Upper Tribunal (Immigration and asylum chamber), 2022-02-23, [2022] UKUT 00071 (IAC) (FZ (human rights appeal, death, effect))

JurisdictionUK Non-devolved
JudgeThe Hon. Mr Justice Lane, President, Upper Tribunal Judge Kopieczek, Upper Tribunal Judge Owens
StatusReported
Date23 February 2022
Published date09 March 2022
CourtUpper Tribunal (Immigration and Asylum Chamber)
Subject Matterhuman rights appeal, death, effect
Hearing Date31 January 2022
Appeal Number[2022] UKUT 00071 (IAC)



Upper Tribunal

(Immigration and Asylum Chamber)


FZ (human rights appeal: death: effect) Afghanistan [2022] UKUT 00071 (IAC)



THE IMMIGRATION ACTS



Heard at Field House

Decision & Reasons Promulgated

On 31 January 2022



…………………………………


Before


THE HON. MR JUSTICE LANE, PRESIDENT

UPPER TRIBUNAL JUDGE KOPIECZEK

UPPER TRIBUNAL JUDGE OWENS



Between


FZ

(ANONYMITY DIRECTION MADE)

Appellant

and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent



Representation:


For the appellant: Ms S Naik QC and Ms I Sabic, instructed by Duncan Lewis Solicitors

For the respondent: Mr S Kovats QC, instructed by the Government Legal Department



Where P has made a human rights appeal and subsequently dies, the appeal no longer exists and should be formally recorded by the Tribunal as having come to an end.




DECISION AND REASONS


A. THE ISSUE

  1. What is the effect on a human rights appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 where the appellant dies? In a decision promulgated on 28 April 2021, the First-tier Tribunal (Resident Judge Campbell and Designated Judge Peart) decided that the appeal abates. The right of appeal conferred by the 2002 Act is dependent upon an adverse decision made by the respondent following a claim made by a living person. Family members who have not themselves made human rights claims cannot become additional appellants or be substituted for the appellant, after the latter’s death. Since the appeal was no longer extant, the First-tier Tribunal formally dismissed it.

  2. Permission to appeal to the Upper Tribunal was granted on 4 June 2021. On 31 January 2022, Ms Naik QC and Ms Sabic appeared on behalf of FZ’s widow and children. Mr Kovats QC appeared for the respondent. We are indebted to them for the quality of their written and oral submissions.


B. BACKGROUND

  1. The appellant, a citizen of Afghanistan, arrived in the United Kingdom in November 2000 and was granted indefinite leave to remain in December 2009. As a result of committing five criminal offences in the United Kingdom, including actual bodily harm and battery, the respondent decided to deport the appellant as a “persistent offender”. The respondent certified the appellant’s human rights claim under section 94B of the 2002 Act. This was on the basis that the respondent considered that, despite the appeals process not having been begun, requiring the appellant to leave the United Kingdom pending the outcome of an appeal in relation to his human rights claim, would not be unlawful under section 6 of the Human Rights Act 1998.

  2. The appellant was deported from the United Kingdom on 26 April 2016, following an unsuccessful attempt to judicially review the section 94B certificate. The appellant lodged an appeal under section 82 of the 2002 Act with the First-tier Tribunal on 9 May 2016, at a time when he was in Afghanistan.

  3. It appears that, at some point, the appellant returned from Kabul to his home area in Afghanistan. On or around 10 September 2018, the appellant was killed by the Taliban.

  4. The appellant’s widow and children sought to pursue the human rights appeal in the First-tier Tribunal. The hearing in that Tribunal took place over four days in late October 2019 and mid-November 2020. As we have already said, the conclusion of the First-tier Tribunal was that the appeal had abated. Accordingly, it declined to make any findings of fact, as the appellant’s widow and children had requested. At paragraph 18(d) of its decision, the First-tier Tribunal recorded the gist of evidence it heard from an expert witness on the availability of a video link from Afghanistan and on the difficulties the appellant faced in Kabul (as a result of which he returned to his home area).


C. LEGISLATION ETC

Human Rights Act 1998

3. Interpretation of legislation

(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

6. Acts of public authorities

        1. It is unlawful for a public authority to act in a way which is incompatible with a Convention right.


        1. Subsection (1) does not apply to an act if—


(a)as the result of one or more provisions of primary legislation, the authority could not have acted differently; or


(b)in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

(3) In this section “public authority” includes—

7. Proceedings

(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.

(2) In subsection (1)(a) “appropriate court or tribunal” means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding.

(3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act.

(5) Proceedings under subsection (1)(a) must be brought before the end of—

(a) the period of one year beginning with the date on which the act complained of took place; or

(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.

(6) In subsection (1)(b) “legal proceedings” includes—

(a) proceedings brought by or at the instigation of a public authority; and

(b) an appeal against the decision of a court or tribunal.

(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.

8. Judicial remedies

(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.

(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including—

(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and

(b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

(4) In determining—

(a) whether to award damages, or

(b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.

(6) In this section—

court” includes a tribunal;

damages” means damages for an unlawful act of a public authority; and

unlawful” means unlawful under section 6(1).


Nationality, Immigration and Asylum Act 2002

77. No removal while claim for asylum pending

(1) While a person’s claim for asylum is pending he may not be—

(a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or

(b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts.

(2) In this section—

(a) “claim for asylum” means a claim by a person that it would be contrary to the United Kingdom’s obligations under the Refugee Convention to remove him from or require him to leave the United Kingdom, and

(b) a person’s claim is pending until he is given notice of the Secretary of State’s decision on it.

(3) In subsection (2) “the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol.

82. Right of appeal to the Tribunal

(1) A person (“P”) may appeal to the Tribunal where—

(a) the Secretary of State has decided to refuse a protection claim made by P,

(b) the Secretary of State has decided to refuse a human rights claim made by P, or

(c) the Secretary of State has decided to revoke P's protection status.

(2) For the purposes of this Part—

(a) a “protection claim” is a claim made by a person (“P”) that removal of P from the United Kingdom—

(i) would breach the United Kingdom's obligations under the Refugee Convention, or

(ii) would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;

    1. P's protection claim is refused if the Secretary of State makes one or more of...

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