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England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2005] EWCA Civ 1554

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Neutral Citation Number: [2005] EWCA Civ 1554
Case No: C4/2004/2351

The Hon Mr Justice Ouseley

Royal Courts of Justice
Strand, London, WC2A 2LL
14th December 2005

B e f o r e :



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(Transcript of the Handed Down Judgment of
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Manjit S Gill QC & Mohammed Azmi (instructed by ZMAS Solicitors) for the Appellant
Parishil Patel (instructed by The Treasury Solicitor) for the Respondent



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    Lord Justice Latham: :

  1. The appellant arrived at Heathrow on the 3rd June 2000 on a flight from Nairobi and claimed asylum immediately. He did so on the basis that he was a Somali national and a member of the Bajuni tribe which had been subject to persecution and was unprotected by the state. His claim for asylum was refused by the Secretary of State in circumstances to which I will return later on the grounds that the appellant was not a Somali. The appellant's appeal to the Adjudicator was dismissed on the same ground, as was his appeal to the Immigration Appeal Tribunal. The Tribunal's decision was a starred decision and the Tribunal itself gave leave to appeal to this court, on the basis that a number of difficult issues relating to the treatment of cases where there is a dispute as to the nationality of an asylum seeker were raised in the appeal which could usefully be resolved by this court. I suspect , however, that much of our decision is likely to be of limited use as the appeal comes to us under the provisions of the Immigration and Asylum Act 1999 ("the 1999 Act") which was replaced on 3rd April 2003 by the Nationality, Immigration and Asylum Act 2002. Nonetheless, there are some issues of general importance which have been argued before us which may well have relevance in the context of the new statutory regime.
  2. The appeal both to the Tribunal and to us is concerned with the part that removal directions play in appeals under sections 65 and 69 of the 1999 Act. The problem in the present cases arises out of the way in which the Secretary of State dealt with the question of removal directions when he gave his decision to refuse asylum. In the letter of the 26th March 2001 notifying the appellant of his decision, the Secretary of State said at paragraph 9:
  3. "The Secretary of State is not satisfied that you are Somali and has refused your claim for asylum on the basis that you are not Somali. Directions will be given for your removal to Somalia as this is the country of which you claim to be a national. This has been done solely in order to enable you to appeal to an Adjudicator and enable the decision to refuse your claim for Asylum to be reviewed. If you appeal against the refusal of your claim for asylum and the Special Adjudicator also concludes you are not Somali, we will seek to establish your true nationality."
  4. On the 29th March 2001 the appellant was served with a "Notice of Refusal of Leave to Enter after Refusal of Asylum". This gave formal notification of the decision in the following terms:
  5. "You have applied for asylum in the United Kingdom. The Secretary of State has decided to refuse your application for the reasons set out in the attached notice.
    You have not sought entry under any other provisions of the Immigration Rules.
    I therefore refuse you leave to enter the United Kingdom."
  6. The notice, however, continued:
    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.
    You are entitled to appeal to the independent appellate authorities 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 United Kingdom's obligations under the 1951 United Nations Convention Relating to the Status of Refugees . Notice of appeal on this ground must be received by 18th April 2001"
  8. The entitlement to appeal was identified in a footnote as being pursuant to Section 69(1) of the 1999 Act. This sub-section relates to appeals against refusals of leave to enter the United Kingdom. The Tribunal identified the issues which arose in the following terms:
  9. "Did the notice actually contain or evidence removal directions? Is there a specific statutory appeal against them in this case if they were removal directions? If not, what is the relevance here of the stated country of removal in the human rights and asylum appeals under section 65(1) and 69(1)?"
  10. In order to understand these issues it is necessary to rehearse the relevant statutory provisions. I start with the provisions of the Immigration Act 1971 which provides for the need for a foreign national to obtain leave to enter the United Kingdom. Schedule 2 to that Act empowers the immigration authorities to give directions for the removal from the United Kingdom of those refused leave to enter. The effect of paragraphs 8, 9, and 10, of that Schedule is that directions may be given for a person's removal, which will usually be in pursuance of the power under paragraph 10(2) namely "directions for his removal in accordance with arrangements to be made by the Secretary of State to any country or territory to which he could be removed under sub-paragraph (1)." That refers back ultimately to paragraph 8(1)(c) which empowers the Secretary of State to give such directions:
  11. "To a country so specified being either –
    (ii) A country of which he is a national or citizen; or
    (ii) The country or territory in which he has obtained a passport or other document of identity; or
    (iii) a country or territory in which he embarked for the United Kingdom, or
    (iv) A country or territory to which there is reason to believe that he will be admitted."
  12. The relevant rights of appeal are contained in the 1999 Act. Section 59 provides:
  13. "(1) A person who is refused leave to enter the United Kingdom under any provision of the1971 Act may appeal to an adjudicator against –
    (a) the decision that he requires leave; or
    (b) the refusal.
    (3) Sub section (4) applies if a person appeals under this section on being refused leave to enter the United Kingdom and
    (a) before he appeals directions have been given for his removal from the United Kingdom; or
    (b) before or after he appeals the Secretary of State or an immigration officer serves on him notice that any directions which may be given for his removal as a result of his refusal would be for his removal to a country or one of several countries specified in the notice.
    (4) The appellant may –
    (a) object to the country to which he would be removed in accordance with the directions, or
    (b) object to the country specified in the notice (or to one or more of those specified),
    and claim that he ought to be removed (if at all) to a different country specified by him."
  14. Section 65 provides:
  15. "(1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that persons entitlement to enter or remain in the United Kingdom…. acted in breach of his human rights may appeal to an adjudicator against that decision ….
    (2) For the purposes of this part –
    (b) An authority acts in breach of a persons human rights if he acts or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998
    (5) If the adjudicator or the Tribunal, decides that the authority concerned –
    (b) acted in breach of the appellant's human rights, the appeal may be allowed on the ground in question."
  16. Section 67 provides:
  17. "This section applies if directions are given under the 1971 Act for a person's removal from the United Kingdom –
    (a) on his being refused leave to enter,
    (2) That person may appeal to an adjudicator against the decision on the ground that he ought to be removed (if at all) to a different country specified by him."
  18. Section 68 provides:
  19. "(1) Section 67 does not entitle a person to appeal against direction on his being refused leave to enter the United Kingdom unless:
    (a) he is also appealing under section 59(1) if he requires leave to enter;
    (2) If a person is entitled to object to a country on appeal under s. 59 … and -
    (a) he does not object to it on that appeal, or
    (b) his objection to it on that appeal is not sustained
    section 67 does not entitle him to appeal against any directions subsequently given as a result of the refusal or order in question, if their effect will be his removal to that country.
  20. Section 69 provides:
  21. "(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 mention 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 pursuant to the directions will be contrary to the direction.
    (6) "Contrary to the Convention" means contrary to the United Kingdom's obligations under the Refugee Convention."
  22. The reference in section 69(5) to section 66 is not of direct relevance in the present case as it deals with the right of those alleged to be illegal entrants or overstayers to appeal on the grounds that there was no power to give the directions in question.
  23. Paragraph 21 of Schedule 4 of the Act provides:
  24. "(1) On an appeal to him under Part IV, an adjudicator must allow the appeal if he considers –
    (a) that the decision or action against which the appeal is brought is not in accordance with the law or within the immigration rules applicable to the case, or
    (b) if the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently,
    but otherwise must dismiss the appeals"
  25. The reasoning of the Tribunal also depended upon Articles 1A and 33 of the Refugee Convention. Article 1A contains a number of definitions of refugee for the purpose of the Convention which includes:
  26. "A person who …. owing to a well founded fear of being persecuted for reasons of race, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country ……."
  27. Article 33 provides:
  28. "1. No contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."
  29. This is commonly known as the provision which prevents refoulement, as a result of the use in the French text of the verb "refouler" to describe a return in such circumstances.
  30. Returning to the present case, the appellant appealed to the adjudicator under sections 65 and 69 of the 1999 Act, the conclusion of the Adjudicator was as follows:
  31. "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. That is not at all to say that I believe 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 evidence relating to the conditions there."
  32. Before the Tribunal, Mr Manjit Gill QC, who appeared on behalf of the appellant, as he did before us, submitted in essence that the conclusion of the adjudicator made it plain that the appeal should have been allowed. The Secretary of State, he submitted, had made directions for the appellant to be removed to Somalia. The adjudicator had concluded that that "would be quite wrong" and that necessarily carried with it the implication that the decision would not be "in accordance with the law", as not being within the powers given to the respondent in paragraph (8)(i)(c) to Schedule 2 of the 1999 Act; alternatively it would involve a breach of either the Geneva Convention or of the European Convention on Human Rights or both. Accordingly the appeal must be allowed and the decision to refuse him leave to enter should be revisited.
  33. The Tribunal dismissed the appeal on the grounds that the letter and the formal notice served on the 29th March 2001 did not, when read together mean that removal directions under Schedule 2 to the 1971 Act had been given. The question of where an asylum seeker would be returned to was capable of being relevant to a section 69(1) appeal on the basis that an asylum decision requires the decision-maker to consider whether to return the asylum seeker to that country would amount to refoulement, contrary to Article 33 of the Convention. But that issue only arose if the asylum seeker has satisfied the authorities that he was entitled to the protection of the Convention as a refugee; and this appellant had not. So far as the possibility of a breach of his human rights was concerned, that did not arise because the Secretary of State had made it plain in the letter that the question of where he would be returned to would be reconsidered once his true nationality had been established.
  34. Mr Gill essentially repeated before us the arguments that he had put to the Tribunal. The first and critical question for the purposes of the facts of this case is whether or not the Tribunal was correct to conclude that the letter of the 26th March, together with the notice of the 29th March 2001 did not constitute removal directions for the purposes of the 1999 Act. I consider that the Tribunal was correct. Although the notice made specific reference to "Removal Directions", it did so ambiguously, in that the two alternatives, namely "I have given/propose to give directions….." remained unresolved. But taken together with the letter it seems to me to be clear that the Secretary of State was not intending to give directions at that stage, but was intending to revisit the matter in the light of the results of any appeal. This is consistent with the fact that the right of appeal was identified in the notice as a right under Section 69(1) of the 1999 Act, namely an appeal against the decision to refuse the appellant leave to enter. This should be contrasted with the notice given to the appellant in Jazayeri –v- SSHD [2001] INLR 489 where the removal directions were unambiguous and the appellant was informed that he had a right to appeal against those directions (rightly or wrongly).
  35. In strict terms, the rights of appeal in relation to directions are clearly circumscribed by the 1999 Act. Section 59(1) and 69(1) specifically refer to rights of appeal against refusals of leave to enter. As far as directions are concerned these can be the subject of objection under section 59(4), and appeals under section 67, subject to the limitations in section 68, and section 69(5). It seems to me that the 1999 Act, accordingly, has provided expressly for the circumstances in which directions can be the subject of appeals in such a way as to preclude the argument that in some way an appeal under section 59(1) or 69(1) includes an appeal against directions. However, it is clear that section 65(1) provides a right of appeal in human rights claims against removal directions, even though not expressly, because such directions clearly relate to the right of the would be immigrant to remain. But there are no other rights of appeal against such directions as such, and in my view no such right can be implied. The directions, however, if made, are clearly relevant in the sense described by the Tribunal, which I have identified in paragraph 19 above, in an asylum appeal
  36. In one sense that resolves this appeal. There being no appeal from the finding of the adjudicator that the appellant was not a Somali, he could not establish refugee status under Article 1A of the Convention because he had not been able to satisfy the adjudicator on the factual basis of his claim to have been the subject of persecution or of being at risk of persecution which depended on his purported Somali nationality. No question therefore arose as whether or not removal to Somalia would result in a breach of Article 33. Equally, because his account was wholly disbelieved, there could be no basis upon which the mere refusal of leave to enter could amount to a breach of his human rights. As the Tribunal held, the clear statement of intent by the respondent to reconsider the matter in the light of any findings made on the appellant's appeal, meant that no question arose, or arises now, as to whether any decision has been made which is capable of affecting his human rights so as to entitle him to appeal under section 65(1) of the 1999 Act. In both these respects, therefore, I consider that the Tribunal was correct.
  37. There is, however a problem which arises out of two passages in the decision of the Tribunal dealing with these issues. In paragraph 36 the Tribunal said as follows in relation to the appeal on the claim for asylum:
  38. "Mr Gill suggested that the Tribunal should consider whether as a non-Somali the appellant would be persecuted in Somalia. We decline to consider that: the appellant does not come within the definition of a refugee. Also, it would be impossible for the basis of a fear of persecution to be established credibly. And it would be an abuse of process for him to say his claim should be dealt with on any other basis than that which he put forward. He cannot have it every which way. After all, he denies he is a non-Somali. Finally, as we have said, if the appellant is not Somali, and he is found not to be, the Secretary of State has said that he does not propose to remove him there but instead intends to investigate his true nationality. So there is no basis, on that factual basis for concluding that there would be a breach of Article 33."
  39. Then in paragraph 40, dealing with the human rights claim, the Tribunal said:
  40. "For the purposes of the ECHR, the issue is whether the removal as proposed to Somalia involves a breach of the claimant's human rights. The problem faced by the appellant is as to the basis of his claim that he would be subject to treatment in breach of Article 3. He cannot say that he will be treated as Somalian, because he is not of Somalian nationality. He cannot be heard to say in this appeal that he would be ill treated as a non-Somali because that would be an abuse of process. He cannot in the same appeal maintain two wholly inconsistent stances. He cannot give evidence in support of an appeal on the basis that if he is disbelieved as to his nationality and that basis for his claim goes, he has another story and can claim to be entitled to assert a case which he has previously denied. In reality, the lies told by the appellant also make it impossible for any assessment of his human rights position to be carried out. Even if it were possible, in theory, for someone to show that he would be ill-treated, whatever his country of origin were he to be sent say to Somalia, it would be something of an exceptional case and would involve giving credence to someone found lacking in credibility on a fundamental issue. It is not obvious why such a person should be believed. But the appeal system should not permit itself to be abused, against such a theoretical case."
  41. Mr Gill submits that in importing into decisions in this type of case the concept of abuse of process, the Tribunal was wrong. He submits that in asylum appeals under section 69(1) and human rights appeals under Section 65(1) of the 1999 Act, the court is concerned with ensuring the United Kingdom's compliance with its treaty obligations. In those circumstances, it would be wrong for the authorities to preclude a would-be immigrant from asserting rights based upon the facts believed to be true by the authorities simply on the basis that those facts were contrary to his primary claim. If, taking this case as an example, the authorities came to the conclusion that the appellant was Kenyan and not Somali, they could not lawfully impose removal directions to Somalia, not only because that would not be within the powers given by Schedule 2 to the 1971 Act, but would also inevitably involve a breach of the appellant's rights under Article 8 of the European Convention (leaving aside any questions under Articles 2 and 3).
  42. I confess to being uneasy about the use of "abuse of process" in this context. It was not a necessary tool to use for the purposes of resolving the appeal in this case. The fact that his claim to be a Somali was rejected was in itself sufficient to determine the issues in this appeal. For the reasons that the Tribunal gave, and with which I have agreed, that meant that the appellant had simply failed to establish his status as a refugee which depended upon his account of how he had been treated in Somalia, and prevented him on the facts of this case, and in the absence of directions that he be removed to Somalia which could have been the subject of an appeal under section 65(1) of the 1999 Act, from establishing any case under the European Convention on Human Rights and therefore the Human Rights Act 1998.. The issue might have to be revisited in relation to any appeal or other challenge to removal direction once given. But for my part I do not consider that it would be right to pre-empt that issue. It may or may not arise in this case depending upon the conclusions of the Secretary of State as to the appropriate removal directions in the light of his ultimate findings in relation to the appellant's nationality and the course he proposes to take as a result.
  43. Lady Justice Arden:

  44. I agree with both judgments.
  45. Lord Justice Pill :

  46. I agree with Latham LJ that the appeal should be dismissed and for the reasons he gives. Moreover, the Secretary of State was entitled to make the decision he did when he did and was not obliged first to resolve consequential issues as contended ('one stop') on behalf of the appellant.
  47. I share Latham LJ's unease about the Tribunal's adoption of the concept of abuse of process in this context. Decision makers are expected to be astute in assessing the credibility of applicants for asylum and an adverse finding on credibility may conclude an issue. However, not only may there be genuine uncertainty as to an applicant's nationality, but the fact that a claim is inconsistent with the first claim made does not of itself deprive an applicant of the protection of the Refugee Convention or the European Convention on Human Rights. There may be cases in which an alternative case, found by the decision maker to reflect the true state of affairs, requires the United Kingdom, in performance of its international obligations, to provide an applicant with protection.
  48. I would add a reference to section 84(1)(g) of the Nationality, Immigration and Asylum Act 2002, which did not apply to the case under consideration. It provides, as the Secretary of State has pointed out, a ground of appeal to the Asylum and Immigration Tribunal against an immigration decision, which requires consideration by the Tribunal of whether removal in consequence of the decision would breach the Refugee Convention or Section 6 of the Human Rights Act 1998, as being incompatible with Convention Rights.

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