The decision


Heard at:
Field House
Decision number:
_B (Human Rights - Commencement Date) Serbia and Montenegro [2003] UKIAT 00052
Heard on:
8th July 2003
Appeal number:

Date typed:
8th July 2003
Date promulgated:
22nd July 2003





The Secretary of State for the Home Department





For the Secretary of State: Ms. J. Webb, Senior Home Office Presenting Officer.
For the Respondent: Mr. F. Kodagoda, of Counsel, instructed by Simmons Solicitors.

1. Mr. B (who we shall hereafter refer to as the Claimant) is a citizen of Serbia and Montenegro (formerly called the Federal Republic of Yugoslavia), aged about 44 years. He is an ethnic Albanian, from Kosovo. He entered the United Kingdom illegally on 20th August 1997 and claimed asylum on the same day. On 25th June 2000, the Secretary of State decided to refuse his asylum claim and to issue directions for his removal to Kosovo, for the reasons given in the “refusal letter” dated 20th May 2000. The Secretary of State certified the Claimant’s asylum claim under paragraph 5(4)(b) of Schedule 2 of the 1993 Act and further certified that his asylum claim was not one to which paragraph 5(5) of Schedule 2 of that Act applied. The Claimant appealed against that decision under Section 8(4) of the Asylum and Immigration Appeals Act 1993 (as amended) (the 1993 Act).

2. The Claimant’s appeal was heard on 24th February 2003 before Mr. H H R Crawshay, an Adjudicator. The Adjudicator dismissed the appeal on asylum grounds but purported to allow the appeal on human rights grounds (Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)). The Adjudicator did not agree with the opinion expressed in the certificate. Accordingly, a right of appeal lies to the Tribunal.

3. Leave to appeal to the Tribunal was granted because the Vice President granting leave considered that the grounds of appeal raised a properly arguable issue of law. In the grounds of appeal, it is asserted that, given that the decision of the Secretary of State was made on 25th June 2000, the Adjudicator did not have jurisdiction to consider any human rights issues. It is asserted that the appeal before the Adjudicator related to the Claimant’s asylum claim. In this connection, reliance was placed on the Tribunal’s Starred Determination in Selvaratnam Pardeepan v. SSHD (00/TH/2414).

4. At the hearing before us, Mr. Kodagoda sought to persuade us that the Adjudicator did have jurisdiction to consider the human rights issues which appeared relevant on the evidence which was before him. In this respect, Mr. Kodagoda relied on the following:

(i) The appeal before the Adjudicator was heard at a time when the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) was in force. The overriding objective of the 2002 Act is to achieve the speedy and fair disposal of appeals against immigration decisions.

(ii) The Adjudicator had before him a statement from the Claimant, which the Claimant adopted at the hearing. Mr. Kodagoda submitted that this statement was a statement within the meaning of Section 120 of the 2002 Act. In paragraphs 6, 11 and 12 of his statement, the Claimant referred to matters which, in effect, meant that Article 8 was being relied upon, although Article 8 was not in fact specifically mentioned.

(iii) If it was accepted that the Claimant’s statement was a Section 120 statement, then (Mr. Kodagoda submitted), under the provisions of Section 85(2) of the 2002 Act, the Adjudicator was obliged to consider any matters raised in the Claimant’s statement which constitute a ground of appeal of a kind listed in Section 84(1) against the decision appealed against. Section 84(1) permits an appeal to be brought on human rights grounds. Furthermore, Section 85(3) of the 2002 Act states that Section 82(2) applies to a statement made under Section 120 whether the statement was made before or after the appeal was commenced. Section 85(4) permits the Adjudicator to consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.

(iv) If we found that there was any ambiguity in the interpretation of the 2002 Act, then Mr. Kodagoda submitted that we ought to apply the principle that a statute should be construed so as to advance a remedy, rather than suppress a remedy.

5. In reply, Ms. Webb relied simply on the grounds of application.

6.1 We had not had any prior notice of the argument which Mr. Kodagoda advanced before us. This is not intended to be a criticism, but simply a statement of fact. However, as a consequence, we only had available at the hearing a draft of the Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003, made on 14th March 2003 (hereafter referred to as the Commencement Order).

6.2 We referred Mr. Kodagoda to articles 2 and 3 of the draft of the Commencement Order. Mr. Kodagoda appeared to accept that the effect of these provisions was that the 2002 Act had no application to the appeal before us. However, we reserved our determination, as we wished to check the published version of the Commencement Order.

6.3 We have since obtained a copy of the published version of the Commencement Order (Statutory Instrument 2003 No. 754 (C. 37)). Having considered this and Mr. Kodagoda’s submissions, we have decided to allow the Secretary of State’s appeal. We now give our reasons.

7.1 Under article 2 and Schedule 2 of the Commencement Order, Sections 82, 84, 85 and 120 came into effect on 1st April 2003. This disposes of Mr. Kodagoda’s first argument (see paragraph 4.(i) above), because the appeal before the Adjudicator was heard on 24th February 2003 – that is, before the 2002 Act came into force.

7.2 Furthermore, Articles 3 and 4 of the Commencement Order (so far as relevant) provide as follows:

3. (1) Subject to Schedule 2, the new appeals provisions are not to have effect in relation to events which took place before 1st April 2003 and, notwithstanding their repeal by the provisions of the 2002 Act commenced by this Order, the old appeals provisions are to continue to have effect in relation to such events.

4. (1) In this Order –

(a) “the new appeals provisions” means sections 82 to 99 and sections 101 to 103 of the 2002 Act; together with ………

(b) “the old appeals provisions” means –
(i) …….
(ii) subsections (1) to (4) of section 8 of the 1993 Act; …….

(c) “the old Immigration Acts” means the 1971 Act, the 1988 Act, the 1993 Act, the 1996 Act, the 1997 Act and the 1999 Act, all without the amendments made by the 2002 Act.

(3) For the purposes of article 3 and Schedule 2, an event has taken place under the old Immigration Acts where –

(a) a notice has been served;
(b) a decision was made or taken;
(c) directions were given; and
(d) a certificate was issued.

(4) For the purposes of this Order –

(a) a notice was served;
(b) a decision was made or taken;
(c) directions were given; and
(d) a certificate was issued
on the day on which it was or they were sent to the person concerned …………

7.3 We noted that article 3(1) is subject to Schedule 2. However, there is no reference in Schedule 2 of the Commencement Order to Sections 84, 85 and 120 relied upon by Mr. Kodagoda. Accordingly, we considered that the general principle in article 3(1) applies to this appeal.

7.3 Article 3(1) clearly states that, in relation to “events which took place before 1st April 2003”, the “new appeals provisions” (defined to include Sections 84 and 85 on which Mr. Kodagoda relied) were not to have effect and that the “old appeals provisions” (defined to include Section 8(4) of the 1993 Act, under which the Claimant brought his appeal) were to continue to have effect. It is clear, from article 4(3) and (4) that the Claimant’s appeal is an “event which took place before 1st April 2003”.

7.4 Accordingly, it is clear, from all of these provisions, that the 2002 Act did not confer on the Adjudicator a human rights jurisdiction and that, under the principle enunciated in Pardeepan, his jurisdiction was limited to considering whether the Claimant’s removal would be in breach of the obligations of the United Kingdom under the Refugee Convention. We consider that there is no ambiguity and no scope for the application of the principle which Mr. Kodagoda urged us to apply (see paragraph 4(iv) above).

8. Finally, we note that the Adjudicator listed the names of the Claimant’s dependants on the front cover sheet of his Determination as Appellants. This is misleading, as it is clear, from the appeal papers, that the Claimant’s wife and children only claim as his dependants and do not have separate appeals.


The appeal of the Secretary of State is ALLOWED.

Ms. D. K. GILL
CHAIRMANVice President CHECK Date: 10th June 2003