Right of appeal - Claim for asylum - Notice of refusal of leave to enter

AS (Somalia) v Secretary of State for the Home Department; CW (Jamaica) v Secretary of State for the Home Department; SD (Zimbabwe) v Secretary of State for the Home Department: CA (Civ Div) (Lord Justices Maurice Kay (vice-president), Sullivan, Davis): 14 November 2011

Section 83 of the Nationality, Immigration and Asylum Act 2002 provided: ‘Section 83(1): This section applies where a person has made an asylum claim and - (a) his claim has been rejected by the secretary of state, but (b) he has been granted leave to enter or remain in the UK for a period exceeding one year (or for periods exceeding one year in aggregate). (2) The person may appeal [to the tribunal] against the rejection of his asylum claim.’

The instant proceedings concerned three separate claims which were heard together as they raised the same issue. The second claimant, CW claimed asylum in the UK after she was arrested and detained as an immigration offender. In a ‘reasons for refusal letter’ the secretary of state refused her claim. CW was served with a ‘notice of refusal of leave to enter’ letter which explained her right to appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 and gave a deadline by which a notice of appeal had to be received.

She appealed, the sole ground of her appeal being that removal to Jamaica would be a breach of the UK’s obligations under the Geneva Convention of 1951 relating to the status of refugees (the refugee convention) pursuant to section 84(1)(g). That appeal was dismissed by the adjudicator and CW’s rights of appeal under section 82 were exhausted. CW submitted new evidence which, she contended, amounted to a fresh claim for asylum. She was subsequently granted indefinite leave to remain. All of the claimants’ appeals appeared before the First-tier Tribunal (Immigration and Asylum Chamber) (the tribunal).

The immigration judge held that the claimants had not had a right of appeal to the tribunal under section 83 of the 2002 act.

The Administrative Court quashed those decisions and declared that each of the claimants had had a right of appeal to the tribunal. The secretary of state appealed. The secretary of state subsequently withdrew her appeal in respect of the first claimant, AS, in the instant action, having conceded that AS had had a right of appeal under section 83 of the 2002 act. The third claimant, SD, withdrew his appeal to the tribunal, consequently, the secretary of state withdrew her appeal in the instant action on the basis that the issue of principle would, in any event, be determined in the appeal in CW’s case.

The secretary of state submitted that: (i) CW had not been entitled to appeal under section 83 of the 2002 act because, when her asylum claim was rejected it was not simply rejected but was rejected in the context of an immigration decision against which there was a right of appeal under section 82; (ii) section 83 had had to be given a purposive construction as it was necessary to provide a right of appeal to those persons whose claims for asylum had been rejected with no right of appeal under section 82 because no immigration decision had been made, whereas it was not necessary to provide those persons who had been able to appeal under section 84(1)(g) with a second ‘bite at the cherry’.

It was common ground that a refusal, or rejection, of a claim for asylum was not an immigration decision in respect of which an appeal might be made under section 82 of the 2002 act. The appeal would be dismissed.

Section 83 of the 2002 act conferred a right of appeal. Moreover, it was a right of appeal against the rejection of a claim that was of very considerable significance. Had parliament wished to qualify the right of appeal against such a decision it had been entitled to do so, but it was not right for the court to read words of qualification into section 83 upon the basis that it could not have been parliament’s intention to provide for a second right of appeal. The fact that a straightforward reading of the words used in section 83 was capable of producing absurd consequences in particular cases was not a sufficient reason for placing a gloss upon those words (see [31] of the judgment).

The 2002 act was highly prescriptive. It set out in great detail those decisions which might be appealed (section 82), the grounds on which they might be appealed (section 84), the circumstances in which an in-country right of appeal might be made (sections 92 and 94) and the circumstances in which appeals might not be based upon matters which should have been raised at an earlier stage. The court had to be very slow to read words into such a detailed, self-contained, statutory code (see [32] of the judgment).

It was clear that giving CW a right to appeal under section 83 of the 2002 act against the rejection by the secretary of state of her asylum claim would not give her a second right of appeal against the rejection of that claim. At the time of the rejection of her claim, she had had a right of appeal, which she had exercised, against the immigration decision to refuse her entry to, and to remove her from, the UK. On that appeal she had been entitled to, and had argued that, her removal from the UK would be in breach of the refugee convention.

On her appeal under section 83, she had pursued the same argument, but her appeal, by reason of the distinction drawn between immigration decisions and rejection of asylum claims, had been her first opportunity to appeal against the rejection of her asylum claim. In CW’s case, two separate decisions had been made: the refusal of her asylum claim and the subsequent refusal of leave to enter. Consequently, the refusal of leave to enter had been an immigration decision against which she could have appealed under section 82 of the 2002 act. That immigration decision had been preceded by a decision that rejected her asylum claim which had not been a decision in respect of which an appeal might be made under section 82 of the 2002 act (see [29], [34] of the judgment).

Decision of Beatson J [2011] EWHC 627 (Admin) affirmed.

Alasdair Mackenzie (instructed by TRP Solicitors, Birmingham) for the claimants. Alan Payne (instructed by the Treasury Solicitor) for the secretary of state.