Tribunal decisions

The decision

HN (Statutory Abandonment – Discretionary Leave) Lebanon [2004] UKIAT 00322
IMMIGRATION APPEAL TRIBUNAL

Date of Hearing: 13 September 2004
Date Signed: 200
Date Determination Notified: 200
25/11/2004

Before:

Mr D K Allen (Vice President)
Ms C Jarvis (Vice President)
Dr J O de Barros

Between

Appellant

And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DETERMINATION AND REASONS

1. The appellant, prior to his arrival in the United Kingdom in October 1997 was a resident of Lebanon. He claims that his nationality is “under consideration” by the Lebanese authorities. He applied for asylum on arrival in the United Kingdom. The Secretary of State on 11 June 2003 refused asylum and issued directions for the appellant’s removal from the United Kingdom. He appealed against that decision and his appeal was heard by an Adjudicator, Mr H B Trethowan, on 26 August 2003. In a determination promulgated on 8 September 2003 Mr Trethowan dismissed the appellant’s appeal under the Refugee Convention and under Article 3 of the Human Rights Convention and allowed his appeal under Article 8 of the Human Rights Convention. The appellant thereafter sought and was granted permission to appeal to the Tribunal in respect of the asylum and Article 3 issues. Permission was granted by the Tribunal in a determination promulgated on 27 October 2003.

2. In a decision dated 28 October 2003 the Secretary of State granted the appellant discretionary leave to remain in the United Kingdom until 6 October 2006. Following that grant, on 16 April 2004 a Home Office Presenting Officer wrote to the appellant’s solicitors expressing the view that the appeal must be said to be statutorily abandoned in accordance with the provisions of Section 104(4) of the Nationality Immigration and Asylum Act 2002.

3. The appeal came before the Tribunal on 19 April 2004 and the appeal was adjourned at that time until 13 September 2004 on which date it came before us. Mr D Bazini for Oaks Solicitors appeared on behalf of the appellant. Mr M Blundell appeared on behalf of the Secretary of State.

4. Both representatives had put in skeleton arguments prior to the hearing as directed by the Tribunal at the previous hearing. We are grateful to them both for those skeleton arguments and for the oral submissions in which they both developed the points in the skeleton arguments.

5. Mr Bazini pointed to the contrast between the wording of Section 58(9) of the Immigration and Asylum Act 1999 which stated that a pending appeal under any provision of the part of the Act other than Section 69(3) was to be treated as abandoned if the appellant was granted leave to enter or remain in the United Kingdom. He argued that this contrasted significantly with the wording of the current legislation under which an appeal under Section 82(1) was to be treated as abandoned if an appellant was granted leave to enter or remain in the United Kingdom or left the United Kingdom. Accordingly, Mr Bazini contended that Section 82(1) only concerned appeals “to an Adjudicator” whereas this was an appeal to the Tribunal. Mr Bazini accepted that under Section 104, appeals under Section 82(1) were pending during the entire period up to when the appeal was finally determined, withdrawn or abandoned or lapsed, but argued that the issue before the Tribunal was when an appeal could be abandoned and that this was a different matter. It was clear in the 2002 Act that the relevant sections were dealing with appeals at different stages. Section 82 came under the heading “Appeal to Adjudicator”, whereas appeals to the Tribunal came under the heading relevant Appeal from Adjudicator. If the statute had intended to refer to abandonment of appeals before the Tribunal it would have done so in the previous terms. On general principles of statutory interpretation, when legislation was not entirely clear it was necessary to ensure that it was neither draconian nor absurd. Abandoning an appeal by statute was a very serious step and it was necessary to construe the matter strictly and any doubt should be construed in the favour of the appellant.

6. It was also the case that if the Secretary of State’s argument was right it led to a perverse conclusion since the need for speed was emphasised. If the appeal was not abandoned the Tribunal could decide the appeal but if it was abandoned then the appeal for asylum was not determined and the appellant would be able to apply again so there would be a potential appeal before an Adjudicator and further avenues potentially thereafter all of which would lead to delay and expense. It achieved the opposite of what Parliament had intended. If the Tribunal were with Mr Blundell it might be appropriate to make suggestions to the Secretary of State as to future manner of dealing with matters of this sort such as not granting leave when the decision in principle to do so had been taken but to give an indication to that effect and await the outcome of the appeal, which would at least achieve finality. The current approach was absurd.

7. Mr Blundell argued that the 2002 legislation was clearly different and was differently drafted. The Section 82 right of appeal was predicated on the concept of an immigration decision whereas under the 1999 Act there were different sections where an appeal could be made. All the rights of appeal now came under Section 82. This change of approach brought about the inevitable change in the wording of the legislation. Otherwise Mr Blundell relied upon his skeleton argument.

8. By way of reply Mr Bazini argued that Mr Blundell had asked the Tribunal to read into the Act something that was not there. Section 82(1) concerned appeals to Adjudicators and if Section 104(1) was intended to cover both Adjudicator and the Tribunal appeals then it would say so. The nature of the appeal applied throughout the process.

9. We adjourned to consider this issue, since there would have been little point to go on and consider the substantive issues raised in Mr Bazini’s grounds of appeal if we were not with him on the abandonment point. Upon consideration we concluded that the appellant had indeed abandoned his appeal and there was therefore no appeal before us. We gave brief reasons for this to the representatives and undertook to set these out in greater detail in our determination which we now do.

10. It is convenient that we set out the relevant statutory provisions at the outset.

11. Section 82 of the Nationality Immigration and Asylum Act 2002 is to be found in part 5 of the Act under the sub-heading “Appeal to Adjudicator”. The relevant parts of that section provide as follows:

Section 82(1)

Where an immigration decision is made in respect of a person he may appeal to an Adjudicator.

12. Section 104 of the 2002 Act is headed “Pending Appeal” and states as follows:

(1) An appeal under Section 82(1) is pending during the period –

(a) beginning when it is instituted, and

(b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under Section 99).

(2) An appeal under Section 82(1) is not finally determined for the purposes of sub-section (1)(b) while a further appeal or an application under Section 101(2) –

(a) has been instituted and, is not yet finally determined, withdrawn or abandoned, or

(b) may be brought (ignoring the possibility of an appeal out of time with permission).

(3) The remittal of an appeal to an Adjudicator under section 102(1)(c) is not a final determination for the purposes of sub-section (2) above.

(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.

(5) An appeal under Section 82(2)(a), (c), (d), (e) or (f) shall be treated as finally determined if a deportation order is made against the appellant.

13. Section 101 of the 2002 Act is headed “Appeal to Tribunal” and the relevant parts of that state as follows:

(1) A party to an appeal to an Adjudicator under Section 82 or 83 may, with permission of the Immigration Appeal Tribunal, appeals to the Tribunal against the Adjudicator’s determination on a point of law.

14. The other relevant provision to mention is that referred to by Mr Bazini in particular, Section 58(9) of the Immigration and Asylum Act 1999. This states as follows:

“(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.”

15. As Mr Bazini rightly points out, the wording of the relevant provisions is different as between the two Acts. He argues that the clear implication from this is that Parliament did not intend the abandonment provisions to apply other than to appeals before Adjudicators in the 2002 Act, whereas under the 1999 Act any pending appeal under any provision of that part of the Act other than arising under Section 69(3) was to be treated as abandoned if as in this case the appellant was granted leave to enter or remain in the United Kingdom.

16. On the face of it we can see the attraction of Mr Bazini’s argument. We consider however that that argument ignores the provisions of Section 104 of the 2002 Act, and in particular sub-sections 1 and 2. In our view it is clear from these provisions that an appeal under Section 82(1), which this appeal is, remains pending until the time when, as in this case, it can be regarded as having been abandoned by virtue of discretionary leave having been granted. We do not read sub-section 1 of Section 104 as indicating that a Section 82(1) appeal is simply an appeal to an Adjudicator against the immigration decision, but rather as indicating the starting point of the appeal as it goes through the system. In our view it is intended to cover on appeal at every stage until it is finally determined, withdrawn or abandoned. That is to say, we do not read the heading to Section 82(1) as doing any more than identifying the gateway to the appeal process where the original appeal is made to an Adjudicator. Section 82 thereafter goes on to set out the various types of decision in respect of which an appeal to an Adjudicator can be made. This clarification and restructuring of the legislation is clearly different from the rather piecemeal way in which appeal rights were set out in previous legislation, and that as much as anything in our view explains the different ordering of the Act in this regard.

17. We have not of course ignored the points that Mr Bazini has made to us about the consequences of our decision and the need for legislation to be construed so as to resolve ambiguities in favour, as in this case, of the person more likely to be disadvantaged by them and we also bear in mind the points that Mr Bazini made about the cost and time implications of the decision to which we have come. Those points we consider would have more force if there were ambiguity in the legislation, but we do not see such ambiguity. Rather we consider that on a proper construction of the relevant provisions we can only conclude that this appeal has been abandoned. The contrast in the headings i.e. “Appeal to an Adjudicator” comprising the sub-heading before Section 82 in contrast to the sub-heading “Appeal from Adjudicator” above Section 100 of the Act and thereafter to the end of Section 103 does no more in our view than reflect the logical ordering of the various provisions rather than carrying any implications as to how specific provisions of the Act are to be interpreted.

18. For these reasons therefore we have concluded that the appellant’s appeal was abandoned at the point at which he was granted discretionary leave to remain on 28 October 2003. There is therefore no appeal before us.

D K Allen
Vice President