respondent: Ms H Choudhery of Asghar & Co
DETERMINATION AND REASONS
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This is an appeal by the Secretary of State against the determination of an Adjudicator, Mr Vaudin d’Imecourt, promulgated on 26 February 2004. The Claimant alleged that he was a citizen of Somalia, allegedly born in 1986 and who said that he had arrived in the United Kingdom in August 2003 from Kenya, where he had been living in a camp for the previous ten years.
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The Secretary of State did not believe him and refused his asylum claim, which was based on his alleged membership of a minority Somali clan. In the Secretary of State’s decision dated 20 November 2003, he said:
“It is not accepted that you are Somali and your claim for asylum and your human rights claim have been refused on the basis that you are not Somali. Directions will be given for your removal to Somali as this is the country of which you claim to be a national. This will enable you to appeal the refusal of your claim. If you do appeal and the adjudicator also concludes that you are not Somali we will seek to remove you to a country or territory to which you can be removed pursuant to paragraph 8(1)(c) of Schedule 2 or paragraph 1(1) of Schedule 3 of the 1971 Act as appropriate.
On the basis of the information you have provided your removal would not be contrary to the United Kingdom’s obligations under the ECHR.”
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That refusal letter was accompanied by a “Notice of Refusal of Leave to Enter” which said that the Secretary of State had refused the application for asylum for the reasons set out in the attached Notice. That attached Notice is the reasons for the refusal letter. The Notice of Refusal of Leave to Enter continued “I therefore refuse you leave to enter the United Kingdom/I therefore cancel your continuing leave…”. Underneath was the further heading “Removal Directions” below which it said “I have given/propose to give directions for your removal to Somalia by flight/ship/train:”. There were then set out the rights of appeal which included the ground that removal from the United Kingdom as a result of the decision would breach the United Kingdom’s obligations under the 1951 Refugee Convention or the ECHR.
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The Claimant appealed against what he described as the decision of the Secretary of State to “refuse my asylum application” explaining that he could not go back to “Afghanistan” [sic]. Further details were to follow.
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The Adjudicator described the appeal as being under section 82(1) of the Nationality Immigration and Asylum Act 2002 “against the decision of the Immigration officer made on 24th November 2003 [the date on the Notice of Refusal of Leave to Enter] to issue removal directions to Somalia as a result of the SSHD’s decision to refuse his application for asylum and on the basis of his human rights”. There was no ground of appeal which related to the country of destination which had been set out in the Notice of Refusal of Leave to Enter in accordance with Regulation 5 of the Immigration (Notices) Regulations 2003 SI No 658. The Adjudicator concluded that the Claimant’s claim to be a Somali refugee was not made out. He “was satisfied to a high degree of probability that this young man was a Kenyan national which is the country from where he flew directly to the United Kingdom”. He noted what the Home Office letter of 20 November 2003 said at paragraph 12 and said that in those circumstances he would expect removal to be effected to Kenya, which was the last country from which he had flown directly to the United Kingdom. He concluded that removal of the Claimant to Somalia would breach neither Convention. There is no challenge by the Claimant in the course of this appeal to that conclusion. The Adjudicator was right to dismiss the asylum and human rights grounds of appeal, which he did by reference to Somalia.
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The Adjudicator dismissed the appeal on asylum and human rights grounds but allowed the appeal “on the limited ground that the removal direction to Somalia in this case is against the law” and directed that the removal directions be quashed.
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He explained his reasons as follows. The appeal should be regarded as brought under section 84(1)(e) on the grounds that the decision “is otherwise not in accordance with the law” and that the law for these purposes included paragraph 8(1)(c) of Schedule 2 to the Immigration Act 1971 which only permitted removal directions to by given for certain countries only, none of which would entitle the Secretary of State to remove the Claimant to Somalia because the Claimant was not a Somali, nor did he hold a Somali passport, nor had he come to the United Kingdom directly from there, nor were there reasonable grounds for supposing that he would be permitted to enter Somalia.
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The Adjudicator appears to have thought that section 85(1) of the 2002 Act imposed an obligation on him to consider a ground of appeal not raised and then concluded that section 86(3) compelled him to allow the appeal where he thought that the decision was not in accordance with the law. He held that section 87(1), which permitted him to give a direction for the purpose of giving effect to his decision, permitted him to direct the quashing of what he thought were removal directions.
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The Secretary of State appealed on the grounds that the Adjudicator had no jurisdiction to consider or quash removal directions or to consider the power of the Secretary of State to make them. The setting of removal directions was not an “immigration decision” within Section 82 of the 2002 Act. Mr Elks refined his submissions to contend that there had been no removal directions at all, and that if there had been they were not part of the immigration decision. Indeed, there had been no decision to remove the Claimant at all. The decision was simply a refusal of leave to enter under section 82(2)(a).
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Miss Choudhery for the Claimant submitted that the Secretary of State’s decision was a decision under (2)(a) and (g), the latter being a decision “that a person is to be removed from the United Kingdom by way of directions under Section 10(1)(a),(b) or (c) of the Immigration and Asylum Act 1999 (c.33) (removal of person unlawfully in United Kingdom), …”.
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Whatever other points may have been thrown up by this appeal, neither party seemed to consider that the allowing or dismissing of the appeal would make any practical difference to what happened to the Claimant. The Secretary of State said that whether the appeal were allowed or dismissed he would set removal directions for another country without making as he understood matters, any further appealable decision; Judicial Review might be available in respect of the new directions.
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Ms Choudhery thought that the Secretary of State would have to make a new decision either way and even if she were right about the current appeal being brought in respect of a section 82(2)(g)...
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