Dupovac v Secretary of State for the Home Department

Under section 33(4) of the Immigration Act 1971, as amended by paragraph 4(2) of Schedule 2 to the Asylum and Immigration Act 1996, an appeal is treated as abandoned when the appellant leaves the United Kingdom. Departure is determinative, and no further inquiry into intention or the circumstances of departure is required. The construction does not prevent abandonment while the appellant remains in the United Kingdom. Procedural rules permitting an appeal to be determined in the appellant’s absence do not alter that result. The court reserved whether every physical departure from the country constitutes statutory leaving.

The appellant, a Bosnian national, claimed asylum after entering the United Kingdom. The Secretary of State refused to recognise her as a refugee but granted exceptional leave to remain. A later application to upgrade her status was refused, and she appealed under section 8(2) of the Asylum and Immigration Appeals Act 1993.

She travelled to Italy for a short social visit and returned during the currency of her leave. The Secretary of State treated the appeal as abandoned under amended section 33(4) of the Immigration Act 1971. The Special Adjudicator dismissed the appeal, and the Immigration Appeal Tribunal, by a majority, dismissed the further appeal. Although the appeal had become academic after the appellant was granted indefinite leave to remain, the Court of Appeal heard it because the issue affected many pending appeals. The central question was whether leaving the United Kingdom was determinative of abandonment or merely permissive or presumptive.

The appeal was dismissed unanimously. Waller LJ delivered the leading judgment. Chadwick LJ agreed entirely, and Sir Christopher Slade agreed with both judgments.

1. Construction of section 33(4). The words linking abandonment to the appellant’s leaving the United Kingdom require the adjudicator or tribunal to treat the appeal as abandoned once departure is established. They do not merely trigger an inquiry into intention or the particular circumstances of departure.
2. Meaning of the statutory language. The conclusion is reinforced by R v Immigration Appeal Tribunal and the Lord Chancellor ex parte Ali [1998] INLR 526, which established that an appeal may be abandoned while the appellant remains in the United Kingdom. Reading departure as merely permissive would leave the statutory words without a satisfactory purpose.
3. Procedural rules. Rules 33(1)(a) and 35(1)(b) of the Asylum Appeals (Procedure) Rules 1996, which permit determination of an appeal in an appellant’s absence, do not alter the plain meaning of section 33(4). Their continued application to appeals under section 3(2) of the Asylum and Immigration Act 1996 does not assist the appellant.
4. Reserved question. The court did not decide whether every physical departure from the shores of the United Kingdom constitutes leaving for statutory purposes. Waller LJ reserved the possibility that some unusual physical departures might not qualify, and Chadwick LJ expressed no view because the issue did not arise. It was accepted that the appellant had left the United Kingdom.
5. Later legislation and order. The later wording in the Immigration and Asylum Act 1999 provided context only and did not determine the meaning of the 1996 amendment. Appeal dismissed. No costs.

• Court of Appeal (Civil Division): Appeal dismissed unanimously. The court construed amended section 33(4) of the Immigration Act 1971 as making departure determinative of abandonment.
• Immigration Appeal Tribunal: By a majority, dismissed the substantive appeal in a decision notified on 6 August 1998.
• Special Adjudicator: Held on 30 December 1997 that the appeal had been abandoned because the appellant had left the United Kingdom, and dismissed the appeal.