Tribunal decisions

The decision

FM (“Upgrade” appeal: - Human rights unarguable) Serbia and Montenegro [2004]
UKIAT 00309

IMMIGRATION APPEAL TRIBUNAL

Date of Hearing: 20 September 2004
Determination delivered orally at Hearing
Date Determination notified: 25/11/2004

Before:

Mr C M G Ockelton (Deputy President)
Mr C P Mather (Vice President)
Ms C Jarvis (Vice President)

Between:

APPELLANT

and

Secretary of State for the Home Department
RESPONDENT

For the Appellant: Ms F Meyler of Refugee Legal Centre (London)
For the Respondent: Mr D Saville, Home Office Presenting Officer

It is difficult to see that a grant of leave to remain (which is the decision at the basis of an “upgrade” appeal) can raise any question of human rights.

DETERMINATION AND REASONS

1. The Appellant is a citizen of Serbia and Montenegro. She appeals against the decision of an Adjudicator, Mr G D Thompson, dismissing her appeal against the decision of the Respondent on 24 November 2000 refusing to grant her leave to remain and refusing her asylum. She was granted limited leave to remain for a period of just under a year, expiring on 31 October 2001.

2. Her appeal to the Adjudicator was accordingly under section 69(3) of the 1999 Act. That is the section which enables an individual, refused asylum but granted leave to remain, to appeal on the ground that requiring him (in this case her) to leave the United Kingdom after the time limited by the leave would be contrary to the Refugee Convention. Because the decision was made after 2 October 2000, it carries also a right of appeal under s 65 of the 1999 Act on the ground that the decision breaches the Appellant’s human rights. The Adjudicator decided that the Appellant was not entitled to be regarded as a refugee. The appeal to us is on the basis that the Adjudicator failed to deal properly with the Appellant’s human rights.

3. As has been readily acknowledged before us by the Appellant’s representative, it is extremely difficult to see that the grant of leave to the Appellant is a decision which did breach or was capable of breaching her human rights. The grant of leave which she was given protected her from removal for a limited period and in fact that limited period has been extended by the course of this appeal (which further protects her from removal while the appeal is pending).

4. Mr Saville has acknowledged to us that if it is now proposed to remove the Appellant, she will be issued with removal directions which will themselves carry a right of appeal on human rights grounds under s 82(2)(g) of the 2002 Act.

5. The position as we see it is that it will be difficult or impossible for any individual to show that a grant of leave to remain infringes human rights. It has to be remembered in all appeals under the 1999 Act that the grounds of appeal are strictly limited by the terms of ss 69 and 65. The position in this case is that grounds under neither of those sections can be successfully raised against the decision which was in fact made.

6. We emphasise that our decision does not carry any judgement about the viability of an appeal by the Appellant on human rights grounds against any decision which may be made in the future. But, so far as the appeal against the decision of November 2000 is concerned, it must be and is dismissed.

C M G OCKELTON
DEPUTY PRESIDENT