Leka v Secretary of State for the Home Department

An immigration appeal is limited to the grounds permitted by the applicable statutory scheme. Although paragraph 21(1) of the fourth schedule to the Immigration and Asylum Act 1999 requires an adjudicator to allow an appeal where the challenged decision is not in accordance with the law, paragraph 21(2) makes that provision subject to restrictions on the grounds of appeal. Where the only permitted grounds are Refugee Convention or human rights grounds, arguments based on legitimate expectation or failure to give reasons cannot sustain the appeal unless they fall within those statutory grounds. A decision to remove therefore stands where no proper permitted ground of appeal is available.

The appellant, a young man from Kosovo, appealed against an order of the Immigration Appeal Tribunal notified on 4 July 2002. The Tribunal had dismissed his appeal from an adjudicator’s decision that he had no prospect of successfully appealing the Secretary of State’s decision that he should return to Kosovo on attaining 18. Before the Court of Appeal, the appellant’s advisers accepted that arguments based on legitimate expectation and failure to give reasons did not fall within the statutory restrictions on appeal grounds. The central issue was whether any proper ground remained to challenge the removal decision.

The Court of Appeal unanimously dismissed the appeal. Lord Justice Ward delivered the judgment; Lord Justice Carnwath and Mr Justice Newman agreed.

1. The appeal was governed by paragraph 21 of the fourth schedule to the Immigration and Asylum Act 1999. Paragraph 21(1) provides that an adjudicator must allow an appeal if the decision challenged is not in accordance with the law. Under paragraph 21(2), that provision is subject to paragraph 24 and to any restriction on the grounds of appeal.
2. The relevant restrictions limited an appeal to Refugee Convention grounds under section 69(3) of the Immigration Appeals Act 1999 or human rights grounds under section 65 of that Act.
3. The proposed arguments concerning legitimate expectation and failure to give reasons did not fall within those permitted grounds. They therefore could not properly be advanced to challenge the decision.
4. The Secretary of State’s decision that the appellant should return to Kosovo on reaching 18 had to stand. No other proper ground was available, and the appeal was dismissed.

• Court of Appeal (Civil Division): By judgment dated 19 March 2003, [2003] EWCA Civ 637, dismissed the appeal.
• Immigration Appeal Tribunal: An order notified on 4 July 2002 dismissed the appellant’s appeal from the adjudicator’s decision.
• Adjudicator: Decided that the appellant had no prospect of successfully appealing the Secretary of State’s decision.