Case No: C/2000/0622
 
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

Wednesday 20th December 2000

B e f o r e :

LORD JUSTICE KENNEDY
LORD JUSTICE SCHIEMANN
and 
MR JUSTICE WILSON
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	Massaquoi		Appellant	
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	Secretary of State for Home Department	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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Andrew Nicol QC and Mark Henderson (instructed by Messrs Gill & Co for the appellant)
 Ashley Underwood (instructed by theTreasury Solicitor for the respondent)

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Kennedy:
1.	This is an appeal from a determination of the Immigration Appeal Tribunal notified to the appellant on 23rd November 1999, the point at issue being the effect on an asylum appeal of a successful challenge to a decision to deport and/or of a grant of exceptional leave to remain (ELR).  
Facts
2.	The appellant is a native of Sierra Leone.  On 31st May 1996 she was granted leave to enter the United Kingdom as a visitor for 6 months.  On 23rd November 1996 she applied for asylum.  On 18th February 1997 her application was refused.  She had no statutory right of appeal against that decision.  The Secretary of State also exercised his power to curtail her leave to enter as a visitor.  On 6th March 1997 he decided to deport her to her country of origin.  
Rights of Appeal
3.	She then had two rights of appeal -
(a) under section 15 (1)(a) of the Immigration Act 1971 she had the right to appeal against the decision to make a deportation order against her.  In the particular circumstances of this case that was an unrestricted right of appeal.
(b) under section 8(3)(a) of the Asylum and Immigration Appeals Act 1993 she was entitled to appeal against the decision to make a deportation order on the grounds that removal in pursuance of a deportation order would be contrary to the United Kingdom’s obligations under the Refugee Convention.
4.	She exercised both rights of appeal, and the appeals were heard together by a Special Adjudicator as required by paragraph 3 of Schedule 2 to the 1993 Act.  It is important to note that the section 15 appeal challenged an existing decision, a past event, whereas the section 8 appeal involved consideration of a possible future event, albeit one which could not take place without a decision to make a deportation order.
Before the Special Adjudicator
5.	 The appellant’s appeal to the Special Adjudicator was heard on 5th October 1998, and on 5th November 1998 her appeal under section 15 was allowed, but her section 8 asylum appeal was dismissed.  The Special Adjudicator recommended that she be granted exceptional leave to remain.
Appeal to the Immigration Appeal Tribunal
6.	On 25th November 1998 the Immigration Appeal Tribunal granted the appellant leave to appeal against the dismissal of her section 8 asylum appeal.  On 8th December 1998 the Secretary of State granted exceptional leave to remain until 8th December 2002, but maintained his refusal to grant asylum.  Despite the grant of ELR the appellant pursued her appeal to the IAT because she wanted to establish her entitlement to the status of a refugee.  She has a son in Sierra Leone now aged 10 who is cared for by her mother in difficult circumstances.  Under the Secretary of State’s current policy were the appellant to be recognised as a refugee her son could join her.  So long as she has only ELR she enjoys no such privilege.  She may be granted indefinite leave to remain when her ELR expires in December 2002, but even then she will only be able to have her son with her if she can show that she can maintain and accommodate him without recourse to public funds, a condition not imposed in relation to those recognised as refugees.
Before the Immigration Appeal Tribunal
7.	Her appeal to the IAT was heard on 29th September 1999, and the tribunal notified its determination on 23rd November 1999.  It concluded as follows:-
"(1) That a grant of exceptional leave did not nullify or terminate an appeal properly lodged.
(2) That in order to succeed under section 8(3)(a) an appellant must show that removal in pursuance of a deportation order based on the decision against which the appeal is brought would be contrary to the United Kingdom’s obligations under the Refugee Convention.
(3)  Where an appellant could not show that a deportation order may in law be made following the decision against which the appeal is brought the appeal must fail.
(4) The focus in section 8(1) to (4) is in all provisions on potential removal in consequence of the appealable decision.  An appellant therefore has to show that the Secretary of State had power to remove as a consequence of the decision appealed and that that removal would be contrary to the Refugee Convention."
8.	In a subsequent appeal the same division of the Immigration Appeal Tribunal applied the reasoning of this case to an appeal under section 8(1) of the 1993 Act, which gives a right of appeal against a refusal of leave to enter the United Kingdom on the grounds that removal would be contrary to the United Kingdom’s obligation under the Convention.  A different division of the Immigration Appeal Tribunal held, in Jatinderdeep Singh v SSHD that the grant of exceptional leave to remain resulted in a section 8 appeal being no longer before the IAT.  And another division of the tribunal in Bourenane v SSHD directed that where the Secretary of State recognised the appellant as a refugee a special adjudicator should allow a section 8 appeal without a hearing.  In the present case the appellate tribunal expressly differed from the approach adopted in those two earlier decisions so there is a clear need for the decision of this court in relation to the problem which I identified at the beginning at this judgment. 

Statutory Framework
9.	Section 8 of the 1993 Act, as amended, was the section with which the special adjudicator and the Immigration Appeal Tribunal were principally concerned.  So far as material it read -
"(1) A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom’s obligations under the Convention.
(2)  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.
(3) Where the Secretary of State -
(a) has decided to make a deportation order against a person by virtue of section 3(5) of the 1971 Act, or 
(b) has refused to revoke a deportation order made against a person by virtue of section 3(5) or (6) of that Act, 
the person may appeal to a special adjudicator against the decision or refusal on the ground that his removal in pursuance of the order would be contrary to the United Kingdom’s obligations under the Convention;
(3A) ........
(4)  where directions are given as mentioned in section 16(1)(a) or (b) of the 1971 Act for a person’s removal from the United Kingdom, the person may appeal to a special adjudicator against the directions on the ground that his removal in pursuance of the directions would be contrary to the United Kingdom’s obligations under the Convention.
10.	Section 3(5) of the 1971 Act establishes the liability to deportation of amongst others overstayers, and section 3(6) establishes the liability to deportation of those convicted of criminal offences.
11.	It is noteworthy that the 1993 Act does not say in terms what is to happen if, after an applicant for asylum has obtained leave to appeal to the Immigration Appeal Tribunal against an adverse decision under section 8 the Secretary of State grants asylum, or some form of leave to remain.  That omission has been made good, at least to some extent, by Part IV of the Immigration and Asylum Act 1999, which superseded section 8 of the 1993 Act with effect from 2nd October 2000.  The new provisions are not directly material to the present case, but they are to some extent informative.  Section 69(4) of the 1999 Act, which replaces section 8(3) of the 1993 Act reads -
"If the Secretary of State -
(a) has decided to make a deportation order against a person under section 5(1) of the 1971 Act, or
(b) has refused to revoke such an order, 
that person may appeal to an adjudicator against the decision or refusal on the ground that his removal in pursuance of the order would be contrary to the Convention."
12.	The wording is not precisely the same as in the earlier Act.  Section 5(1) of the 1971 Act is the section which enables the Secretary of State to make a deportation order against those made liable to deportation by sections 3(5) and 3(6), and the focus in the new section is on section 5(1), but for present purposes that change does not seem to be material.  What is material is that in the new Act section 58(9) states  -
"A pending appeal under any provision of this Part other than section 69(3) is to be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom."
13.	So if the new provisions had been in force on 8th December 1998, when the Secretary of State granted ELR to the present appellant, that grant would have resulted in her appeal being treated as abandoned.  However section 69(3) of the 1999 Act provides -
"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."
14.	That is, as it seems to me, a very important provision, because it enables someone in the position of this appellant to challenge the key decision of the Secretary of State to refuse leave to enter or remain on the basis of a claim for asylum, but that provision was not in force when this case came before the Immigration Appeal Tribunal.

Importance of Status
15.	As I have already indicated, if the appellant were able to obtain the status of a refugee that would carry with it significant advantages.  In particular it would give her the chance to be re-united with her child in the near future rather than at some uncertain future date.  In the 1951 Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons it was recommended to governments that they take the necessary measures for the protection of the refugee’s family “especially with a view to ensuring that the unity of the refugee’s family is maintained particularly in cases where the head of a family has fulfilled the necessary conditions for admission to a particular country.”
16.	In Adan v SSHD [1997] 1 WLR 1107 Simon Brown LJ at 1113F recognised that there are -
" ..... significant advantages beyond irremovability in being recognised as a refugee.  In the first place, there are advantages under the Convention.  For example, under Article 28 refugees are entitled to travel documents to enable them to travel abroad, and under Article 23: ‘the contracting states shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.’ They may not, therefore, be deprived of benefits as, in the UK, refused asylum seekers are.
Secondly, under national law too, there are significant advantages in recognition, albeit conferred as a matter of discretion.  One advantage is that refugees obtain indefinite leave to remain after 4 years, whereas those granted exceptional leave must generally wait for 7 years.  Similarly refugees are entitled to immediate family reunion whereas those with exceptional leave normally have to wait 4 years ....... "

17.	As Mr Nicol QC for the appellant pointed out,  the 4 and 7 year periods have been altered since that case was heard, but the point made remains valid. 
18.	So we can see in the Convention itself the origin of the position adopted by the United Kingdom in relation to those found to be refugees.  They have clear advantages when compared with those who only enjoy ELR.  But it is important to recognise that the comparative disadvantages of the latter are simply the result of domestic policies which could be adjusted.  None of this is contentious, but it forms the background to the submissions made on both sides.  
Case for the Appellant
19.	The essential submission made by Mr Nicol was that whereas a decision to make a deportation order was a gateway condition which had to exist before the appellant could launch her appeal under section 8(3)(a) of the 1993 Act, once that condition was satisfied it was immaterial whether the decision survived.  Mr Nicol submitted that if, perhaps because of civil unrest, the Secretary of State were to adopt a policy of not deporting to a particular country, that would not deprive the special adjudicator or the Immigration Appeal Tribunal of the right to hear substantively section 8 appeals from asylum seekers emanating from that country.  It was, he submitted, not necessary for the applicant asylum seeker to demonstrate the validity and efficacy of the decision to deport as a pre-condition to having his or her appeal heard.  Indeed, bearing in mind the statutory requirement that any appeal under section 15 of the 1971 Act against the validity of a decision to deport must be heard with an asylum appeal under section 8 of the 1993 Act it would be surprising if in order to mount her appeal under section 8 the appellant had to establish the validity of the very decision which her appeal under section 15 sought to attack.  Indeed if the respondent is right Mr Nicol recognised that success under section 15 would always be liable to render a section 8 appeal ineffective, so an appellant might be driven to a tactical decision not to appeal under section 15, or not to seek ELR, so as to ensure that her asylum appeal could be heard on its merits.
20.	Mr Nicol points out, rightly, that if the respondent is right the grant of ELR to the appellant permanently deprived her of the opportunity to obtain from the IAT a decision as to whether the decision of 6th March 1997 was flawed on the ground that her removal pursuant to a deportation order made in consequence of that decision would be contrary to the United Kingdom’s obligations under the Convention.  A fresh application for asylum on the same grounds would almost certainly be rejected pursuant to rule 346 of the Immigration Rules (HC 395) and any attack on that rejection would have no realistic prospects of success precisely because the rejection would be in accordance with the rules.
21.	Mr Nicol further points out that if the Secretary of State had granted asylum rather than ELR the IAT, if the respondent is right, would still have had to dismiss the section 8 appeal and that, he submits, is anomalous.  He submits that if the appeal had been against directions for removal then, if the respondent is right, the appeal would have to be dismissed once the specified flight had departed and that, Mr Nicol submits, cannot have been the intention of Parliament.  As Mr Nicol points out, section 19(1) of the 1971 Act requires adjudicators to look at the legality of decisions they have to examine, and to see whether they are in accordance with any Immigration Rules applicable to the case.  Rule 334 of HC 395 sets out that the Secretary of State will grant asylum to an applicant if satisfied that -
"(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and
(ii) he is a refugee, as defined by the Convention and Protocol; and
(iii) refusing his application would result in his being required to go (whether immediately or after the time limited by an existing leave to enter or remain) in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group."
22.	Mr Nicol submits that if the tribunal was to consider that the appellant was a refugee then the respondent’s refusal to grant asylum would not be in accordance with this rule notwithstanding that for a temporary period she had some other leave to remain.
23.	Mr Nicol also seeks to draw some support from the order made by the House of Lords in Islam v SSHD and R v IAT ex parte Shah [1999] 2 AC 629.  The case concerned two Pakistani women accused of adultery who were seeking asylum, and before the case reached the House of Lords had been granted ELR.  Nevertheless the House of Lords made the declaration sought by Islam that it would be contrary to the U.K.’s obligations under the Comvention for her to be required to leave the United Kingdom, and in the case of Shah restored the order made at first instance remitting her case to the IAT.  As Mr Nicol frankly concedes, there seems to have been no argument on the point now before us, so it must follow that the form of the order made in that case is of limited assistance.
24.	In accordance with directions given by the single Lord Justice when granting permission to appeal in the present case, UNHCR was advised of this appeal, and we have before us two letters addressed to the solicitor acting for the appellant.  In paragraph 10 of the second letter, dated 27th November 2000 the writer states that -
"UNHCR takes the ... view that appeal procedures ..... should allow the asylum applicant to obtain substantive review of the claim to refugee status.  In UNHCR’s opinion, this entitlement should not be abridged in any way by virtue of the asylum applicant being granted other status......"
25.	That is obviously a significant expression of view, but it has to be considered by us in the context of United Kingdom legislation which, as noted earlier in this judgment, does not grant a free-standing substantive review of the claim to refugee status.
26.	Mr Nicol submits that in order to support his conclusion it is necessary to focus on the fact that in any appeal under section 8 the special adjudicator or the Immigration Appeal Tribunal will always be looking at what would happen in the future if a removal were to take place, and in reality there may never be a removal.  As Simon Brown LJ said in Ravichandran v SSHD [1996] Imm A R 97 at 112 -
".... the prospective nature of the question posed by section 8 of the 1993 Act overrides the retrospective approach ordinarily required (implicitly) on a section 19 appeal."
27.	It is therefore, Mr Nicol submits, easier to recognise the decision to make a deportation order as no more than a threshold, and, as he puts it, “the appellate authority is not relieved of the task of determining whether removal ‘would be’ contrary to the Refugee Convention by the physical impossibility of removal or because the Home Office has temporarily suspended removals to a particular country because of a state of turbulence.” 
The case for the respondent
28.	Mr Underwood, for the respondent, submits that for an appeal under section 8(3) to remain effective there must be in existence a decision to make a deportation order, because it is that decision, and only that decision, with which the appeal is concerned.  It is true that if the appellant is successful the Secretary of State will give her the status of a refugee, but that requires a further act on his part.  Nothing in the Convention requires a favourable decision on status when there is no prospect of removal.  Although in asylum appeals the appellate structure is, as was said in Ravichandran at page 112, “an extension of the decision-making process” that does not always operate in favour of the appellant.  If her situation improves to the extent that there is no longer any possibility of her being put at risk of persecution, then that too, like all other relevant factors, must be taken into consideration.  In the present case what is really under attack are the disadvantages of being the beneficiary of ELR as opposed to being accorded the status of a refugee.  The proper construction of section 8 should not be strained to compensate for those disadvantages.
29.	Although we considered briefly with counsel whether in this case we can derive any assistance from the European Convention on Human Rights neither side sought to rely on that Convention and in my judgment they were right not to do so.
Conclusion
30.	In my judgment the answer to this appeal is to be found in the wording of section 8(3).  The decision to make a deportation order is not simply a condition precedent to an appeal.  It is that decision which is the subject matter of the appeal, and if it has been withdrawn or quashed there is nothing left to argue about.  It follows that the appellant’s success in her appeal under section 15 of the 1971 Act left the Immigration Appeal Tribunal with no alternative but to dismiss her substantive appeal under section 8 of the 1993 Act.  In the context of this case the grant of ELR was therefore irrelevant.  If the decision to make a deportation order had still been effective when the Secretary of State granted ELR it would have been necessary for the special adjudicator or the Immigration Appeal Tribunal to consider the effect of the grant on the pre-existing decision.  It may well be that the grant of ELR for a short period could properly be regarded as leaving the decision to deport unimpaired, and thus capable of being challenged in an appeal pursuant to section 8(3), but that is not this case.  
31.	I would therefore dismiss this appeal, but express the hope that the Secretary of State will find it possible, outside the rules, to allow the appellant to have her child with her in the United Kingdom.
Lord Justice Schiemann:  I agree.
Mr Justice Wilson:  I also agree.
Order:	Appeal dismissed with a detailed assessment of costs.  Permission to appeal refused.
(Order does not form part of approved judgment)