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||Neutral Citation Number:  EWCA Civ 1182
||Case No: C4/2004/2273
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
||Royal Courts of Justice
Strand, London, WC2A 2LL
||12th October 2005
B e f o r e :
LORD JUSTICE KEENE
LORD JUSTICE SCOTT BAKER
||- and -
||THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Transcript of the Handed Down Judgment of
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Mr Simon Cox (instructed by Messrs Harrison Bundey) for the Appellant
Miss Lisa Giovannetti (instructed by The Treasury Solicitor) for the Respondent
HTML VERSION OF JUDGMENT
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Lord Justice Scott Baker:
- This is an appeal brought with the leave of the Full Court (Buxton and Maurice Kay LJJ) against a decision of the Immigration Appeal Tribunal ("the IAT") notified on 10 September 2004 dismissing the appellant's asylum and human rights appeal from an adjudicator (Mr M Shrimpton). The appeal raises an important issue of principle as to the ambit of section 82 of the Immigration and Asylum Act 2002 ("the 2002 Act"). Mr Simon Cox, who has appeared for the appellant, defines the issue thus:
"On an appeal under section 82 of the 2002 Act brought on the grounds that removal from the United Kingdom would breach the United Kingdom's obligations under the Geneva and Human Rights Conventions, does the Immigration Appellate Authority have jurisdiction to take into account what may happen in the course of the immigrant being removed from the United Kingdom and travelling to his safe home area in the country concerned?"
- At the permission hearing the court raised of its own motion, and gave permission to the parties to raise, two issues: (a) whether the IAT had been entitled to find an error of law in the adjudicator's determination and (b) whether the IAT had been entitled to treat the appellant's appeal as a "Country Guidance" case. For reasons that it is unnecessary to explain, neither of these questions has played any part in the appeal. It is common ground that the IAT was entitled to find an error of law on the part of the adjudicator.
- The appellant is a single man aged 30. He is a Kurd from Iraq. He lived in Suleymaniya, a city in the Kurdish Autonomous Area ("the KAA") in North Iraq, from which Saddam Hussein's regime forces were expelled in 1991. He entered the United Kingdom clandestinely on 1 March 2000 and claimed asylum the same day. He was an active member of one of the secular Kurdish political parties and claimed asylum on the grounds that:
a) he had been detained and tortured in the KAA by (i) Islamic groups who considered his political activities blasphemous and (ii) a rival secular Kurdish group and that he remained at risk from them in the KAA.
b) he could not go to Government controlled Iraq because he would be detained and tortured by the Saddam regime as a supporter of the Kurdish opposition to him.
- In broad outline his history of events was as follows. In March 1990 he joined the student wing of the Patriotic Union of Kurdistan ("the PUK"). Later he joined the PUK itself. In September 1990 he was arrested by the Government's Ba'ath party, detained for twelve days and tortured. In March 1991, as part of the successful Kurdish uprising against the Saddam regime, he joined an attack on the Ba'ath party offices which secured the release of his brother and father who had been detained. In September 1996 the Kurdish Democratic Party ("the KDP") joined forces with the Saddam regime and attacked the PUK. The appellant was arrested and detained for nine days. In November 1997 he was again arrested and detained by the KDP, this time for two months and eleven days. On 1 February 1999 he was arrested by the Islamic Kurdish Party for alleged blasphemy, detained for nine days and tortured. On his release he left Suleymaniya, eventually reaching the United Kingdom in March 2000.
- On 16 July 2003 the Secretary of State rejected his claim to asylum and concluded that his removal from the United Kingdom would not breach his human rights, pointing out that Saddam Hussein's regime had been toppled in the Spring of 2003 and that the Coalition Provisional Authority controlled Iraq. Nor was he at risk in the KAA. Relations between the KDP and the PUK had improved and they were working closely with each other. People could safely live in the Kurdish Autonomous Zone and the north without experiencing any problems. The Secretary of State expressed some doubt about the appellant's credibility but that no longer remains an issue. The Secretary of State having concluded (i) that the appellant did not have a well founded fear of persecution and did not qualify for asylum, and (ii) that his removal would not contravene the United Kingdom's obligations under the European Convention on Human Rights (ECHR), nevertheless did not issue any removal directions. That remains the position at the present time.
- A letter from the Home Office dated 19 April 2005 set out the position as it was at the time we heard the appellant's appeal. The relevant paragraph reads:
"We reached agreement on enforced returns with the outgoing Iraqi Interim Government just before the elections in Iraq held on 30 January 2005. However, the new administration has not yet been appointed, although we expect this process to be completed soon. Once ministers are in post we will be confirming our operational plans with them. We cannot at this stage be firm on when enforced returns might start, nor is it possible to disclose the likely mechanics of the returns operation, as no final arrangements have been made pending the operational decision being taken to proceed."
- On 6 August 2003 the appellant appealed to an adjudicator. This was under section 82 of the 2002 Act and was the standard 'one stop' appeal covering asylum and human rights grounds. The appeal was heard on 10 October 2003 and the decision promulgated on 29 October 2003. The appeal was dismissed.
- The appellant sought and obtained leave to appeal to the IAT. The IAT said the adjudicator had in essence dismissed the appellant's claim for three reasons. First, any threat from Islamic extremists had been eliminated; secondly the Saddam Hussein regime no longer existed and thirdly there was in any event a sufficiency of protection although it was not clear from the determination who the adjudicator thought would offer it. The IAT concluded that the adjudicator's determination was unsafe because it was inadequately reasoned in a number of respects. It therefore proceeded to consider the appellant's claim afresh on the basis of the accepted factual history of the appellant and the latest objective country evidence.
- The appellant sought from the IAT an application for a witness summons for the attendance of Miss Hipwell, the head of the country action team of the Home Office, so that she could be cross examined as to the mechanics of the return of each applicant to Iraq. She had filed and served a witness statement setting out the Secretary of State's policy in relation to enforced returns to Iraq which was, in short, that it had been intended to implement a pilot scheme but practical considerations had prevented this. Returns would be on a case by case basis and returnees would be directed to areas where the Home Office was satisfied that the individual concerned was not at risk. The IAT rejected the application saying the witness could speak only to the Secretary of State's policy and it was "not appropriate to allow general cross examination going to the practicability of return which the Tribunal has consistently regarded as outside its remit." The Tribunal said:
"Our function is to consider first whether the appellant would be at real risk of persecution under the Refugee Convention if today returned to his home area in Iraq (Dyli). If the answer to that question is in the negative, the Convention is not engaged. Such a finding will usually (but not always see below at paragraph 38) mean that the appellant cannot succeed in showing a real risk of breach of his protected human rights under Article 3 of the European Convention either, since the risk element must reach the same threshold required to amount to persecution under the Refugee Convention
- The Tribunal went on to say that if there is a real risk of persecution in the home area then the practicability of travel to a safe haven in the appellant's own country may be relevant from the proposed point of access to that safe haven (the internal flight alternative) but unless such a real risk in the home area is established that is not an enquiry on which it was either necessary or appropriate to embark for the purposes of the asylum claim. The position was similar with regard to human rights claims where return to a place of safety was an issue. Accordingly it did not determine that the appellant could travel with sufficient safety from any point of arrival within Iraq to the KAA; it left that for the Secretary of State to decide. There was no reason to think the Secretary of State would not comply with the policy on involuntary returns that had been set out in Miss Hipwell's statement and no issue arose in respect of the method of return.
- The tribunal noted the UNHCR's concerns expressed in a document of 4 March 2004 about enforced returns to Iraq but pointed out that broad humanitarian considerations were for the discretion of the Secretary of State. What they had to consider was whether there was a well founded fear of persecution in the appellant's own area for a Convention reason (and/or a breach of Article 3 of the ECHR). It reiterated that it was not concerned with the practicality or logistics of return. It concluded that the appellant had failed to establish any real risk he had contended for. Neither his asylum claim nor his Article 3 claim was made out and they dismissed the appeal.
- It is common ground that human rights issues may arise in relation to an applicant's route of return or destination. It is suggested that route of return or destination may raise issues in respect of an asylum claim, albeit a person who has a safe home territory to which he cannot for the time being safely obtain access cannot be described as having a well founded fear of persecution and is not a refugee (see Keene LJ in Gardi v Secretary of State for the Home Department  1WLR 2755, 2765 para 35.) The question is whether the Immigration Appellate Authority has jurisdiction to consider such issues.
- Mr Cox suggests that these issues can and should be determined as part of the ordinary appellate process. The issue is the scope of the enquiry that can be carried out by the appellate body. That body has to decide whether the appellant may in fact be removed to an area where there is a well-founded fear of persecution or a breach of human rights in such a way that makes removal in breach of the United Kingdom's obligations. Miss Giovanetti, who has appeared for the Secretary of State, submits that there is no jurisdiction to do so. Such issues attach simply and solely to the lawfulness of removal directions which are under the present legislation entirely separate from the decision to remove. Nowadays, it is not the practice to issue removal directions until the appellate process has been completed. It is premature to consider these issues until removal directions have been issued and one is dealing with a real rather than a hypothetical situation.
- In my judgment the appellant faces an insuperable difficulty in the present case because no removal directions have been set. Thus no one has, at present, any idea how it is intended he should return to his home area in Iraq. The position at the date on which we heard this appeal remained entirely in the air. There was no general or standing arrangement for enforced returns to Iraq; nor was there any specific arrangement for this appellant. Even if there is jurisdiction, there is nothing against which to appeal. Mr Cox submits that the Secretary of State has ruled nothing out; nor has he given an undertaking not to remove until a safe route is available and therefore the point does arise. He says there is jurisdiction in every case, whether the Secretary of State has given removal directions or not. It is a common problem, particularly in Iraq, how an applicant is to get from the airport to his home territory. Mr Cox submits that it matters not that the Secretary of State has given no removal directions. The tribunal never tackled the question it was bound to decide, namely whether if the appellant was removed immediately his human rights would be breached.
- Miss Giovannetti draws a distinction between circumstances in which removal per se puts the United Kingdom in breach of its international obligations, for example because the individual would be at risk of persecution or serious harm if returned to his country of origin, and circumstances in which the only factor that would lead to the United Kingdom being in breach would be the particular route or method of return. The present legislation, she submits, envisages this distinction and covers removal directions separately from leave to enter and leave to remain. I can see the force of this argument and I would only add that in the former category one may not only be considering the individual's situation on return to his home country there may, for example, be an Article 8 reason why removal from this country would per se put the United Kingdom in breach of its international obligations.
- The starting point on the question of jurisdiction is the relevant legislation. The appeal is brought under section 82(1) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). This Act came into force on 3 April 2003 and replaced the Immigration and Asylum Act 1999 ("the 1999 Act"), albeit with savings for pending appeals.
Section 82(1) provides:
"Where an immigration decision is made in respect of a person he may appeal to an adjudicator."
- The meaning of 'immigration decision' is defined by means of a list set out in section 82(2) (a)-(k). It includes: (a) refusal of leave to enter the United Kingdom. What the subsection significantly does not include within the description 'immigration decision' is removal directions. It is true that each of section 82(2) (g), (h) and (i) refer to decisions that a person be removed by way of directions, but the 'directions' are in all instances separate from the decisions and, we are told by Miss Giovanetti, it is extremely rare for removal directions to be set before the appeal against the immigration decision has been determined.
- Miss Giovanetti has drawn our attention to the appellant's grounds of appeal to the adjudicator where the decision appealed against is described as:
"The decision of the Secretary of State to refuse me asylum dated 16.7.03."
- There is no right of appeal against the refusal of an asylum claim as such except under section 83(2) of the 2002 Act, where the qualifying conditions are (i) that the asylum claim has been rejected by the Secretary of State and (ii) that the appellant has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).
- What the appellant in fact appealed against in the present case was the Secretary of State's decision refusing him leave to enter the United Kingdom, albeit inherent within that question was an asylum issue. The adjudicator noted that the Secretary of State refused to grant the appellant leave to enter as well as refusing asylum. Miss Giovanetti submits, in my view correctly, that the adjudicator treated the appeal as bring brought under section 82(1) and that it was triggered by refusal of leave to enter which was, by definition, an immigration decision under section 82(2).
- Section 84 (1) sets out the grounds on which an appeal may be brought against an immigration decision. These include:
"(g) that the removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act as being incompatible with the appellant's Convention rights."
This, submits Miss Giovannetti, is concerned with removal in principle and where an appeal is brought under this provision against an immigration decision the issue is whether removal per se would breach the United Kingdom's international obligations. This, it is submitted, involves consideration of the circumstances in the country of origin and the facts of the particular case, but not the route of return or travel arrangements whether they have been identified or not.
- Mr Cox, on the other hand, argues that sub paragraph (g) is to be read more broadly as encompassing a ground of appeal that the particular route or method of proposed removal would breach the United Kingdom's obligations. 'Removal' includes the detail of how it is to be achieved; method of return is an integral part of the removal.
- It seems to me at first sight that sub paragraph (g) is directed at the decision to remove and whether a removal in consequence to that decision would be unlawful as breaching the United Kingdom's international obligations. The appellant's construction involves reading into the provision a reference to the route of return.
- Normally the removal directions are quite separate and distinct from the immigration decision. Ordinarily they follow the prior decision to remove in principle. It is a two stage process. As Laws LJ pointed out in R (Mahmood) v Secretary of State for the Home Department  1WLR 842, 852 para 29,
"Where, as here, the court is required to review the legality of an administrative decision already made it is generally no part of its duty to go further and review also, as a distinct exercise, the legality of the decision-maker's carrying the decision into effect at some future date. Any other view would submit the court's public law jurisdiction to undesirable and possibly insupportable distortions. In any given case, within and without the immigration field, there may be many reasons why a public decision maker might not carry into execution a decision which he has earlier announced; or he might give effect to it subject to modification or qualification."
True, Laws LJ was speaking in the context of judicial review, but the general point is well made and emphasises the distinction between on the one hand refusing the appellant leave to enter and on the other setting directions for his removal. Also, removal directions may change.
- The scheme of the 2002 Act is such as to provide for a right of appeal in respect of specified immigration decisions. Thus the Act provides for a right of appeal against a decision to remove in principle and this is exercisable before any directions identifying how removal is to take place have been issued. The decision against which the appeal is made includes the decision to issue removal directions, but not the actual directions themselves which ordinarily are given separately and later.
- It is, in my judgment, a very strong point in support of Miss Giovanetti's argument that the 2002 Act makes a change from the position as it was under the 1999 Act where the removal directions themselves were capable of attracting a right of appeal (see section 69 (5). It is difficult to believe that the right of appeal has been removed by an oversight.
- What is the remedy then when it is contended that removal directions that have been made are unlawful? Miss Giovanetti's answer to this question is that, in the absence of any statutory right of appeal, the appropriate route is judicial review, see R v Immigration Officer ex parte Shah  1WLR 544 . She submits that there are advantages in judicial review as against a statutory appeal. With judicial review the court can quash the removal directions and the Secretary of State can then seek to identify some alternative route. On the other hand if the right of appeal against the removal directions is all part and parcel of the right of appeal against the immigration decision the appellant could succeed on an appeal against refusal of leave to enter when the only valid basis relates to the proposed route of return. This would seem strange where Parliament has, apparently deliberately, excluded the right to appeal against removal directions. Mr Cox points out that there is a real difference between judicial review and an appeal as of right to a fact-finding body
- Mr Cox makes a number of submissions about the statutory scheme. He submits that under the United Kingdom legislation one is concerned with removal to a particular country or territory. One is necessarily concerned therefore with removal to a particular destination rather than removal in the abstract. Removal per se would only rarely breach the United Kingdom's obligations and therefore it is only when the destination is considered that the Tribunal can properly evaluate the issue; this involves consideration of the detail of how the removal is to be achieved.
- Next Mr Cox submits it is necessary to look at the approach of the courts in the past. In my view, however, there is a limit to the value of this exercise as none of the previous cases was concerned with the 2002 Act. They all pre-date Parliament's decision to remove 'removal directions' from the definition of 'immigration decision'.
- Mr Cox's argument, as I understand it, runs thus. In cases such as Canaj v Secretary of State for the Home Department  INLR 342 and Adan and Nooh v Secretary of State for the Home Department  1WLR 1107 it was undisputed that jurisdiction to consider whether removal would breach the Refugee Convention (i) permitted determination whether the particular destination within the country concerned (and any travel within the country to a safe area) would give rise to persecution and (ii) permitted the scope of the inquiry to be limited by a sufficiently clear indication by the Secretary of State of a destination or excluded destination within the country concerned. Both sides referred to Gardi. The facts have similarities to the present case but involved the 1999 Act; also it was concerned with the Refugee Convention and not the Human Rights Convention. Mr Gardi's application for asylum was refused and directions were given for his removal by scheduled airline to Iraq at a time and place to be notified. He appealed to an adjudicator under section 69(1) and (5) of the 1999 Act. He claimed a fear of persecution both within his home area and from the government of Iraq and contended that the removal directions themselves put him at risk of persecution because there was no direct travel to his home area and that the only scheduled flights to Iraq were by way of Baghdad which was under the control of the Iraq authorities. The adjudicator did not accept he had a well-founded fear of persecution in his home area but, having considered the removal directions, upheld his appeal on the ground that, notwithstanding the undertaking approved by the Secretary of State for the Home Department in March 2001 that Kurdish asylum seekers would only be returned under supervision of British officials so as to ensure they reached Northern Iraq safely, there was nevertheless a real risk of harm amounting to persecution if returned to Iraq via Baghdad. The Secretary of State's appeal was upheld by the IAT who regarded the undertaking as binding and concluded that he had not established a well-founded fear of persecution. The Court of Appeal held that in order to be a refugee within the Convention definition an applicant had to satisfy both limbs of article 1A(2) by establishing that he was outside the country of his nationality owing to a current well-founded fear of persecution for a Convention reason and that he was unable or unwilling owing to such fear to avail himself of the protection of that country. A person would not satisfy those conditions if there was a safe part of his country to which he could reasonably be expected to relocate and would not be put at risk in the process of getting there.
- Keene LJ, with whom the other members of the court agreed, referred to Dyli v Secretary of State for the Home Department  Imm AR 652, 662, para 34, cited with apparent approval by Simon Brown LJ in Canaj:
"The question of internal flight only arises where a claimant has a well-founded fear of persecution in his own home area. If he has no such fear there, the possibility of his movement elsewhere simply does not arise. He is not a refugee."
- Having said that "home area" should not be interpreted too narrowly he accepted the passage from Dyli as an accurate statement of the position. He went on at para 29:
"Of course, that assumes that he can be safely returned to that area, a matter which I shall turn to when dealing with the second way in which the applicant's case on the "fear test" is put."
That second way was the absence at that time of obtaining access to the KAA other than via Bagdhad.
Keene LJ went on:
"It is of course right that the removal directions in this case specify Iraq as the place to which removal would take place albeit that they do not specify a date or time. Moreover, section 69(1) of the Immigration and Asylum Act 1999 gives a right of appeal on the ground that removal "in consequence of the refusal would be contrary to the Convention.""
- He said that removal to the KAR (as the KAA is also known) via Baghdad or any other part of Iraq under the control of the State's central government would under the circumstances prevailing at that time be contrary to the Convention. But, he added, the removal directions had to be read in the light of the undertaking. He said:
.it is sufficiently clear that the Secretary of State does not propose to remove Mr Gardi or others in his position to the KAR via Baghdad or any other part of Iraq controlled by its government, unless and until a Convention-compliant method of so doing can be achieved or a means is found of achieving access to the KAR which avoids Iraqi-controlled territory altogether. While it might be argued that in theory the applicant in the present situation is "outside the country of his nationality" "owing to a well-founded fear of being persecuted", the reality is that he is outside simply because a safe method of return to the KAR is not at present available in practice. He will not be returned to the KAR until such a method is available. In the light of the Secretary of State's undertaking, the applicant cannot have a fear that he will be returned to a part of Iraq where he will be persecuted.
35 I cannot see that a person who has a safe home territory, to which he currently cannot obtain access, is to be described as having a well-founded fear of persecution, any more than would someone who comes from a "safe" land-locked state to which he currently cannot obtain access because of its hostile neighbours where he would be persecuted. He cannot currently be returned but he is not a refugee
- Gardi was a case where the right of appeal arose under section 69(1) and (5) of the 1999 Act. Section 69(1) gave a person refused leave to enter a right of appeal on the ground that his removal in consequence of the refusal would be contrary to the Convention. Section 69(5) gave him a separate right of appeal against the removal directions. The position of course changed in the 2002 Act with the removal of the freestanding right of appeal against removal directions. However section, 84(1)(g) does seem to me to be expressed in broadly similar terms to section 69(1) of the 1999 Act to include the United Kingdom's obligations under the ECHR as well as under the Refugee Convention.
- Mr Cox goes on to submit that, despite 'removal directions' no longer being encompassed within the definition of 'immigration decision', Parliament has not changed the Immigration Appellate Authority's (now the Asylum and Immigration Appeal Tribunal's) jurisdiction. When a person was refused leave to enter he was given a right of appeal by section 69(1) of the 1999 Act on the ground that 'removal in consequence of the refusal' would breach the Geneva Convention. Section 84(1)(g) of the 2002 Act is expressed in similar terms except that it has been extended so as to include human rights grounds. Accordingly, he submits the various authorities to which he has referred which were all decided under the old legislation provide some assistance as to how section 84(1)(g) should be interpreted. I can see some force in this submission although not in circumstances where the Secretary of State gives removal directions subsequent to, and quite separate from, his decision to remove.
- He makes the point that it was the clear policy of the 1999 Act that there should be a "one-stop" procedure ensuring that all issues were dealt with at the same time. He referred to Auld LJ in R (Kariharan) v Secretary of State for the Home Department  QB 933, 939 para 10:
"First, the clear policy of Part IV of the Act is that all possible reasons for allowing a person to remain in the United Kingdom should normally be considered on a single occasion by the Secretary of State and on appeal, in one set of proceedings. Section 65(3) permits a person appealing under any other right of appeal also to raise a human rights ground. The Act provides for the prevention of abusive, repetitive appeals of any sort by a "one-stop" procedure set out in sections 74-77 and by specific limitation in section 73 on further appeals. The latter empowers the Secretary of State, following final determination of any appeal under the Act and the subsequent giving of notice of appeal under section 65, to certify abusive, repetitive claims under that section, the effect of the certificate being to treat the appeal so far as relating to that claim as finally determined. The Secretary of State may so certify where, in his opinion: (1) the claim could reasonably have been, but was not, included in a "one-stop" statement under section 74 or in the original appeal; (2) one purpose of such a claim would be to delay the removal; and (3) there is no other legitimate purpose for the claim."
- Next he submits that the 'one-stop' policy provision in the 1999 Act has been carried forward to the 2002 Act (see in particular sections 96 and 120) and third he submits that Parliament's desire to achieve a speedy and complete appeals procedure is emphasised by the replacement of judicial review of the IAT's refusal of permission to appeal with section 101 of the 2002 Act.
- The issue in Kariharan was whether any decision to remove a person from the United Kingdom was a decision "relating to that person's entitlement to enter and remain" for the purposes of section 65(1) of the 1999 Act. It was held by the Court of Appeal that removal directions, whether free-standing or consequent on some earlier refusal of leave, and whether regarded as a substantive decision or administrative machinery, were capable of being determinative of that person's entitlement to enter or remain. Accordingly, removal directions given after the commencement date of section 65 were subject to appeal under that section on human rights grounds notwithstanding that the original decisions as to the claimants' immigration status were taken before that commencement date.
Section 65(1) provided:
"A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to a person's entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision."
Auld LJ summarised the competing arguments at para 22:
"22 Indeed, Mr Tam prayed in aid and stressed the discretionary nature of removal directions, including the possibility of their cancellation, whether or not followed by new directions. None of such actions, he maintained, did away with the underlying decision giving rise to them. He submitted that, apart from the particular problems of transitional cases, there is no reason why any question should arise as to the status of removal directions, since the claimant cannot, by challenging them, unseat an earlier decision of disentitlement.
23 Mr Nicol and Mr Gill, on the other hand, stressed the breadth of the draftsman's words in section 65 in the phrases "any decision under the Immigration Acts", "relating to" and "entitlement to enter or remain (emphasis added)
He rejected the Secretary of State's submissions saying :
"28 In my view, Mr Nicol's and Mr Gill's submissions are well founded. In particular, given the considerable overlap between asylum and human rights grounds, Parliament must have intended that both should be dealt with in the same way, where necessary on appeal from removal directions."
Sedley LJ said at p.948:
"37 Secondly, the narrow reading of section 65(1) for which the Secretary of State contends reduces it to almost nothing. It is practically impossible to construct a decision as to a person's immigration status alone which engages his or her human rights. It would be otherwise if the decision that a person has no entitlement to enter or remain in the United Kingdom automatically resulted in their removal-Mr Tam's formulation admits as much-but, crucially, it does not. The Secretary of State has to decide in every case whether or not removal should follow the finding that a person is not entitled to enter or remain in the United Kingdom. It is in relation precisely to this elective, not legally automatic, decision to remove that human rights issues almost always arise. It would be worse than odd-it would be Machiavellian-if Parliament in enacting section 65 had, despite the ostensibly generous wording, in reality created an almost empty right of appeal.
38 The Secretary of State seeks to meet this by reminding us that in practice, wherever he considers it merited, he will generate a right of appeal under section 65(1) by issuing a fresh decision on the applicant's immigration status. This in my judgment does not make things better: it makes them worse. As Lord Shaw of Dunfermline in Scott v Scott  AC 417, 477 classically pointed out, "To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand." Much the same is true of administrative discretion. The difference is, of course, that administrative discretion is subject to control by judicial review. But this only increases the anomaly inherent in the Home Secretary's case. He accepts that, if his reading is adopted, judicial review of a decision to remove will lie on human rights grounds against both the Secretary of State and the immigration officer by virtue of section 6 and 7 of the Human Rights Act 1998. What possible legislative policy could this represent? The one-stop policy?"
Arden L.J agreed with Sedley LJ that the Secretary of State's argument could not succeed on the plain wording of section 65(1) and added:
"In my judgment, it is unnecessary to read section 65(1) in a broad manner, or to give "entitlement" any special meaning. The Secretary of State accepts that section 65(1) includes some decisions which are not decisions which create or refuse to create or terminate an entitlement to enter or remain: see paragraph (b) of Mr Tam's formulation set out above. The decisions in paragraph (b) are therefore decisions which are connected with, and therefore relate to, a person's entitlement to enter or remain in the United Kingdom. However, the Secretary of State does not accept that all such decisions are included. In my judgment, there is no basis on which this section can properly be read down in this way."
- In my judgment Kariharan has to be read as a decision on the true construction of section 65(1) of the 1999 Act. The difference between section 65(1) of the 1999 Act and section 82(1) of the 2002 Act is that an 'immigration decision', that is the decision giving rise to a right of appeal, is defined in subsection 82(2) as covering some 12 different types of decision not one of which is removal directions. Section 65(1) is dealing with a very specific situation.
- For Mr Cox to succeed he has to persuade the court that the argument in Kariharan has survived the change in the legislation and the fact that removal directions are not listed in section 82(2). In my judgment he has failed to do so. Indeed it was suggested during argument that the change in the law removing 'removal directions' from within the definition of 'immigration decision' may well have been precipitated by Kariharan.
- It is in my judgment helpful to look briefly at the legislative history. Before the 2002 Act the relevant appeal provisions were to be found in section 69 of the 1999 Act. Section 69 provided:
(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.
- The provisions before that were to be found in section 8(1) and (4) of the Asylum and Immigration Appeals Act 1993. They were in virtually identical terms to section 69(1) and (5) of the 1999 Act.
- The important difference between those provisions and the appeal provision in the 2002 Act is that there is no longer any express provision for an appeal against removal directions. Miss Giovannetti submits that this is the clearest possible indication that there is no longer a right of appeal against removal directions. The fact that the previous legislation gave a quite separate and free standing right of appeal against removal directions and that there is no longer any such right shows that there is no longer jurisdiction to hear an appeal against removal directions.
- In my judgment the first and fundamental matter that is fatal to the appellant's case is that no removal directions have ever been set. Even assuming jurisdiction, there is nothing against which any appeal could bite.
- In my judgment the fact that the 2002 Act does not include 'removal directions' within the description of 'immigration decision' against which there is a right of appeal is determinative of Parliament's wish that there should no free-standing right of appeal against removal directions. This seems to me to be entirely consistent with the desire to streamline the appellate process in immigration and asylum cases and prevent repeat applications. That, however, leaves open the question of jurisdiction in cases where removal directions are given as part of, or are entirely incidental to, an immigration decision that is itself appealed as falling within section 84(1)(g). Also, there may be circumstances where the Secretary of State adopts a routine procedure for removal and return so that the method or route of return is implicit within the decision to remove. There would obviously be advantages in such cases for all issues, including any arising out of the proposed route or method of removal, to be dealt with at one and the same time.
- In my view the appellate tribunal's jurisdiction attaches to an immigration decision as defined in section 82(2) of the 2002 Act. In order to found an appeal an appellant would have to challenge one or more of the decisions specified in subsection (a) to (k). If the Secretary of State chose to give removal directions at the same time as and linked to, for example his refusal of leave to enter the United Kingdom (which is not, as I understand it his ordinary practice at the present time) then it seems to me that commonsense dictates that both should be considered at the one appeal. That would be entirely in keeping with the policy of the legislation. It also accords with the approach of the Court in Kariharan. Furthermore, I regard the wording of section 84(1)(g) as wide enough to permit this.
- What I do not think the present legislation permits is an appeal against entirely freestanding removal directions as would be the case when they are made separately on a later occasion. In such circumstances the remedy for unlawful directions would be a judicial review. It is, however, unnecessary for present purposes to decide the extent of the appellate tribunal's jurisdiction in circumstances where removal directions are given at one and the same time as an appealable immigration decision or where there is an established route of return which it is known will be used.
- The present appeal in my judgment fails because no removal directions have been set. The question whether, when they are, there could be a breach of the United Kingdom's international obligations is wholly academic. What directions the Secretary of State eventually decides to give, if any, are a matter for him. If when he gives directions it is contended they are unlawful because they breach the United Kingdom's international obligations the remedy would be judicial review. There is no right of appeal under the 2002 Act.
- I would dismiss the appeal.
Lord Justice Keene:
- I agree. In particular, I agree that what is of fundamental importance in this case is that no removal directions have yet been given. That means that the method of return to the appellant's home area and the route which would be taken in pursuance of such directions are wholly unknown. In such circumstances the appellant is in no position to establish either a well-founded fear of persecution or a risk amounting to a breach of Article 2 or Article 3 of the Human Rights Convention, arising solely as a consequence of the method or route of return to his home area.
- It may be that there will exist cases where the appellant may be able to make good this deficiency, even in the absence of removal directions, because the Secretary of State has committed himself through a policy statement or otherwise to a particular method and route of return. In such a case, it may be implicit in the decision to remove from the United Kingdom that a particular method and route would be adopted and, if so, the safety of that method and route may be considered by the appellate tribunal as being part and parcel of the "immigration decision" under section 82(1). It would be open to an appellant to rely on ground (g) under section 84(1), just as he could if the Secretary of State had chosen to give removal directions as part of the immigration decision. Like Scott Baker LJ, I take the view that the wording of section 84(1)(g) is wide enough to give the appellate tribunal jurisdiction to take into account the "en route" risks in such cases. But I share Scott Baker LJ's view (paragraph 47) that the legislation does not enable an appeal to be brought against later freestanding removal directions.
- In the present case, no method or route of return had been specified as yet by the Secretary of State. The appellant was, in effect, asking the appellate tribunal to speculate about such matters and to assess the risks involved in a hypothetical situation. The tribunal was right to reject such a course of action. If, in due course, removal directions are set which allegedly give rise to a real risk to the appellant, any challenge to those directions will have to be by way of judicial review. I too would dismiss this appeal.
- I agree with both judgments.
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