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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> STARRED AM (“Upgrade” appeals: Art 6?) Afghanistan [2004] UKIAT 00186 (9 July 2004) URL: https://www.bailii.org/uk/cases/UKIAT/2004/00186.html Cite as: [2004] UKIAT 00186, [2004] UKIAT 186, [2004] Imm AR 530 |
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APPEAL No. AM ("Upgrade" appeals: Art 6?) Afghanistan * [2004] UKIAT 00186
STARRED
Date of hearing: : 4 November 2003
Date Determination notified: 9 July 2004
AM | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
DETERMINATION AND REASONS
The facts
"It has been decided, however, that because of the particular circumstances of your case, you should be granted exceptional leave to remain in the United Kingdom. The Secretary of State therefore grants you leave to remain until 27/02/2005."
"A person who-
(a) has been refused leave to enter or remain in the United Kingdom on the basis of a claim for asylum made by him, but
(b) has been granted (whether before or after the decision to refuse leave) limited leave to enter or remain,
may, if that limited leave will not expire within 28 days of his being notified of the decision, appeal to an adjudicator against the refusal on the ground that requiring him to leave the United Kingdom after the time limited by that leave would be contrary to the Convention."
"A pending appeal under this Part is to be treated as abandoned if the Appellant leaves the United Kingdom."
The proceedings before the Tribunal
The legal background
(i) "Upgrade" appeals
"A person who has limited leave under the 1971 Act to enter or remain in the United Kingdom may appeal to a special adjudicator against any variation of, or refusal to vary, the leave on the ground that it would be contrary to the United Kingdom's obligations under the Convention for him to be required to leave the United Kingdom after the time limited by the leave."
(ii) Article 6 of the ECHR
"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial Tribunal established by law."
Article 6 and "upgrade" asylum appeals
"The Commission in any event is of the opinion that any right involved is of a public law nature, having regard to the origin and general nature of the provision, which lacks the personal, economic or individual aspects which are characteristic to the private law sphere … . Consequently, the matter falls outside the scope of the concept of 'civil rights and obligations'."
"… absent a clear parliamentary intention to the contrary, we would expect our primary and delegated legislation to provide a system whereby claimants may have it determined whether they are refugees. It is only that determination which gives them access to Convention rights. We therefore approach questions of construction on that basis."
Later in the judgment, at paragraph [37], section 8 of the 1993 Act is analysed as giving "a right of appeal on grounds that directly raise the issue of the refugee status of the appellant". At paragraph [68], the decision of the Court is that "an appeal under section 8(2) will, just as in the case of appeals under the other three subsections, raise as the crucial issue the question of whether the appellant enjoys refugee status at the time of the hearing of the appeal".
"Access to a court"
"Reading Down" Section 58(8)
"A pending appeal under this Part other than section 69(3) is to be treated as abandoned if the appellant leaves the United Kingdom."
We have some difficulty in accepting the general proposition that we would have power to insert those words and so change the meaning of the statute. There does not appear to us to be any reason to do so, other than possibly recognising in an appropriate case that the statute was not entirely in conformity with the requirements of the 1998 Act. Even if we were persuaded otherwise, however, we should not accept that the statute should be read down in the sense suggested by Mr Henderson, which would disapply s 58(8) from all "upgrade" appeals but from no other appeals.
C M G OCKELTON
DEPUTY PRESIDENT