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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> STARRED H v Secretary of State for the Home Department (Kenya) [2002] UKIAT 05185 (11 November 2002) URL: https://www.bailii.org/uk/cases/UKIAT/2002/05185.html Cite as: [2002] UKIAT 05185, [2002] UKIAT 5185 |
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[2002] UKIAT 05185
APPEAL No. HX/40618/2001 (STARRED)
Date of hearing: 8 October 2002
Date Determination notified: 11/11/02
JAMILA OMAR HAMZA |
APPELLANT |
and |
|
SECRETARY OF STATE FOR THE HOME DEPARTMENT | RESPONDENT |
"We firmly take the view that an Appellant cannot be heard to claim, for the purposes of his asylum appeal, that he comes from a particular country and, in the same proceedings, for the purposes of s 66, that he does not come from that country. That should be sufficient to deal with any case in which, in the same appeal, an Appellant claims that he is from a particular country but, if the Adjudicator does not believe that, then he claims for the purposes of an appeal under s 66 that he is not from that country. To do so is simply an abuse and we will not tolerate it. It follows that an appeal under s 66, based on the falseness of the information given for the purposes of any other grounds of appeal in the same appeal, will not succeed."
That approach we regard as a very proper one, but we have to consider whether it fits in with the language of the Act because we recognise that as a Tribunal set up under statute, there may be argument about the extent of any inherent jurisdiction that we may have.
"Now clearly at the time that the directions were set, there were indeed grounds on which the Secretary of State could reasonably have set removal directions for Somalia. Had he chosen instead to set directions to, say, Kenya, I suspect that a representative for the Appellant would have argued that this was unreasonable since, on the face of the Appellant's claim, this would have been the wrong country. Accordingly, I conclude that since I deliberately did not deal with the nationality as a separate and preliminary issue, it is now open to me to regard an appeal under s 66(2), albeit it relates to an appeal under s 69(5) of the same Act, as being one which I need not consider. In any case, at the hearing Mr Masters, representing the Respondent, did not specifically either consent to such an extension of the grounds of appeal nor did he demur. However, I cannot believe that the intention of Parliament was to allow an Appellant first to put forward a claim for asylum based on a particular country and then, when it is shown that there was no connection between the Appellant and that country, to argue that he should be able to alter the grounds of appeal so that the removal directions should be held to be invalid. It seems to me that s 66 should not be interpreted in that manner. Nor do I believe that the decision in Zeqaj requires me to do so."
"(2) That person [that is to say a person in respect of whom directions for his removal have been given on the ground that he is an illegal entrant which is the one that matters in the circumstances of this case] 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 s 65 or s 69(5)."
Now that enables a person, in respect of whom appealable removal directions have been given, to say not only that he is a refugee but also that there was no power to give the directions on the facts of his case. What he is not entitled to do is to blow hot and cold and say "On the facts of my case, I am a national of country A and I cannot be returned to country A because it would be contrary either to the Refugee Convention (s 69(5)) or the Human Rights Convention (s 65). But, if you, the Adjudicator, decide that I am not a national of country A, then the removal directions cannot stand because, on the facts that you have then found, there would be in law no power to give them on the ground on which they were given".
MR JUSTICE COLLINS
PRESIDENT