[2003] UKIAT 90
- Case title: DJ (Abandonment, Voluntary return)
- Appellant name: DJ
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Poland
- Judges: Mr D K Allen, Mrs J Harris
- Keywords Abandonment, Voluntary return
The decision
jh
Heard at Field House
DJ (Abandonment - Voluntary return) Poland [2003] UKIAT 00090
On 5 September 2003
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:
7th October 2003.
Before:
Mr D K Allen (Chairman)
Mrs J Harris
Between
APPELLANT
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
RESPONDENT
DETERMINATION AND REASONS
1. The appellant appeals to the Tribunal with leave against the determination of an Adjudicator, R S Hobbs Esq, in which he dismissed his appeal against the respondent’s decision of 16 September 2002 issuing directions for his removal from the United Kingdom, asylum having been refused.
2. The hearing before us took place on 5 September 2003. Mr C Delisser for Anooma & Co appeared on behalf of the appellant, and Mr G Elks appeared on behalf of the Secretary of State.
3. Prior to the hearing we had been provided by Mr Elks with a copy of a Form IF101(PA) headed “Disclaimer of right of appeal against decision to refuse asylum/Notice of withdrawal of appeal or application for asylum”. This is signed by the appellant and contains what on the face of it is his agreement to withdraw his application for asylum and then as a result arrangement will be made for his removal or voluntarily supervised departure to Warsaw as soon as possible. It seems that he left on 25 June 2003.
4. Mr Delisser produced a skeleton argument and authorities. Among other things he argued that the disclaimer is the only evidence of the appellant’s apparent intention to abandon his appeal and that there was no evidence to suggest that he knew what he was signing, nor that the contents of the document had been explained to him in his own language before he signed it.
5. Mr Elks produced documentation from the International Organisation for Migration who operate a UK voluntarily assisted return and re-integration programme. The date of application made by the appellant was 16 April 2003, and again the form is signed by him. His reasons for wishing to return are given as being the following:
“The asylum application of my parents are refused and I don’t have any other choice.”
6. Mr Delisser made the point that his instructing solicitors had not bee instructed by the appellant to abandon the appeal and that they had been unable to contact him by letter at his home address or on his mobile telephone and that this has been the case since notification of permission to appeal was granted. He contended that the Home Office should have communicated with the appellant’s solicitors concerning his purported wish to abandon his appeal and that the failure to do so means that there is a strong risk that he has not effectively abandoned his appeal and that the burden for showing that he has done so lies on the Home Office. He argued that in order to give efficacy to the relevant statutory provision (and there was some dispute though at the end of the day the substance of it makes no difference as to whether we were dealing with abandonment of an appeal under the 1999 Act or the 2002 Act) it had to be interpreted as meaning that he had left the United Kingdom with the intention of abandoning his appeal and effectively therefore that he intended to leave permanently, in order for the relevant section to apply. Alternatively the Act must be read in accordance with the principles of natural justice. If he had been encouraged to leave the United Kingdom by the Secretary of State without it being made clear to him what the consequences of departure were, then the rules of natural justice had been breached. There was no indication that he had been given legal advice when he signed the disclaimer form, nor that a translation had been involved.
7. As regards the documentation from the International Organisation for Migration, Mr Delisser argued that it should be interpreted as meaning that that when he stated that he did not have any other choice, this meant that he perceived that he had no further right of appeal. The Home Office were required to ensure that the necessary safeguards were in place before depriving him of the necessary safeguards. In circumstances where he had earlier claimed that he would be persecuted it was important that the proper procedures were observed when it was now said that he had abandoned his appeal.
8. It seems clear that the appellant of his own volition went to the International Organisation for Migration and filled in the form headed “UK voluntary assisted return and re-integration programme”. We can see no other reason for attending that organisation except on a voluntary basis. In our view the reasons for wishing to return as stated are sufficiently clear. Given that his parents’ asylum application had been refused he felt that he did not have any other choice but to return. We do not think that that can be properly interpreted as indicating that he did not believe he himself had any further appeal rights. We see no reason to suppose that it would not have been made clear to him by his representatives after the Adjudicator hearing that an application was being made for permission to appeal and that he only had to keep in contact with them to discover the outcome of that application. It seems in fact that he attended the International Organisation for Migration on the very day that his solicitors signed the grounds of appeal. His failure to keep in contact with his solicitors thereafter cannot in our view be regarded as in any sense giving rise to proper criticism of the Home Office. Given that he voluntarily sought to be assisted to return, we also consider that the Home Office cannot be properly criticised for not contacting his solicitors and telling them what was happening. Whether or not the Home Office enquired of him whether he had told his solicitors of this is neither here nor there. In our view there is no obligation on the Home Office in the circumstances of a case such as this where a person has voluntarily sought to leave the United Kingdom and signed a declaration of voluntary return, that the Home Office should then contact his solicitors in effect to make sure that he knows what he is doing. There is no indication that he acted in any way other than voluntarily. We do not consider that the wording of the legislation admits of the interpretation that Mr Delisser seeks to put on it. In this regard we heard argument in particular from Mr Elks as to whether this falls under the 2002 or the 1999 Act, and at the end of the day both representatives agree that nothing hangs on the distinction. The relevant wording of Section 104(4) of the 2002 Act is as follows:
“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.”
9. The wording of Section 58(8) of the Immigration & Asylum Act 1999 is as follows:
“A pending appeal under this Part is to be treated as abandoned if the appellant leaves the United Kingdom.”
10. For what it is worth, we consider that Mr Elks was right to argue that this appeal falls under the 1999 Act, but it was, as we have noted above, common ground that the wording of the legislation is such that effectively it makes no difference. We do not consider that under either provision it can properly be said that more needs to be read into the wording than is contained there already. The situation in Muja [2002] 05107 where the Tribunal declined to interpret the abandonment provision in such a way as to make it applicable in a case where the Secretary of State had illegally removed an appellant, is clearly distinguishable from the instant case. The case before us is one where the appellant voluntarily sought the assistance of the International Organisation for Migration to enable him to return to Poland, in circumstances which in our view cannot be interpreted as has been suggested by Mr Delisser as implying that he believed that his appeal rights had come to an end, and he was duly assisted to leave. We do not consider that there is any duty in the circumstances of such a case on the Secretary of State to contact the appellant’s legal representatives to inform them of what is happening, and we do not see any flaw in the disclaimer notice that there is no indication that the contents had been explained to the appellant by an interpreter. No doubt it would be preferable if that had been the case, but we do not consider it can properly be suggested that on the face of it anything other than that the proper procedures have been observed, particularly where the appellant initially sought the assistance of a voluntary organisation to assist his departure.
11. As a consequence we conclude that this appeal has been abandoned.
D K Allen
Vice President
Heard at Field House
DJ (Abandonment - Voluntary return) Poland [2003] UKIAT 00090
On 5 September 2003
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:
7th October 2003.
Before:
Mr D K Allen (Chairman)
Mrs J Harris
Between
APPELLANT
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
RESPONDENT
DETERMINATION AND REASONS
1. The appellant appeals to the Tribunal with leave against the determination of an Adjudicator, R S Hobbs Esq, in which he dismissed his appeal against the respondent’s decision of 16 September 2002 issuing directions for his removal from the United Kingdom, asylum having been refused.
2. The hearing before us took place on 5 September 2003. Mr C Delisser for Anooma & Co appeared on behalf of the appellant, and Mr G Elks appeared on behalf of the Secretary of State.
3. Prior to the hearing we had been provided by Mr Elks with a copy of a Form IF101(PA) headed “Disclaimer of right of appeal against decision to refuse asylum/Notice of withdrawal of appeal or application for asylum”. This is signed by the appellant and contains what on the face of it is his agreement to withdraw his application for asylum and then as a result arrangement will be made for his removal or voluntarily supervised departure to Warsaw as soon as possible. It seems that he left on 25 June 2003.
4. Mr Delisser produced a skeleton argument and authorities. Among other things he argued that the disclaimer is the only evidence of the appellant’s apparent intention to abandon his appeal and that there was no evidence to suggest that he knew what he was signing, nor that the contents of the document had been explained to him in his own language before he signed it.
5. Mr Elks produced documentation from the International Organisation for Migration who operate a UK voluntarily assisted return and re-integration programme. The date of application made by the appellant was 16 April 2003, and again the form is signed by him. His reasons for wishing to return are given as being the following:
“The asylum application of my parents are refused and I don’t have any other choice.”
6. Mr Delisser made the point that his instructing solicitors had not bee instructed by the appellant to abandon the appeal and that they had been unable to contact him by letter at his home address or on his mobile telephone and that this has been the case since notification of permission to appeal was granted. He contended that the Home Office should have communicated with the appellant’s solicitors concerning his purported wish to abandon his appeal and that the failure to do so means that there is a strong risk that he has not effectively abandoned his appeal and that the burden for showing that he has done so lies on the Home Office. He argued that in order to give efficacy to the relevant statutory provision (and there was some dispute though at the end of the day the substance of it makes no difference as to whether we were dealing with abandonment of an appeal under the 1999 Act or the 2002 Act) it had to be interpreted as meaning that he had left the United Kingdom with the intention of abandoning his appeal and effectively therefore that he intended to leave permanently, in order for the relevant section to apply. Alternatively the Act must be read in accordance with the principles of natural justice. If he had been encouraged to leave the United Kingdom by the Secretary of State without it being made clear to him what the consequences of departure were, then the rules of natural justice had been breached. There was no indication that he had been given legal advice when he signed the disclaimer form, nor that a translation had been involved.
7. As regards the documentation from the International Organisation for Migration, Mr Delisser argued that it should be interpreted as meaning that that when he stated that he did not have any other choice, this meant that he perceived that he had no further right of appeal. The Home Office were required to ensure that the necessary safeguards were in place before depriving him of the necessary safeguards. In circumstances where he had earlier claimed that he would be persecuted it was important that the proper procedures were observed when it was now said that he had abandoned his appeal.
8. It seems clear that the appellant of his own volition went to the International Organisation for Migration and filled in the form headed “UK voluntary assisted return and re-integration programme”. We can see no other reason for attending that organisation except on a voluntary basis. In our view the reasons for wishing to return as stated are sufficiently clear. Given that his parents’ asylum application had been refused he felt that he did not have any other choice but to return. We do not think that that can be properly interpreted as indicating that he did not believe he himself had any further appeal rights. We see no reason to suppose that it would not have been made clear to him by his representatives after the Adjudicator hearing that an application was being made for permission to appeal and that he only had to keep in contact with them to discover the outcome of that application. It seems in fact that he attended the International Organisation for Migration on the very day that his solicitors signed the grounds of appeal. His failure to keep in contact with his solicitors thereafter cannot in our view be regarded as in any sense giving rise to proper criticism of the Home Office. Given that he voluntarily sought to be assisted to return, we also consider that the Home Office cannot be properly criticised for not contacting his solicitors and telling them what was happening. Whether or not the Home Office enquired of him whether he had told his solicitors of this is neither here nor there. In our view there is no obligation on the Home Office in the circumstances of a case such as this where a person has voluntarily sought to leave the United Kingdom and signed a declaration of voluntary return, that the Home Office should then contact his solicitors in effect to make sure that he knows what he is doing. There is no indication that he acted in any way other than voluntarily. We do not consider that the wording of the legislation admits of the interpretation that Mr Delisser seeks to put on it. In this regard we heard argument in particular from Mr Elks as to whether this falls under the 2002 or the 1999 Act, and at the end of the day both representatives agree that nothing hangs on the distinction. The relevant wording of Section 104(4) of the 2002 Act is as follows:
“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.”
9. The wording of Section 58(8) of the Immigration & Asylum Act 1999 is as follows:
“A pending appeal under this Part is to be treated as abandoned if the appellant leaves the United Kingdom.”
10. For what it is worth, we consider that Mr Elks was right to argue that this appeal falls under the 1999 Act, but it was, as we have noted above, common ground that the wording of the legislation is such that effectively it makes no difference. We do not consider that under either provision it can properly be said that more needs to be read into the wording than is contained there already. The situation in Muja [2002] 05107 where the Tribunal declined to interpret the abandonment provision in such a way as to make it applicable in a case where the Secretary of State had illegally removed an appellant, is clearly distinguishable from the instant case. The case before us is one where the appellant voluntarily sought the assistance of the International Organisation for Migration to enable him to return to Poland, in circumstances which in our view cannot be interpreted as has been suggested by Mr Delisser as implying that he believed that his appeal rights had come to an end, and he was duly assisted to leave. We do not consider that there is any duty in the circumstances of such a case on the Secretary of State to contact the appellant’s legal representatives to inform them of what is happening, and we do not see any flaw in the disclaimer notice that there is no indication that the contents had been explained to the appellant by an interpreter. No doubt it would be preferable if that had been the case, but we do not consider it can properly be suggested that on the face of it anything other than that the proper procedures have been observed, particularly where the appellant initially sought the assistance of a voluntary organisation to assist his departure.
11. As a consequence we conclude that this appeal has been abandoned.
D K Allen
Vice President