Habte v Secretary Of State For the Home Department

An appellate tribunal must determine only the statutory appeal properly before it. Where an appellant does not fall within the statutory criteria for an appeal under section 66 of the Immigration and Asylum Act 1999, the tribunal cannot determine removal directions under section 66(2) when the appeal falls under section 69(1). In cases involving section 69, removal directions will normally be inappropriate for determination as a discrete issue separate from unresolved asylum and human-rights questions. The appeal was allowed and all issues were remitted for a complete rehearing before a differently constituted tribunal.

The applicant sought asylum after arriving in the United Kingdom and was given removal directions to Eritrea. The Special Adjudicator rejected his claims that he was of Eritrean ethnicity or stateless and that he faced persecution in Ethiopia or Eritrea. The applicant appealed. The Immigration Appeal Tribunal allowed the appeal, but confined its decision to the removal directions and treated the matter as arising under section 66(2), although the applicant’s appeal was under section 69(1) and also raised human-rights grounds under section 65. The Secretary of State appealed to the Court of Appeal. The central issue was whether the Tribunal had determined an appeal that was not before it and what order should follow.

The Court of Appeal unanimously allowed the Secretary of State’s appeal. Lord Justice Judge gave the first judgment; Lord Justice Potter and Sir Murray Stuart-Smith agreed.

1. The applicant’s appeal concerned refusal of asylum. Under section 69(1) of the Immigration and Asylum Act 1999, he could challenge the refusal and associated removal directions. His human-rights grounds were advanced under section 65. Since he was not an illegal entrant and did not meet the statutory criteria in section 66, he could not appeal under section 66.
2. The Immigration Appeal Tribunal nevertheless treated its decision as made under section 66(2). It held the removal directions unlawful because the Adjudicator had found the applicant Ethiopian rather than Eritrean. That was a jurisdictional error: the Tribunal had purported to determine an appeal that was not before it. Applying section 66 instead of section 69 left the asylum issues unresolved and provided no practical solution.
3. Nationality or citizenship, refugee status and removal directions were inextricably linked. Although a court may decline to decide points that do not arise, it was not open to the Tribunal to decide the removal issue under an inapplicable statutory provision. In cases involving section 69, it would normally be inappropriate to determine removal directions as a discrete issue separate from unresolved asylum and human-rights questions.
4. A complete rehearing of all issues before a differently constituted Immigration Appeal Tribunal was ordered. No order as to costs.

1. Court of Appeal (Civil Division): [2002] EWCA Civ 1167 — the Secretary of State’s appeal was allowed. A complete rehearing of all issues before a differently constituted Immigration Appeal Tribunal was ordered.
2. Immigration Appeal Tribunal: allowed the applicant’s appeal, but treated the matter as an appeal under section 66(2) concerning only the removal directions.
3. Special Adjudicator: rejected the applicant’s asylum and related removal-direction claims, finding that he had not established Eritrean ethnicity, statelessness or a well-founded fear of persecution.