Tribunal decisions

The decision

VE (Racial discrimination) Nigeria [2005] UKIAT 00057

IMMIGRATION APPEAL TRIBUNAL

Date: 14 December 2004
Date Determination notified:
............................

Before:

The Honourable Mr Justice Ouseley (President)
Dr H H Storey (Vice President)
His Honour Judge G Risius CB (Vice President)

Between:

APPELLANT

and

Entry Clearance Officer, Lagos
RESPONDENT

Appearances:
For the Appellant: Mr M Chatwin, instructed by Camden Community Law Centre
For the Respondent: Mr N Andrews, Home Office Presenting Officer

DETERMINATION AND REASONS

1. This is an appeal against the determination of an Adjudicator, Mr T R Cockrill, promulgated on 11 November 2003. The Appellant is a Nigerian who had applied for entry clearance to come to the United Kingdom as a working holidaymaker. This application was made under paragraph 95 of HC 395. It was rejected by the Entry Clearance Officer, Lagos, on almost all possible grounds. The appeal was made on the merits of the application and on the grounds that the refusal of entry clearance discriminated against the Appellant contrary to the Race Relations Act 1976 as extended. This appeal or ground was brought under section 65 of the Immigration and Asylum Act 1999.

2. The Adjudicator was satisfied that the provisions of the Rules were met and allowed the appeal on its merits. He then said that it was therefore quite unnecessary for him to examine the question of whether there had been any discrimination on racial grounds.

3. The Appellant contended in his grounds of appeal that the Adjudicator ought to have reached a conclusion on the racial discrimination point, to use a neutral word, because a finding of racial discrimination was necessary in order for the Appellant to pursue a claim in the County Court for damages for racial discrimination. There was also a Practice Direction in force requiring Adjudicators to reach a decision on this issue when it was raised before them.

4. An additional point for our consideration was raised at the hearing of the appeal when the parties acknowledged that the Secretary of State, reflecting the Adjudicator’s determination, had already granted entry clearance and the Appellant had then entered the country with leave to do so.

5. The decision appealed against to the Adjudicator was made on 5 December 2002; the appeal was brought under the Immigration and Asylum Act 1999. The effect of the Nationality, Immigration and Asylum Act 2002 (Commencement No 4) Order 2003 SI 754, article 3 and Schedule 2 paragraph 6(4) is to continue the rights of appeal under the 1999 Act notwithstanding its repeal by the 2002 Act. However, we also consider the provisions of the 2002 Act for the purpose of providing guidance for the future.

6. The relevant statutory provisions are as follows. Section 65(1) of the 1999 Act enables an appeal to be brought against the decision of an authority, which includes an Entry Clearance Officer, where it is alleged that in taking that immigration decision the authority racially discriminated against him. By section 65(2), racial discrimination is constituted by the acts or omissions which are made unlawful by section 19B of the Race Relations Act 1976.

7. Section 65(3) provides:

“Subsections (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant’s entitlement to enter or remain in the United Kingdom, [racially discriminated against the appellant or] acted in breach of the appellant’s human rights.”

8. By section 65(4) and (5), where such a question arises, the Adjudicator or Tribunal has jurisdiction to consider it and if it concludes that there was racial discrimination may allow the appeal on that ground.

9. It is a mistake to suppose that those provisions set up a separate appeal from that which is made under eg section 59 and Schedule 4 to the 1999 Act on the grounds that the decision was not in accordance with the Immigration Rules. There is but one appeal which can be brought on a variety of grounds.

10. This is put beyond doubt in the 2002 Act where section 82 sets out the appealable immigration decisions and section 84(1) provides:

“(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds-
(a) that the decision is not in accordance with the immigration rules;
(b) that the decision is unlawful by virtue of section 19B of the Race Relations Act 1976 (c.84) (discrimination by public authorities).”

11. The obligation in paragraph 2 of the Immigration Rules HC 395 on the relevant officials to “carry out their duties without regard to race, colour or religion …” does not alter the appealable decision.

12. Section 19B(1) of the Race Relations Act 1976, inserted by amendment in 2000 with effect from 2 April 2002, makes it unlawful for a public authority to discriminate racially in carrying out its functions. There are exceptions permissible in immigration and nationality cases under section 19D where a Minister of the Crown acts personally or where a “relevant authorisation” is in force. It is not suggested that any exceptions apply here.

13. Section 57 of the 1976 Act enables proceedings for damages for racial discrimination to be brought in the County Court or Sheriff Court. Section 57A is important. So far as material, it provides:

“(1) No proceedings may be brought by a claimant under section 57(1) in respect of an immigration claim if-
(a) the act to which the claim relates was done in the taking by an immigration authority of a relevant decision and the question whether that act was unlawful by virtue of section 19B has been or could be raised in proceedings on an appeal which is pending, or could be brought, under the 1997 Act or Part IV of the 1999 Act; or
(b) it has been decided in relevant immigration proceedings that that act was not unlawful by virtue of that section.
(2) For the purposes of this section an immigration claim is a claim that a person-
(a) has committed a relevant act of discrimination against he claimant which is unlawful by virtue of section 19B; …
(3) Where it has been decided in relevant immigration proceedings that an act to which an immigration claim relates was unlawful by virtue of section 19B, any court hearing that claim under section 57 shall treat that act as an act which is unlawful by virtue of section 19B for the purposes of the proceedings before it.
(4) No relevant decision of an immigration authority involving an act to which an immigration claim relates and no relevant decision of an immigration appellate body in relation to such a decision shall be subject ot challenge or otherwise affected by virtue of a decision of a court hearing the immigration claim under section 57.”

14. The “relevant decision” is defined in subsection (5)(a) as:

“in relation to an immigration authority, any decision under the Immigration Acts relating to the entitlement of the claimant to enter or remain in the United Kingdom.”

15. These provisions of the Race Relations Act apply alike to appeals under the 1999 Act and under the 2002 Act, except that the Act has now been amended to refer to the 2002 Act rather than the 1999 Act. Their apparent effect is clear. They bar the bringing of a damages claim for racial discrimination on the grounds that the question of racial discrimination “has been or could be raised” in the immigration appeal, or that the question has been determined against the claimant in that appeal. Where that question has been determined favourably to the claimant, the claim can be brought in the civil court and that determination requires the civil court to treat the act as unlawful because of racial discrimination. The decision of the civil court does not affect the underlying immigration decision or provide a further avenue for challenging it. Where it has been determined unfavourably to the individual, he can appeal to the Tribunal, but cannot bring civil proceedings for damages if that appeal is unsuccessful. The position in question here is as to the position where the issue of racial discrimination has been raised but has not been determined.

16. It was this prima facie need for a favourable decision from the immigration appeal process on any racial discrimination ground for the claim for damages to be pursued in civil proceedings which led to the Chief Adjudicator’s Practice Direction that the racial discrimination issue should be determined if it was raised, and should not be treated, as it was here, as irrelevant if the appeal had been allowed on other grounds. In the 2002 Act, section 86(2)(a) provides that in an appeal under section 82 “The adjudicator must determine any matter raised as a ground of appeal (whether or not by virtue of section 85(1)”. So it would now be a matter of statutory duty and not just Practice Direction that the issue be dealt with.

17. Finally, we turn to the abandonment provisions. Section 58(5) and (9) of the 1999 Act provide:

“(5) For the purposes of the Immigration Acts, an appeal under this Part is to be treated as pending during the period beginning when notice of appeal is given and ending when the appeal is finally determined, withdrawn or abandoned.
(9) 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.”

18. It was replaced by section 104(1) and (4) of the 2002 Act; the latter provides:

“(4) 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, or
(b) leaves the United Kingdom.”

It is to the like effect as the 1999 Act.

19. We note in passing the Immigration (Leave to Enter and Remain) Order 2000 SI 1161 which provides in Part II for entry clearance in certain common circumstances to operate as the grant of leave to enter. Otherwise, leave to enter is granted at the point of entry into the United Kingdom of those previously granted entry clearance.

20. It was the Secretary of State’s first contention that the Appellant’s appeal had been abandoned because of the grant of leave to enter. It was not possible for Mr Chatwin to resist this contention; we see no answer to it. There is only one appeal and the consequences for it of the grant of leave to enter are very clearly spelt out. We do not see a way under either the 1999 or 2002 Acts in which a ground of appeal can survive the deemed abandonment of the appeal.

21. This is a particularly unfortunate consequence of the abandonment provisions, because it means that the Secretary of State can terminate an individual’s appeal against the rejection by an Adjudicator of the race discrimination ground by the grant of entry clearance in certain cases. It also puts the individual who succeeds on the ordinary immigration merits, and a Secretary of State who seeks to avoid any further delay to that individual’s entry into the United Kingdom, in the position of having to wait the conclusion of the individual’s race discrimination appeal before obtaining or granting leave to enter. This forces a choice upon the individual as between entry and pursuit of the race discrimination appeal, unless the Secretary of State removes that choice by himself granting an entry clearance which operates as the grant of leave.

22. Equally unintended, as it appears, is the consequence that if the Secretary of State loses the race discrimination point before the Adjudicator and seeks to appeal it further, that appeal would also be abandoned through the grant of leave to enter. This puts the Secretary of State in the position of having to delay the grant of leave, which he may not wish to appeal, in order to pursue his race discrimination appeal. If he grants an entry clearance, which does not amount to leave to enter, the individual can terminate the Secretary of State’s appeal by entering the United Kingdom, obtaining leave at the port.

23. If we had not been obliged to treat the appeal as abandoned, we would have concluded that the failure to comply with the Practice Direction constituted an error of law which meant that the appeal should be allowed. It would then have been necessary to consider whether, under the 1999 Act, the Tribunal should deal with the issue, as it could do, or remit it. In any remittal, care would be needed over the imposition of any restrictions on the scope of the remittal.

24. We express no concluded view on the effect of section 86(2)(a) of the 2002 Act. It may be that the failure to deal with the issue means that the appeal to the Adjudicator has simply not been completed and should be returned to that Adjudicator for the appeal to be dealt with. Alternatively, it may be necessary to examine closely whether at least under section 104(2)(a) or (b) of the 2002 Act, a restriction on the scope of any remittal should be imposed.

25. It does appear, however, that because there is only one appeal under either Act, an appeal against an unfavourable decision on the racial discrimination point where there has been a favourable decision on the merits case under the Immigration Rules, will put in hazard that favourable decision.

26. Where an application for permission to appeal to the Tribunal takes issue only with the conclusion or absence of conclusion on the racial discrimination issue, permission to appeal can be granted on the basis of some “other compelling reason”, because the substantive result of the appeal would not be changed.

27. We emphasise the need for Adjudicators to reach explicit findings and conclusions on race relations issues, whatever conclusion they reach on the other merits.

28. However, this appeal is deemed to have been abandoned. It is reported for what we say about the treatment of racial discrimination claims.

MR JUSTICE OUSELEY
PRESIDENT