Tribunal decisions

The decision

IN THE IMMIGRATION APPEAL TRIBUNAL

JC (Ss.82 & 83 – rights of appeal) Ethiopia [2005] UKIAT 00030

Heard at:
Field House
Decision number:

Heard on:
18 October 2004
Appeal number:

Date typed:
18 October 2004
Date promulgated:
1 February 2005

Before:

MR. C M G OCKELTON (DEPUTY PRESIDENT)
MS. D K GILL (VICE PRESIDENT)
MR. C P MATHER (VICE PRESIDENT)

Between:

Appellant

And

The Secretary of State for the Home Department
Respondent

DETERMINATION AND REASONS

Representation:

For the Appellant: Mr. P Turner, of Counsel, instructed by J D Spicer & Co. Solicitors.
For the Respondent: Mr. J McGirr, Senior Home Office Presenting Officer.

1. The Appellant (a national of Ethiopia, born on 13 November 1985) has appealed, with permission, against the Determination of Miss C M Glenn, an Adjudicator, who (following a hearing on 18 September 2003 at Hatton Cross) dismissed his “appeal” on asylum and human rights against the Secretary of State’s decision of 22 April 2003 to refuse asylum and to grant limited leave to enter the United Kingdom until 12 November 2003 – that is, the day before the Appellant’s 18th birthday.

2. It will be noted that the Appellant was granted limited leave to enter for a period of about seven months. At the hearing before us, Mr. McGirr confirmed, and Mr. Turner agreed, that the Appellant had not been granted any earlier periods of leave. Mr. McGirr informed us that the Appellant has lodged an application for extension of his leave. This application has not been considered by the Secretary of State yet.

3. The Adjudicator considered the Appellant’s asylum and human rights claims substantively. She found that his removal would not be in breach of the United Kingdom’s obligations under the Refugee Convention, nor would it breach his protected rights under the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

4. The issues before us are:

(a) whether there is a right of appeal on asylum grounds under Section 83(2) where an applicant has been granted leave to enter or remain for a period of, or periods aggregating, one year or less;

(b) in the case of an applicant who has been granted leave to enter or remain in the United Kingdom for any period (whether, in aggregate, greater or less than one year), whether there is a right of appeal on human rights grounds under Section 83(2);

(c) in the case of an applicant who seeks to appeal against a decision granting him leave to enter or remain in the United Kingdom for any period, whether there is a right of appeal on human rights grounds under Section 82(2).

5. At the hearing, Mr. Turner submitted a Skeleton Argument, in which he accepts that the Appellant does not have a right of appeal against the Secretary of State's decision of 18 September 2003, whether on asylum or human rights grounds. Furthermore, the Appellant is not at risk of imminent removal, and accordingly, his human rights claim cannot succeed. We agree with Mr. Turner.

6. For the guidance of Adjudicators, we now set out our consideration of the issues identified above in more detail.

7. Section 83 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) is the only statutory provision under the 2002 Act which confers on a person who has been refused asylum but who has been granted limited leave a right of appeal to an Adjudicator for a determination of his or her asylum claim. Section 83 states:

83 (1) This section applies where a person has made an 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.

8. Section 83(1)(b) makes it very clear that the right of appeal conferred by Section 83(2) only applies to a person who has been granted leave to enter or remain for a period exceeding one year, or periods which, in aggregate, exceed one year. There is no right of appeal under this section where the total grant is for one year or less.

9. Since the Appellant in this case was granted leave to enter for a period of 7 months, he did not have a right of appeal on asylum grounds. The Notice of the decision dated 22 April 2003 incorrectly informed him that he had a right of appeal under Section 83(2). This is an error in the Notice of the decision. Such an error cannot confer jurisdiction, where none is provided for by legislation. There is no question of any legitimate expectation arising on account of such an error. Any right of appeal to an Adjudicator must be conferred by statue and cannot be acquired by arguments as to legitimate expectation. Mr. McGirr informed us that the wrong form of the notice had been issued – i.e. the form which should have been issued was the one which would have informed the Appellant that he did not have a right of appeal to an Adjudicator.

10. Furthermore, there was no right of appeal on human rights grounds in this case either, for the following reasons:

(1) There was no right of appeal on human rights grounds under Section 83(2) because Section 83(2) makes it clear that an appeal under Section 83 is brought “against the rejection of the asylum claim” – that is to say, the substantive issue in the appeal is limited to the asylum claim. This is reinforced by the provisions of Section 84(3), which states:

An appeal under section 83 must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention.

(2) There was no right of appeal on human rights grounds under Section 82 because the decision notice in this case (correctly) identifies the decision as a “rejection of asylum claim and grant of leave to enter or remain”. In other words, this is a decision to grant leave and, for this reason, it is not a decision included in the definition of “immigration decision” in Section 82(1).

11. Even if there had been a right of appeal on human rights grounds, the Appellant's human rights claim could not possibly have succeeded. In the first place, removal is not imminent, because he has lodged an application for extension of his leave. The Secretary of State has not considered his application yet. Until a decision is reached, it cannot be said to be imminent. In the second place, it is difficult to see how a decision to “grant leave” could amount to a breach of a person's human rights.

12. For these reasons, the Appellant does not, and never did, have a right of appeal on asylum grounds or on human rights grounds. Accordingly, the Adjudicator did not have any jurisdiction: There was no appealable decision. The proceedings before her were a nullity.

13. Mr. Turner was concerned at the possibility that the Secretary of State may certify any subsequent asylum and human rights claims lodged by the Appellant. The reason for Mr. Turner’s concern is that, if the Adjudicator's Determination stands as a determination of the Appellant's asylum and human rights claims, then it is open to the Secretary of State to invoke the one-stop provisions and certify a subsequent claim. Mr. McGirr undertook on the Secretary of State's behalf that the Secretary of State would not certify any subsequent asylum and human rights claim on the basis that he or the Adjudicator had already determined it. The proceedings before the Adjudicator were a nullity, with the effect that the Appellant's claim has not subject to any judicial scrutiny. We also record here that the Adjudicator's Determination should not be used in any future proceedings as a first determination pursuant to the guidance set out in Devaseelan * [2002] UKIAT 00702, for the same reasons.

Decision:

The appeal is DISMISSED.

Ms. D. K. GILL Date: 21 December 2004
Vice President