Upper Tribunal (Immigration and asylum chamber), 2004-06-02, [2004] UKIAT 174 (MY (Disputed Somali nationality))
| Jurisdiction | UK Non-devolved |
| Judge | Hon Mr Justice Ouseley, Mr D K Allen, Mr A Jordan |
| Status | Reported |
| Date | 02 June 2004 |
| Published date | 17 February 2005 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 15 December 2003 |
| Subject Matter | Disputed Somali nationality |
| Appeal Number | [2004] UKIAT 174 |
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MY (Disputed Somali nationality) Somalia * [2004] UKIAT 00174 |
Date of Hearing: 15th December 2003
Date Determination notified:
02 June 2004
Before:
The Honourable Mr Justice Ouseley (President)
Mr D K Allen (Vice President)
Mr A Jordan (Vice President)
Between:
and
For the Appellant: Mr Manjit Gill QC, instructed by Z Ali Dhanji, Solicitors
For the Respondent: Mr J Singh, Home Office Presenting Officer
DETERMINATION AND REASONS
Introduction
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This is an appeal against the determination of an Adjudicator, Mr I J French, promulgated on 25th September 2001. The Appellant claims to be a citizen of Somalia, a member of the Bajuni tribe. He arrived in the United Kingdom on 3rd June 2000 and claimed asylum immediately on arrival at Heathrow. Following three interviews, his claim was refused by a letter dated 26th March 2001. The Secretary of State refused his claim on the basis that he was not a Somali. The Secretary of State said, however, that he would be giving directions for the Appellant’s removal to Somalia but solely in order to enable the Appellant to appeal, and that if his appeal was not upheld, the Secretary of State would seek to establish the Appellant’s true identity.
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The Secretary of State also sent a Notice signed by an Immigration Officer entitled “Notice of Refusal of Leave to Enter” dated 29th March 2001. After stating that leave to enter had been refused, the Notice continued under the heading of “Removal Directions”: “I have given/propose to give directions for your removal by a scheduled service at a time and date to be notified to (country/territory) SOMALIA”. It said that the Appellant was entitled to appeal “against the decision to refuse you leave to enter on the ground that your removal in pursuance of these directions” would be contrary to the Geneva Convention. The footnote directed attention to section 69(1) of the Immigration and Asylum Act 1999.
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The Adjudicator concluded that:
“… even to the lower standard the Appellant has not established that he is of Somalian Nationality but on the evidence before me I have not been able to draw any conclusions as to his correct nationality.
“Bearing in mind my findings as to the Appellant’s credibility and that he is not of Somalian Nationality I did not find that he has established that he is a refugee within the meaning of the Refugee Convention. Nor do I find that there are substantial grounds for believing his evidence with regard to the human rights aspect of the matter. That is not at all to say that I believe that the Appellant should be returned to Somalia. Such a course would be quite wrong as he is not a national of that country, the more so bearing in mind the objective evidence relating to the conditions there.”
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The appeals against the asserted breaches of the two Conventions were dismissed. Nothing more was said about the removal provisions. The grounds of appeal to the Tribunal took issue with the finding that the Appellant was not Somali, and leave was granted because of the passages set out above. The Tribunal determination of 19th February 2002 was brief. It pointed out that if it was said that the Appellant was not a Somali, the “removal directions”, as they were described, were incorrect and outside the provisions of paragraph 8(1)(c) of Schedule 2 to the Immigration Act 1971; the type of problem which arose had been dealt with by the Tribunal in its decision in Zecaj. It allowed the Appellant's appeal.
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The matter was remitted to the Tribunal on 15th November 2002 upon the Secretary of State's appeal to the Court of Appeal, following written submissions only and an indication by the presiding Lord Justice. Although there is no judgment, it appears to have been agreed that the Tribunal erred in its approach to the so-called “removal directions”, because the appeal was brought only under section 69(1) and not under section 69(5) of the 1999 Act. The Tribunal had also relied wrongly on its decision in Zecaj, which was distinguishable. Indeed, shortly after, that decision was overruled by the Court of Appeal anyway, [2002] EWCA Civ 1919, [2003] Imm AR 298.
The Statutory Provisions
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Section 69 deals with the Refugee Convention. Section 69(1) and (5) provide:
“69(1) A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to an adjudicator on the ground that his removal in consequence of the refusal would be contrary to the Convention.
(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.”
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The other provisions of section 69 deal with limited leave or where a deportation order or decision has been made.
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The Appellant claims also to be appealing under the ECHR provisions, which we accepted. Section 65(1) and (5) provide:
“65 (1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person’s entitlement to enter or remain in the United Kingdom, racially discriminated against him or acted in breach of his human rights may appeal to an adjudicator against that decision … .”
(5) If the adjudicator, or the Tribunal, decides that the authority concerned
(a) racially discriminated against the Appellant; or
(b) acted in breach of the Appellant’s human rights,
the appeal may be allowed on the ground in question.”
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Section 66(1) to (3), which was relied on as an interpretative aid, provides:
“66(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 the 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.
(3) This section does not entitle a person to appeal while he is in the United Kingdom unless he is appealing under section 65 or 69 (5).”
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Section 59(3) deals with the position where a person refused leave to enter is appealing against that decision, and is served with removal directions or with Notice “that any directions which may be given for his removal … will be … to a country or one of several countries specified in the Notice.”
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Section 59(4) entitles the recipient to “object” to the country to which he would be removed, or to the country or countries specified in the Notice. But the section contemplates that such an objection to removal must specify the alternative country to which he is to be removed, if he is to be removed at all.
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Section 67 deals with removal directions...
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