The decision

ZA (s 58(9) – Abandonment – Date of grant) Ethiopia [2004] UKIAT 00241


Date of Hearing: 17 June 2004
Date Determination notified:
31 August 2004

Mr C M G Ockelton (Deputy President)
Dr H H Storey (Vice President)
Mr G Warr (Vice President)



Secretary of State for the Home Department

For the Appellant: Mr E Fripp, instructed by Noden & Co
For the Respondent: Ms J Anderson, Home Office Presenting Officer

Section 58(9) of the 1999 Act requires an appeal under that Act to be treated as abandoned even if the grant of leave postdates the coming into force of the 2002 Act.

1. This appeal raises an interesting and by no means easy question of construction of the commencement and transitional provisions relating to section 58(9) of the Immigration and Asylum Act 1999 and s 104 of the Nationality, Immigration and Asylum Act 2002.

2. The Appellant claims to be a citizen of Ethiopia. She came to the United Kingdom on 7 January 1999 and claimed asylum. On 22 March 2001, the Respondent decided to refuse her application for asylum and accordingly to refuse her leave to enter. A notice of that decision was served on her in proper form. She appealed under s 69(1) of the 1999 Act, and to her appeal added human rights grounds under s 65 of that Act. Her appeal was heard by an Adjudicator, Ms C M Courtney, on 29 September 2003. In her determination, issued on 12 November 2003, the Adjudicator dismissed the Appellant’s appeal insofar as it relied on refugee grounds, but allowed it on human rights grounds.

3. The Appellant applied for permission to appeal to the Tribunal against the dismissal of her asylum appeal. Following correspondence relating to whether that application was in time, permission to appeal was granted (or perhaps purportedly granted) on 16 February 2004.

4. In the meantime, however, the Respondent had looked again at the Appellant’s case, prompted no doubt by the Adjudicator’s determination. On 16 January 2004, he wrote to the Appellant’s representatives in the following terms:

“Determination of asylum claim

Your client’s claim for asylum in the United Kingdom has been carefully considered within the Immigration and Nationality Directorate of the Home Office and it has been refused for the reasons given in the reasons for refusal letter. Your client’s claim has been recorded as determined on 16 January 2004. However, a decision has been taken that it would be appropriate to grant your client humanitarian protection in the United Kingdom for a specified period. I would be grateful if you would forward the enclosed letters and papers to your client at the earliest opportunity. This decision is not an appealable decision under section 82 of the Nationality, Immigration and Asylum Act 2002.”

5. The “enclosed” papers are a two-page letter addressed to the Appellant. It begins as follows:

“Grant of humanitarian protection

Your client has been reviewed and you have been granted humanitarian protection in the United Kingdom, which is a discretionary grant of leave to enter or remain in the United Kingdom not covered by the Immigration Rules. You have been granted leave to enter until 16/01/2007.”

The rest of the letter sets out the benefits and conditions of that grant.

6. The question we have to decide is what effect that grant has on the Appellant’s appeal. Does it cause it to be treated as abandoned? Or does it cause it inevitably to fail for some other reason? Or should the refugee appeal be allowed to proceed on its merits?

7. Section 58(9) of the 1999 Act is as follows:

“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..”

8. Section 104(4)(a) of the 2002 Act is as follows:

“An appeal under section 82(1) shall be treated as abandoned if the appellant-
(a) is granted leave to enter or remain in the United Kingdom.”

9. Section 114 of that Act is in the following terms:

(1) Part IV of the Immigration and Asylum Act 1999 (c 33) (appeals) shall cease to have effect.
(2) Schedule 6 (which makes transitional provision in connection with the repeal of Part IV of that Act and its replacement by this Part) shall have effect.
(3) Schedule 7 (consequential amendments) shall have effect.”

10. Section 58 of the 1999 Act is within Part IV and is thus repealed by s 114 of the 2002 Act. There is nothing in schedules 6 and 7 of the 2002 Act that is relevant to present purposes, although schedule 6 includes a power to make transitional provisions by Statutory Instrument. Those provisions were made by the Nationality, Immigration and Asylum Act 2002 (Commencement No 4) Order 2003 SI 2003/754, made on 14 March 2003. By Article 2 of that Order, s 114 came into force on 1 April 2003. Articles 3 and 4 are as follows:

“Transitional provisions
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.
(2) Schedule 2, which makes further transitional provisions, has effect.

Definitions for transitional provisions
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 any provision (including subordinate legislation) of-
(i) the 2002 Act;
(ii) the 1971 Act, the 1997 Act and the 1999 Act (all as amended by the 2002 Act);
which refer to those provisions
(b) “the old appeals provisions” means-
(i) sections 13 to 17 of the 1971 Act;
(ii) subsections (1) to (4) of section 8 of the 1993 Act;
(iii) the 1997 Act (without the amendments made by the 2002 Act);
(iv) Part IV of, and Schedule 4 (except paragraphs 10 to 20 and 23) to, the 1999 Act;
(v) section 115 of the 2002 Act;
together with-
(vi) any subordinate legislation which applies to those provisions (unless specific provision is made to the contrary); and
(vii) any provision of the old Immigration Acts which refers to those provisions;
(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 2 and Schedule 2, an event has taken place under the old Immigration Acts where-
(a) a notice was 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, if sent by post or by fax, or delivered to that person, if delivered by hand.
(5) In this article-
(a) “this person concerned” means the person who is the subject of the notice, decision, directions or certificate or the person who appears to be his representative; and
(b) a reference to the issue of a certificate is a reference to the issue of a certificate under section 11, 12 or 72(2) of the 1999 Act or section 115 of the 2002 Act.”

11. In schedule 2, the part relevant to this appeal is paragraph 6(4):

“(4) Subject to the provisions of the Order and any other enactment sections 59 to 78 and schedules 2 to 4 [of the 1999 Act] shall continue to have effect in relation to events which took place before 1st April 2003.”

12. Mr Fripp’s argument on behalf of the Appellant is simple and may be simply stated. The grant of leave to the Appellant is an event – either a decision or a notice – which did not take place before 1 April 2003. Article 3 of the Commencement Order therefore does not preserve the old appeals provisions (including s 58(9) of the 1999 Act) in relation to it. In relation to that event, therefore, s 114 of the 2002 Act takes effect, repealing s 58. Section 104 of the 2002 Act cannot affect this appeal, because it is not an appeal under s 2 of that Act but an appeal under s 69(1) of the 1999 Act. Thus there is no provision which would have the effect of causing a grant of leave made on or after 1 April 2003 to require the appeal to be treated as abandoned. The appeal is therefore not abandoned and should be heard.

13. Ms Anderson says that if that is right it is an unintended result of faulty transitional provisions in an otherwise coherent scheme of preserving the old appeals provisions for old appeals and introducing the new appeals provisions for new appeals. She submits that if ambiguities in the legislative provisions produce the result contended for by Mr Fripp, we should construe the legislation in order to avoid the absurdity and in favour of the coherent rational scheme she described.

14. We may deal at once with that submission. It would be quite impossible to make the assumption of rationality and non-absurdity which Ms Anderson suggests underlies the statutory scheme. We do not need to make any large comments about the drafting of the numerous statutory changes to the immigration, asylum and human rights appeal system that have been introduced in the last few years. Such comments have been made with great frequency and are undoubtedly well merited. It suffices for present purposes to consider the Commencement Order before us. It is admittedly so badly drafted that it has been the subject of three Amendment Orders (SI 2003/1040, SI 2003/1339 and SI 2003/2993). We believe that the introduction of even one Amendment Order to a Commencement Order is almost unknown: so the present Order has some claim to be the worst-drafted Commencement Order ever passed by Parliament.

15. Even as amended, it contains enormous difficulties. Supposing, for example, one were to ask the relatively simple question “In an ordinary case, not the subject of any special circumstances, what provisions of the 1999 Act survive after 1 April 2003 in relation to an event before that date?” The answer is apparently to be found in Articles 3 and 4. The “old appeals provisions” continue in effect and, so far as the 1999 Act is concerned, they are the whole of Part IV of that Act and schedule 4 except paragraphs 10 to 20 and 23. An alternative answer is found in paragraph 6(4) of schedule 2 which, according to Article 3(2) “has effect”. According to this provision, the provisions of the 1999 Act which survive are only ss 59 to 78 (not the whole of Part IV) but, on the other hand, the whole of schedule 4 and schedules 2 and 3 as well. Which of these provisions is to take precedence? There are two clues. Paragraph 6(4) of schedule 2 is to take effect “subject to the provisions of the Order” meaning, apparently, the present Order and evidently including Article 3. Article 3, however, is made specifically “subject to schedule 2”. The only possible answer to the question we posed is that any provision of the 1999 Act mentioned in either of the two parts of the Order which we have cited continues to have effect. Perhaps the provisions of the 1999 Act mentioned in both parts of the Order were regarded by the draftsman as particularly important. We do not know. What is absolutely clear is that we are not dealing here with careful drafting or rational legislation. We are dealing with careless, hurried work by the draftsman and by Parliament and it would be quite wrong to read these provisions with the eye of rationality.

16. That does not, however, prevent us reading them at all. When we do so we find that we are unable to accept Mr Fripp’s principal submissions on the effect of the statutory provisions taken as a whole. We reach this view for two reasons. The first reason forms part of Ms Anderson’s submissions. It is, broadly speaking, that subsequent events do not generally abolish earlier events. If it be right that the grant of leave to the Appellant was an event after 1 April 2003, it is equally right that the refusal of leave to enter, upon which this appeal is founded, was an event (whether decision or notice) before 1 April 2003. In relation to that event, the old appeals provisions remain in force, including the whole of Part IV of the 1999 Act. Section 58 is part of Part IV. It provides important protection for the Appellant, who cannot be removed whilst an appeal is pending as defined by that section. We see no reason at all to suppose that, for the whole time that an appeal against a decision before 1 April 2003 is pending, the provisions of s 58 do not apply to it. If s 58(9) did not apply, then s 58(6) would not apply; and as soon as the Appellant had the Adjudicator’s decision, whether or not she was hoping to appeal against it, she could be removed. Her appeal would have been determined and there would be no provision treating her appeal as pending at a time when she could appeal against the Adjudicator’s decision but had not yet done so. This result is no more desirable than that for which Mr Fripp contends: but it is also not necessary. The Appellant that has an appeal under s 69(1) because the event against which she appeals was an event before 1 April 2003. In relation to that event s 58 continues to have effect, despite its repeal by s 114 of the 2002 Act. Section 58 provides, amongst other things, that the appeal is treated as abandoned if there is a grant of leave.

17. If Mr Fripp is right and the grant of leave is an “event” which was certainly after 1 April 2003 that does not assist him, because although it might be that s 58 does not apply to that event, it nevertheless continues to apply “in relation to” the event of 22 March 2001 against which she appeals. Even if the new event does not invoke s 58, the old event continues to do so.

18. We are reinforced in our views by the definition of “event” in Article 4(3) of the Order. Evidently, the draftsman was not prepared to allow “event” to have its normal meaning and the definition of it is a very restrictive one. As we read the list in Article 4(3), it appears to be a list of events which are capable of generating, modifying or restricting rights of appeal. Although the matter is very far from being beyond doubt, we consider it in the highest degree likely that the reference to events in Article 3 and schedule 2 is intended to be a reference only to such events, (all of which do appear to be encompassed in the definition of “event”) and not to other events. It does not look to us as though it was intended that the new appeals provisions should instantly apply to an “old” appeal if, for example, directions were served by the Appellate Authority prior to a hearing; or if a notice (for example of a determination) were served by the Appellate Authority after 1 April 2003.

19. That view makes no substantial difference to our decision, which is that the old appeals provisions continue to apply to this appeal, because they apply in relation to the event against which the Appellant is appealing.

20. There are two other issues, both of general application and one of some importance in the context of this appeal. The first is whether if Mr Fripp had been right that the Appellant’s appeal was not abandoned by the grant of leave, he is also right that it should now be tried on its merits.

21. If Mr Fripp had been right, the Appellant has a pending appeal against the refusal of leave to enter. That is an appeal which, founded as it is on grounds of appeal which go to protection, is, by well established principles, to be adjudicated at the time of any hearing. So the Adjudicator, and subsequently the Tribunal, would be concerned with assessing whether, at the time of the hearing, the removal of the Appellant in consequence of the refusal of leave to enter would breach the Refugee Convention. The Appellant’s problem would then be that, at the time of the hearing, she was not a person who had been refused leave to enter and was liable to removal: she was a person who had been granted leave to enter and was not liable to removal. In those circumstances, we regard it as quite extraordinarily difficult to see how she could succeed in an appeal on the grounds set out in s 69 of the 1999 Act. Subsequent facts – whether or not they are regarded as “events” for the purposes of the Order – have removed the Appellant’s formal cause of complaint. As the burden of proof is on her, she cannot succeed.

22. Mr Fripp seeks to resist this conclusion by submitting that the Appellant has in truth been granted leave to remain and that, at the time of the grant, she was not seeking leave to enter. In our view, there is no substance in either of those submissions. The Appellant’s arrival and application for asylum constituted an application for leave to enter. She has never been granted leave to enter: she has had temporary admission, no doubt, and she has been here lawfully while she awaited the decision and subsequently while she awaited the outcome of an appeal. But she has never withdrawn her original application and she has now been granted leave. That leave is described in the notice we set out at the beginning of this determination as leave to enter in her case and that is what it is. She now has what she has sought to obtain. Nothing in the 1999 Act, so far as we are aware, enables her in these circumstances to object that she would have preferred to have been granted a different sort of leave. Her appeal under s 69(1) is abandoned or, if we are wrong about that, is bound to fail: it does not of itself turn into an appeal under s 69(3), and no appeal under s 69(3) lies, because the grant of leave to enter was too late for that.

23. That takes us on to the final issue which was not argued specifically by either party, although it was implicit in comments made by both, and we raised it briefly ourselves. We have set out, at the beginning of this determination, the terms of the grant of leave to the Appellant. It will be noted that the grant is said not to generate any right of appeal under s 82 of the 2002 Act. Section 83 of that Act is, however, in the following terms:

“83 Appeal: asylum claim
(1) This section applies where a person has made any 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 United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).
(2) The person may appeal to an adjudicator against the rejection of his asylum claim.”

24. It is clear that those provisions apply to the Appellant. The Immigration (Notices) Regulations SI 2003/658, replacing previous regulations in similar terms, provide in Article 5 that where a decision carries a right of appeal, it must be notified to the person affected and accompanied by information about the right of appeal. That does not appear to have been done in the present case. The precise effect of the failure was not the subject of argument before us, but bearing in mind that the grant of leave is (at any rate in substance, whatever its procedural effect) a benefit to the Appellant, we would be inclined to the view that the grant of leave to enter took effect on the date it was made (or perhaps the slightly later date when it was notified to the Appellant), but that until she receives a proper notice of it in accordance with the Notices Regulations, time is not running against her for the purposes of appealing under s 83. It follows that although she is treated as having abandoned her appeal under s 69(1), she has the possibility of raising an appeal under s 83 on the grounds that she should have leave as a refugee, if she wishes to do so.

25. This appears to us to be in general an entirely satisfactory outcome. Our general conclusion is that s 58, like the other “old appeals provisions”, continues in force and affects an appeal under the 1999 Act for the whole of the time that that appeal is said to be pending; and the question of whether it is pending is therefore to be determined by reference to s 58. We have also decided that, quite apart from questions of abandonment, an appeal under s 69(1) cannot succeed if, by the date of the hearing, the Appellant has the very thing which he sought – that is to say, leave to enter.

26. If such leave is granted after 1 April 2003, there may be a right of appeal under s 83 if the conditions set out in that section apply: but, as with any appealable decision, time does not run against the Appellant until he or she has been notified of the decision in accordance with the Notices Regulations.

27. For the reasons we have given, the Appellant has no pending appeal before the Tribunal. She has leave to enter and may in due course, if so advised, appeal against that grant under s 83.