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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kagabo v Secretary of State for the Home Department [2009] EWHC 153 (Admin) (12 February 2009) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2009/153.html Cite as: [2010] INLR 24, [2009] EWHC 153 (Admin), [2009] Imm AR 564 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
JEANETTE KAGABO |
Claimant |
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- and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Jonathan Auburn (instructed by Treasury Solicitor) for the Defendant
Hearing date: 3 February 2009
____________________
Crown Copyright ©
Mr Justice Pitchford:
Academic nature of the claim
Claimant's immigration history
The dispute
"(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.
(2) In this Part "immigration decision" means…
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain, ….
(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c.33)(removal of person unlawfully in United Kingdom),….
There is no doubt that section 82(1) entitled the Claimant to appeal against the decisions made on 25 July 2007.
"(1) While a person's appeal under section 82(1) 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 "pending" has the meaning given by section 104."
"(1) An appeal under section 82(1) is pending during the period-
(a) beginning when it is instituted, and
(b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).
(2) An appeal under section 82(1) is not finally determined for the purposes of subsection (1)(b) while-
(a) an application under section 103A(1) (other than an application out of time with permission) could be made or is awaiting determination,
(b) reconsideration of an appeal has been ordered under section 103A(1) and has not been completed,
(c) an appeal has been remitted to the Tribunal and is awaiting determination,
(d) an application under section 103B or 103E for permission to appeal (other than an application out of time with permission) could be made or is awaiting determination,
(e) an appeal under section 103B or 103E is awaiting determination, or
(f) a reference under section 103C is awaiting determination..."
Mr Southey argues that the claimant's appeal was "instituted" for the purpose of section 104(1)(a) by service of her notice. From that moment the appeal was "pending" and the Secretary of State was prohibited from removing the claimant while her appeal remained undetermined.
Erdogan v SSHD
"(1) An appeal under section 82(1) is pending during the period
(a) beginning when it is instituted; and
(b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).
(2) An appeal under section 82(1) is not finally determined for the purposes of subsection (1)(b) while a further appeal or an application under section 101(2)
(a) has been instituted and is not yet finally determined, withdrawn or abandoned; or
(b) may be brought (ignoring the possibility of an appeal out of time with permission)."
"As a matter of general approach to time limits in connection with an appeal, it seems to me that, since an application for permission to appeal within a statutory time limit exists as a statutory right, it has a character which an application made out of time does not. The existence of a discretionary power to extend time upon application being made gives rise to a procedural right which is inchoate in character. However, in this instance the result is, in my judgment, driven by the terms of section 104. Further, section 104(2)(b) includes within the meaning of a pending appeal the situation where an appeal has not been instituted, but the period when an appeal "may be brought" is still running. It is not simply the institution of an appeal which creates a pending appeal; it is the currency of the time limit. The words in brackets, "ignoring the possibility of an appeal out of time with permission" point to such an application being different in kind. The 2002 Rules, in my judgment, make the position clear. Rule 16(2) in terms provides that if permission to appeal out of time is granted, then the appeal will be in accordance with paragraph (1) of Rule 16. Once that occurs, there will be a pending appeal within section 104."
"…. The power of the Secretary of State so to do will be subject to the supervisory role of the court in judicial review to give protection where necessary."
Mr Southey argues that I am not bound by the reasoning in Erdogan. The court construed a specific statutory definition of the term "pending" by reference to the terms of section 104(2) which do not apply to the current statutory regime of appeal and application for reconsideration, and which do not appear in section 104(2) as amended. There are, Mr Southey submits, two competing policy considerations at work. The first is speedy resolution of asylum and human rights applications. The second is the requirement for effective access to judicial resolution of disputed administrative decisions. The appeals regime to which Ms Erdogan was subject had given her access to a judicial decision in her first appeal to the adjudicator. In the present case the claimant, when she submitted her out of time application, had enjoyed no access to a judicial decision on her asylum or human rights claims. Had she been removed administratively during her pending application the SSHD would have been in breach of the obligation to provide effective access to a judicial decision.
The Immigration and Asylum Appeals (Procedure) Rules 2003
"(1) An appeal to an adjudicator against a relevant decision must be instituted by giving notice of appeal in accordance with these Rules."
"(1) An appeal from the determination of an adjudicator may only be made with the permission of the Tribunal upon an application made in accordance with these Rules."
The term "appellant", by rule 14(1)(a), applied to a party appealing to the Tribunal against an adjudicator's determination and included a party applying for permission to appeal.
Amendment to NIAA 2002 and The Asylum and Immigration Tribunal (Procedure) Rules 2005
"9. The phrase "other than an application out of time with permission" is an obscure one. There can be no doubt that if this court does grant permission to appeal out of time, an appeal under section 103B will then be pending and section 78 will prohibit the Appellant's removal until after the appeal is determined. It appears to me that the phrase probably refers to an unusual situation in which this court has extended time for filing the appellant's notice as a discrete event and is therefore treated as having given permission for the application for permission to appeal to be made. The effect of section 104(2)(d) will then be that even if an extension of time is granted, no appeal will be pending for the purpose of section 78 until such time (if at all) permission to appeal is in due course granted."
"An appeal to the Tribunal may only be instituted by giving notice of appeal against a relevant decision in accordance with these Rules."
"(1) A notice of appeal by a person who is in the United Kingdom must be given
(a) if a person is in detention….
(b) in any other case, not later than 10 days after he is served with notice of the decision…."
"(1) This rule applies in any case in which the respondent notifies the Tribunal that removal directions have been issued against a person who has given notice of appeal, pursuant to which it is proposed to remove him from the United Kingdom within 5 calendar days of the date on which the notice of appeal was given.
(2) The Tribunal must, if reasonably practicable, make any preliminary decision under rule 10 before the date and time proposed for his removal.
(3) Rule 10 shall apply subject to the modifications that the Tribunal may-
(a) give notification under rule 10(2) orally, which may include giving it by telephone,
(b) shorten the time for giving evidence under rule 10(3); and
(c) direct that any evidence under rule 10(3) is to be given orally, which may include requiring the evidence to be given by telephone, and hold a hearing or telephone hearing for the purpose of receiving such evidence."
Access to a judicial authority
"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 leaves the United Kingdom."
"Firstly, it is not possible to exclude the risk that in a system where stays of execution must be applied for and are discretionary they may be refused wrongly, in particular if it was subsequently to transpire that the court ruling on the merits has nonetheless to quash a deportation order for failure to comply with the Convention, for instance, if the applicant would be subjected to ill-treatment in the country of destination…. In such cases the remedy exercised by the applicant would not be sufficiently effective for the purpose of Article 13."
"The Court reiterates that Article 13 of the Convention guarantees the availability at a national level of a remedy to enforce the substance of the convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an "arguable complaint" under the Convention and to grant appropriate relief. The scope of the Contracting States' obligations under Art 13 varies depending on the nature of the applicant's complaint; however, the remedy required by Article 13 must be "effective" in practice as well as in law…"
Discussion
Postscript - section 92 NIAA 2002