Saad, Diriye and Osorio v Secretary of State for the Home Department

An asylum appeal under section 8 of the Asylum and Immigration Appeals Act 1993 may be used to challenge a refusal to recognise refugee status, even where the claimant has been granted limited or exceptional leave to remain. A grant of such leave does not remove a subsisting refusal decision from the appellate jurisdiction.

The decisive question is ordinarily whether the claimant is a refugee when the appeal is heard. Under section 8(2), the tribunal should assume that conditions existing at the hearing will continue when limited leave expires. It should not require an appellant to prove the conditions that will exist years later. This construction enables refugees to obtain their Convention rights and accords with the United Kingdom’s international obligations.

The three appellants had claimed asylum. The Secretary of State rejected their claims but granted each limited or exceptional leave to remain.

Osorio appealed under section 8(1) of the Asylum and Immigration Appeals Act 1993. The Immigration Appeal Tribunal held that the subsequent grant of exceptional leave left no effective appeal. Saad and Diriye appealed under section 8(2). Their appeals were dismissed because they could not prove that they would be refugees when their respective periods of leave ended.

The common issue was whether section 8 permitted an asylum claimant with limited leave to pursue an appeal to establish refugee status, and whether status was to be assessed at the hearing or at the future expiry of that leave.

1. Appeals allowed. The court held that all three appellants retained a statutory appeal capable of determining their refugee status. Their cases were remitted to the Immigration Appeal Tribunal.
2. Section 8 of the Asylum and Immigration Appeals Act 1993 was directed to the United Kingdom’s obligations under the Convention. It had to be construed, so far as its language allowed, consistently with the obligation to afford Convention rights to persons who were in truth refugees. Those rights extended beyond protection from refoulement.
3. For an appeal under section 8(1), a refusal of leave to enter remained the subject of the appeal unless it had been withdrawn or reversed. The grant of exceptional leave did not itself extinguish that refusal. Massaquoi v Secretary of State for the Home Department [2001] Imm AR 309 was distinguishable because the deportation decision in that case had ceased to exist.
4. Following Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97, the section 8 appellate process was an extension of decision-making. The statutory language asks whether removal would be contrary to the Convention. Accordingly, appeals under sections 8(1), 8(3) and 8(4) require assessment of refugee status when the appeal is heard.
5. The same approach governed section 8(2). Where an appellant presently has refugee status, the tribunal must proceed on the hypothesis that the current circumstances will subsist when limited leave ends. Requiring proof of conditions at that future date would make the appeal right largely ineffective. The equivalent construction applied to rule 334(iii) of the immigration rules; otherwise the grant of exceptional leave could defeat the protection which the rules and section 2 required.

Osorio’s appeal was remitted for determination on its merits. The tribunals had erred in the appeals of Saad and Diriye by requiring proof of future persecution, so those appeals were also remitted.

• Court of Appeal (Civil Division): Allowed all three appeals and remitted the cases to the Immigration Appeal Tribunal for determination or reconsideration on the merits.
• Immigration Appeal Tribunal: Dismissed Osorio’s appeal on the basis that exceptional leave left nothing to appeal; dismissed Saad’s and Diriye’s appeals because they could not establish refugee status at the future expiry of their leave.
• Special adjudicators: Had dismissed the underlying asylum appeals.