Kanyenkiko v Secretary of State for the Home Department

Section 58(9) of the Immigration and Asylum Act 1999 operates automatically where a Part 4 appeal, other than one under section 69(3), is pending and the appellant is granted leave to enter or remain. No further executive or tribunal decision is required. The appeal is treated as abandoned immediately, leaving nothing to amend or vary. A section 69(3) appeal cannot be filed before the statutory ground has arisen. Broad policy aims, international obligations and the existence of a subsequent section 69(3) right do not justify departing from the clear statutory language.

The appellant, a Burundian asylum seeker, appealed against removal directions under section 69(5) of the Immigration and Asylum Act 1999. While the appeal was pending, the Secretary of State granted her exceptional leave to remain for four years. She later applied to the Immigration Appeal Tribunal to vary the grounds of appeal so as to rely on section 69(3), concerning an asylum refusal where limited leave has been granted. The Tribunal held that the section 69(5) appeal had been abandoned under section 58(9) and dismissed it. The central issue was whether anything remained capable of amendment or variation when that application was made.

1. Appeal dismissed. The section 69(5) appeal was treated as abandoned under section 58(9) of the Immigration and Asylum Act 1999 on 22 February 2002, when exceptional leave to remain was granted.
2. Section 58(9) has two conditions: a pending Part 4 appeal other than an appeal under section 69(3), and a grant of leave to enter or remain while that appeal is pending. Once fulfilled, abandonment occurs immediately. No separate decision by the Secretary of State, adjudicator or Tribunal is required. Laws LJ gave the leading judgment. Arden LJ agreed, and Pill LJ agreed with both judgments.
3. There was no basis for adding a further condition that no effective immigration-status decision remained. The later application to vary the grounds could not revive or convert the abandoned appeal. The Court left open whether an appeal might, for good reason, proceed under another Part 4 provision in a different case.
4. A precautionary section 69(3) appeal could not have been filed before limited leave was granted, because the statutory right had not then arisen.
5. The Court distinguished Saad [2002] Imm AR 471, which concerned the former statutory scheme, and applied the reasoning in Diriye [2002] UK IAT 04402. The earlier Zeqaj appeal [2002] EWCA Civ 1919 was confined to the construction of section 66(2). Policy materials did not justify departing from the clear statutory wording, and the result was not inconsistent with the 1951 Refugee Convention.
6. There was no order for costs, save for detailed assessment of the appellant’s publicly funded certificate.

• Court of Appeal (Civil Division): dismissed the appeal, holding that the section 69(5) appeal had already been treated as abandoned when exceptional leave to remain was granted.
• Immigration Appeal Tribunal: decision notified on 31 July 2002; held that the appeal fell to be treated as abandoned under section 58(9) and dismissed it.
• Adjudicator: determination promulgated on 25 January 2002; decided the nationality and substantive asylum issues against the appellant.