R (Kariharan) v Secretary of State for the Home Department (R (Kumarakuruparan) v Secretary of State for the Home Department)

A direction to remove a person from the United Kingdom is a decision relating to that person’s entitlement to enter or remain for the purposes of section 65(1) of the Immigration and Asylum Act 1999. The provision is not confined to decisions which create, determine, declare or terminate immigration status.

Removal is discretionary rather than an automatic legal consequence of an earlier immigration decision. It may therefore determine, threaten or cause the loss of an entitlement arising from a valid human rights claim. A statutory right of appeal cannot be replaced by a discretionary policy or by judicial review. Repetitive or abusive claims are governed by Parliament’s one-stop and certification provisions; their possibility does not justify narrowing the appeal right.

These conjoined appeals concerned removal directions issued after section 65 of the Immigration and Asylum Act 1999 came into force, although the underlying refusals of leave or illegal-entry decisions had been made earlier.

Stanley Burnton J held in the claims of Kariharan and Koneswaran that removal directions were merely administrative enforcement measures and were not appealable under section 65. Newman J reached the opposite conclusion in Kumarakuruparan’s claim, holding that removal directions could determine or relate to an asserted human-rights entitlement to remain.

The common issue was whether removal directions constituted a decision under the Immigration Acts relating to a person’s entitlement to enter or remain in the United Kingdom.

1. The Court unanimously allowed Kariharan and Koneswaran’s appeal and dismissed the Secretary of State’s appeal in Kumarakuruparan. Removal directions are capable of challenge by appeal under section 65(1) of the Immigration and Asylum Act 1999.

2. Lord Justice Auld held that the words “any decision” and “relating to” extend beyond decisions directly determining or declaring immigration status. If a person has a valid human rights claim against removal, that person has an entitlement to remain. Removal directions are discretionary and may determine, threaten or cause the loss of that entitlement. This applies whether the directions are free-standing or consequential upon an earlier refusal of leave or illegal-entry decision.

3. A decision that a person is an illegal entrant and should not be permitted to remain is itself a decision relating to entitlement. That does not prevent subsequent removal directions from also falling within section 65. The nature of the decision is critical; the identity of the immigration authority making it is immaterial.

4. The broader construction accords with the statutory scheme. Parliament intended asylum grounds, human rights grounds and other reasons for remaining to be considered together where possible. Sections 73 to 77 provide mechanisms for controlling repetitive and abusive claims. The possibility of a last-minute appeal therefore supplies no proper basis for restricting the antecedent right of appeal. Changed family, health or country conditions may also make a later challenge genuine rather than abusive.

5. Lord Justice Sedley agreed. In ordinary language, a decision to remove is closely related to entitlement to enter or remain. The Secretary of State’s proposed construction would substantially rewrite section 65 and reduce its human-rights appeal right to an almost empty one, because human-rights issues ordinarily arise when removal is chosen rather than when immigration status is first determined.

6. Lady Justice Arden also agreed. Neither the statutory language nor the scheme supported limiting section 65 to one appeal during a single episode of contact with the immigration authorities. A discretionary policy for generating an appeal could not replace a statutory right.

• Court of Appeal: In [2002] EWCA Civ 1102, unanimously allowed Kariharan and Koneswaran’s appeal, dismissed the Secretary of State’s appeal in Kumarakuruparan, awarded costs accordingly and refused permission to appeal.
• High Court, Queen’s Bench Division: Stanley Burnton J held that the removal directions concerning Kariharan and Koneswaran were not decisions appealable under section 65 of the Immigration and Asylum Act 1999.
• High Court, Queen’s Bench Division: Newman J held in Kumarakuruparan’s claim that the removal directions were a decision capable of appeal under section 65.