Tribunal decisions

The decision

SS (False nationality appeal) Somalia [2005] UKIAT 00059

IMMIGRATION APPEAL TRIBUNAL

Date: 22 February 2005
Date Determination notified:
3 March 2005

Before:

The Honourable Mr Justice Ouseley (President)
Mr D J Parkes (Acting Vice President)
Mr M W Rapinet (Acting Vice President)

Between:

SECRETARY OF STATE FOR THE HOME DEPARTMENT
APPELLANT

and

RESPONDENT

Appearances:
For the Appellant: Mr G Elks, Home Office Presenting Officer
For the Respondent: Ms H Choudhery of Asghar & Co

DETERMINATION AND REASONS

1. This is an appeal by the Secretary of State against the determination of an Adjudicator, Mr Vaudin d’Imecourt, promulgated on 26 February 2004. The Claimant alleged that he was a citizen of Somalia, allegedly born in 1986 and who said that he had arrived in the United Kingdom in August 2003 from Kenya, where he had been living in a camp for the previous ten years.

2. The Secretary of State did not believe him and refused his asylum claim, which was based on his alleged membership of a minority Somali clan. In the Secretary of State’s decision dated 20 November 2003, he said:

“It is not accepted that you are Somali and your claim for asylum and your human rights claim have been refused on the basis that you are not Somali. Directions will be given for your removal to Somali as this is the country of which you claim to be a national. This will enable you to appeal the refusal of your claim. If you do appeal and the adjudicator also concludes that you are not Somali we will seek to remove you to a country or territory to which you can be removed pursuant to paragraph 8(1)(c) of Schedule 2 or paragraph 1(1) of Schedule 3 of the 1971 Act as appropriate.

On the basis of the information you have provided your removal would not be contrary to the United Kingdom’s obligations under the ECHR.”

3. That refusal letter was accompanied by a “Notice of Refusal of Leave to Enter” which said that the Secretary of State had refused the application for asylum for the reasons set out in the attached Notice. That attached Notice is the reasons for the refusal letter. The Notice of Refusal of Leave to Enter continued “I therefore refuse you leave to enter the United Kingdom/I therefore cancel your continuing leave…”. Underneath was the further heading “Removal Directions” below which it said “I have given/propose to give directions for your removal to Somalia by flight/ship/train:”. There were then set out the rights of appeal which included the ground that removal from the United Kingdom as a result of the decision would breach the United Kingdom’s obligations under the 1951 Refugee Convention or the ECHR.

4. The Claimant appealed against what he described as the decision of the Secretary of State to “refuse my asylum application” explaining that he could not go back to “Afghanistan” [sic]. Further details were to follow.

5. The Adjudicator described the appeal as being under section 82(1) of the Nationality Immigration and Asylum Act 2002 “against the decision of the Immigration officer made on 24th November 2003 [the date on the Notice of Refusal of Leave to Enter] to issue removal directions to Somalia as a result of the SSHD’s decision to refuse his application for asylum and on the basis of his human rights”. There was no ground of appeal which related to the country of destination which had been set out in the Notice of Refusal of Leave to Enter in accordance with Regulation 5 of the Immigration (Notices) Regulations 2003 SI No 658. The Adjudicator concluded that the Claimant’s claim to be a Somali refugee was not made out. He “was satisfied to a high degree of probability that this young man was a Kenyan national which is the country from where he flew directly to the United Kingdom”. He noted what the Home Office letter of 20 November 2003 said at paragraph 12 and said that in those circumstances he would expect removal to be effected to Kenya, which was the last country from which he had flown directly to the United Kingdom. He concluded that removal of the Claimant to Somalia would breach neither Convention. There is no challenge by the Claimant in the course of this appeal to that conclusion. The Adjudicator was right to dismiss the asylum and human rights grounds of appeal, which he did by reference to Somalia.

6. The Adjudicator dismissed the appeal on asylum and human rights grounds but allowed the appeal “on the limited ground that the removal direction to Somalia in this case is against the law” and directed that the removal directions be quashed.

7. He explained his reasons as follows. The appeal should be regarded as brought under section 84(1)(e) on the grounds that the decision “is otherwise not in accordance with the law” and that the law for these purposes included paragraph 8(1)(c) of Schedule 2 to the Immigration Act 1971 which only permitted removal directions to by given for certain countries only, none of which would entitle the Secretary of State to remove the Claimant to Somalia because the Claimant was not a Somali, nor did he hold a Somali passport, nor had he come to the United Kingdom directly from there, nor were there reasonable grounds for supposing that he would be permitted to enter Somalia.

8. The Adjudicator appears to have thought that section 85(1) of the 2002 Act imposed an obligation on him to consider a ground of appeal not raised and then concluded that section 86(3) compelled him to allow the appeal where he thought that the decision was not in accordance with the law. He held that section 87(1), which permitted him to give a direction for the purpose of giving effect to his decision, permitted him to direct the quashing of what he thought were removal directions.

9. The Secretary of State appealed on the grounds that the Adjudicator had no jurisdiction to consider or quash removal directions or to consider the power of the Secretary of State to make them. The setting of removal directions was not an “immigration decision” within Section 82 of the 2002 Act. Mr Elks refined his submissions to contend that there had been no removal directions at all, and that if there had been they were not part of the immigration decision. Indeed, there had been no decision to remove the Claimant at all. The decision was simply a refusal of leave to enter under section 82(2)(a).

10. Miss Choudhery for the Claimant submitted that the Secretary of State’s decision was a decision under (2)(a) and (g), the latter being a decision “that a person is to be removed from the United Kingdom by way of directions under Section 10(1)(a),(b) or (c) of the Immigration and Asylum Act 1999 (c.33) (removal of person unlawfully in United Kingdom), …”.

11. Whatever other points may have been thrown up by this appeal, neither party seemed to consider that the allowing or dismissing of the appeal would make any practical difference to what happened to the Claimant. The Secretary of State said that whether the appeal were allowed or dismissed he would set removal directions for another country without making as he understood matters, any further appealable decision; Judicial Review might be available in respect of the new directions.

12. Ms Choudhery thought that the Secretary of State would have to make a new decision either way and even if she were right about the current appeal being brought in respect of a section 82(2)(g) decision as well. But she recognised that either way, removal directions would be set for another country. Whether the appeal was allowed or not, nobody was concerned that the Secretary of State would set directions for removal to Somalia.

13. Although it may seem strange that the Tribunal should have to hear such a seemingly inconsequential appeal, Mr Elks urged that the existence or absence of removal directions, a right of appeal in respect of them and the power of the Adjudicator should be made clear.

14. At a simple level, we accept Mr Elks submissions on those latter issues. First, the document headed “Notice of Refusal of Leave to Enter” does not contain or evidence removal directions. The dubiety in the statement of whether directions have been given, unsupported by any more detail, prevents that document containing or evidencing removal directions. We so held in MY (Disputed Somali Nationality) Somalia* v SSHD [2004] UKIAT 00174, [2004] Imm AR 359, at paragraph 22. This case was decided on the 1999 Act but contains material of continuing relevance.

15. The purpose of the naming of a country of proposed removal or destination is compliance with the requirement of Regulation 5 of the Notices Regulations, which enables the contested nationality issue to be resolved; see MY above at paragraph 28. The naming of the country of destination may give rise to issues which the Tribunal will deal with in another case as to its effect on the range of countries which the Adjudicator has to consider and whether, if the country falls outside the scope of Schedule 2 to the Immigration Act 1971, it should nonetheless be considered or what the effect on the substantive appeal should be. However, those issues do not arise in this case, which involves a deceitfully contested nationality.

16. Second, the decision of the Secretary of State in the reasons for refusal letter and the Notice is giving a two stage decision, to the effect that, if the Claimant is found to be a Somali, as the Claimant contends, he will be removed there but that if he is found not to be Somali, he will be removed to whatever country is then lawful, in particular the country of which he is then found to be a national. This two stage issue approach was analysed in MY above, at paragraphs 25, 36 and 47.

17. Third, the considerations in MY apply to a case of a deceitful nationality claim. The appeal cannot be allowed on the basis of the conclusions that the Claimant is not a Somali because that is not the Claimant’s case. The Claimant has never disavowed it, and should gain no advantage, however slight, from the rejection of his case. He could not argue it and the Adjudicator should not take such a point even as a consequence of his nationality conclusion. It is the Secretary of State’s decision which means that in those circumstances the Claimant will not be sent to Somalia.

18. Therefore, the decision to refuse leave to enter or remain, properly understood, was in accordance with the law. There were no removal directions and the decision as a whole did not permit the argument that the decision proposed was unlawful by virtue of Schedule 2 to the 1971 Act. Even if there had been an appealable decision under (g) with the width contended for by the Claimant on appeal to us, the same applies.

19. There are two other points we need to make. First, the power of the Adjudicator is to allow or dismiss the appeal. The appeal cannot be allowed in part, even though it may only succeed on for limited reasons and in that sense succeed on a limited basis. Insofar as an appealable immigration decision is necessary before every act of removal, allowing the appeal as the Adjudicator did would require another appealable immigration decision to be taken again here even though all the issues had been resolved against the Claimant. It may or may not be the case that a fresh decision would have to be made for removal directions, if necessary, to be given. Second, section 85(1) brings in no duty to consider grounds of appeal which have not been raised against the decisions appealed against, and section 86(2)(a) contains no obligation to consider them. There is no duty on the Adjudicator to raise and consider grounds of appeal which the Claimant has not put forward and which were he to do so would have been an abuse of process. An Adjudicator should not by a sidewind allow an appeal which gives the Claimant a result which his evidence disavows.

20. We should mention briefly what we are not deciding.

21. There is a significant change from the formulation in the 1999 Act, considered in Kariharan v SSHD [2002] EWCA Civ 1102, [2003] Imm AR 163, which meant that the setting of removal directions constituted both a “decision” under the Immigration Acts and a “decision relating to” a person’s entitlement to enter or remain in the United Kingdom. The language of the subsequently enacted 2002 Act section 82 is different. The significance of that change for the scope of the appealable decisions to remove within section 82(2) (g), (h) and (i) are at issue as is the effect of the country of proposed removal. We shall say no more about that here because it is not necessary for the decision on this appeal.

22. Nor shall we deal with the question of whether there was a decision under both (a) and (g) of section 82 as the outcome is unaffected by that. We simply point out that it is not inevitable that every refusal of leave to enter or remain contains a decision to remove under those subsections, because they are separate decisions. They remain separate, even though it is possible to appeal against the former on the grounds that removal in consequence would breach Convention rights.

23. Nor is it necessary to deal with the supposition that the Secretary of State can issue removal directions or fresh removal directions without generating a fresh and appealable immigration decision under section 82 (2) (g),(h) or (i), particularly in the light of Kariharan.

24. However, for the reasons which we give this appeal is allowed. It is of some interest for the treatment of decisions in this sort of case and is reported for that reason.

MR JUSTICE OUSELEY
PRESIDENT