Massaquoi v Secretary Of State for the Home Department

An appeal under section 8(3) of the Asylum and Immigration Appeals Act 1993 concerns the decision to make a deportation order, rather than merely a threshold condition for an independent determination of refugee status. If that decision is withdrawn or quashed, there is no longer any subject matter for the appeal. A successful appeal against the deportation decision therefore requires dismissal of the substantive asylum appeal. A grant of exceptional leave to remain is not, by itself, determinative. Its effect must be considered if the deportation decision remains effective; a short grant may leave that decision unimpaired.

The appellant, a Sierra Leone national, applied for asylum after entering the United Kingdom as a visitor. The Secretary of State refused asylum, curtailed her leave and decided to deport her. Her appeal against the deportation decision under section 15 of the Immigration Act 1971 succeeded, but her linked asylum appeal under section 8(3)(a) of the Asylum and Immigration Appeals Act 1993 was dismissed. The Special Adjudicator recommended exceptional leave to remain, which the Secretary of State subsequently granted.

The Immigration Appeal Tribunal held that the section 8 appeal required an effective deportation decision and dismissed the appeal. The central issue before the Court of Appeal was whether the successful section 15 appeal and the grant of exceptional leave affected the continuing jurisdiction to determine the asylum appeal.

1. Appeal dismissed. The Court of Appeal, in the judgment of Kennedy LJ, with Schiemann LJ and Wilson J agreeing, held that section 8(3) focuses on the decision to make a deportation order. That decision is the subject matter of the appeal, not merely a condition precedent to it.
2. Where the deportation decision has been withdrawn or quashed, nothing remains for the appellate tribunal to determine under section 8(3). The appellant’s success under section 15 of the Immigration Act 1971 therefore left the Immigration Appeal Tribunal with no alternative but to dismiss the substantive asylum appeal.
3. The grant of exceptional leave to remain was irrelevant on the facts because the deportation decision had already ceased to be effective. If the deportation decision had remained effective when exceptional leave was granted, the tribunal would have had to consider the effect of that grant on the existing decision. A short grant might leave the deportation decision unimpaired and capable of challenge under section 8(3), but that question did not arise for decision.
4. The statutory scheme did not provide a free-standing substantive appeal determining refugee status independently of an effective appealable immigration decision. The later provisions of the Immigration and Asylum Act 1999 were informative but did not govern the case.
5. The appeal was dismissed, with detailed assessment of costs. Permission to appeal was refused.

• Immigration Appeal Tribunal: The tribunal dismissed the section 8(3) asylum appeal, holding that an effective deportation decision was required.
• Court of Appeal (Civil Division): The appeal was dismissed. The tribunal’s conclusion was upheld, although the Court explained that the deportation decision was the subject matter of the appeal rather than merely a gateway condition.