The decision

ZL (Abandonment) Somalia [2003] UKIAT 00085


Date heard: 18 March 2003
Date notified.23.09.03








1. The appellant, a national of Somalia, has appealed with leave of the Tribunal against a determination of Adjudicator, Mr B W Dawson, dismissing the appeal against the decision by the respondent giving directions for removal following refusal to grant asylum. Mr F Kodagoda of Counsel instructed by Rees Wood & Terry Solicitors represented the appellant. Miss D Prentice appeared for the respondent.

2. The Tribunal has decided to dismiss this appeal.

3. There are two issues in this appeal. One concerns the correctness of the adjudicator’s decision to treat the appeal as statutorily abandoned. The other issue concerns whether the adjudicator was correct to conclude he had no jurisdiction to hear the appeal in view of the provisions of s. 69(3) of the 1999 Act.

The s. 69(3) issue
4. To take these issues in reverse order, we see no basis for considering that there was a s.69(3) appeal before the adjudicator. In Diriye [2002] UKIAT 04462, a determination of 29 August 2002 by a legal panel of the Tribunal chaired by the Deputy President it was decided that to consider that an appeal under other subsections of s. 69 could automatically convert into an appeal under s. 69(3) was contrary to the plain words of s. 58(9).

5. Mr Kodagoda sought to argue that Diriye was wrong because it was contrary to the approach required by the Court of Appeal in Saad, Diriye and Osorio [2002] Imm AR 471. However, that judgment was considered with great care by the Tribunal in Diriye who concluded it did not support the view that there was an implied s.69 (3) appeal.

6. Mr Kodagoda relied in particular upon paragraph 65 of this judgment which reads:

“An interpretation of the Rules which permitted the Secretary of State to refuse asylum to a refugee on the ground that he had been granted ELR would, however, be in conflict with the UK`s obligations of the Convention in relation to the treatment of refugees living within this country. It would thus conflict with the provisions of Rule 328. More significantly, it would conflict with section 2 of the 1993 Act, quoted above, because it would have the effect of laying down a practice which would be contrary to the Convention.”

7. However, putting to one side that we are not in this case concerned with the Immigration Rules, the application of s. 58(9) does not have the effect of denying refugee status to a claimant. It would only have this effect if it prevented the claimant from lodging a s. 69(3) appeal. But as the Tribunal pointed out in Diriye, s. 58(9) does not preclude a claimant’s right to establish that he is to be regarded as a refugee and to raise those grounds in a new appeal under s. 69(3).

The s. 58(9) issue
8. The adjudicator noted that the appellant had been granted exceptional leave (ELR) to remain for a period of 12 months from 9 August 2002. He therefore considered that the appeal had to be treated as abandoned pursuant to s. 58(9) of the Immigration and Asylum Act 1999. The basis of the grounds of appeal was that in fact at the date of hearing before the adjudicator there had not been a formal grant of ELR and so the adjudicator had been wrong to treat the appeal as statutorily abandoned.

9. The adjudicator thought that a formal grant of ELR had been made on 9 August 2002. In actual fact no formal grant of ELR was made until 30 August 2002. It is plain, therefore, that the adjudicator decided that s. 58(9) was applicable on the basis of erroneous information. Section 58(9) only requires an appeal to be treated as abandoned “if the appellant is granted leave to enter”.

10. However the adjudicator did not promulgate his determination until 2 September 2002. By that date the appellant did have leave to enter. By operation of law the appellant’s appeal was abandoned as of 30 August 2002. Accordingly, although the adjudicator gave wrong reasons for so concluding, the appeal was statutorily abandoned by the date of promulgation.

11. Even if we are wrong about that, the appeal is certainly one which has to be treated as abandoned by the Tribunal. 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”.

12. Sub-sections 58(5)-(7) further define what is meant by a pending appeal. These make clear that an appeal that is before the Tribunal is still a pending appeal.

13. Accordingly this appeal has been statutorily concluded by abandonment. We consider that the adjudicator was right to treat the appeal as abandoned, albeit the reasons he gave were incorrect.