Emunefe v Secretary of State for the Home Department

An immigration appeal, including a further appeal to the Immigration Appeal Tribunal, is a single pending appeal process for the purposes of section 58(9) of the Immigration and Asylum Act 1999. A grant of leave to enter therefore causes a pending appeal on a racial-discrimination ground to be treated as abandoned, whether that ground is viewed as a separate appeal or as a ground within one appeal.

That construction does not deprive a person whose discrimination issue has not been determined of a county court remedy. Once no immigration appeal is pending or available, section 57A of the Race Relations Act 1976 permits a claim for damages, subject to the applicable time limit. There was consequently no basis to read down the abandonment provision under the Human Rights Act 1998.

A Nigerian national was refused entry clearance as a working holidaymaker. An adjudicator allowed his immigration appeal on the merits but did not decide his additional allegation that the Entry Clearance Officer had racially discriminated against him.

The appellant appealed to the Immigration Appeal Tribunal solely to obtain a determination on discrimination, which he considered necessary for a county court damages claim. Before that appeal was decided, he was granted entry clearance and entered the United Kingdom. The Tribunal held that the appeal was treated as abandoned by section 58(9) of the Immigration and Asylum Act 1999.

The central issues were whether the discrimination appeal survived the grant of leave and, if not, whether that result infringed the appellant’s human rights or prevented a county court claim.

Appeal dismissed unanimously. Lord Justice Clarke gave the principal judgment. Lord Justice Pill agreed with it, including its approach to section 3(1) of the Human Rights Act 1998. Mr Justice Rimer agreed and gave additional reasons on the construction of section 58.

1. Section 58 of the Immigration and Asylum Act 1999 treats the adjudicator stage and any further appeal to the Immigration Appeal Tribunal as one continuing appeal process. Sections 58(5) to (7) keep the original appeal pending until a further appeal is determined, withdrawn or abandoned. Schedule 4, including the machinery for an appeal to the Tribunal, was enacted as part of Part IV. A pending appeal in section 58(9) therefore includes a further appeal to the Tribunal.

2. Section 58(9) applied to an appeal brought under section 65(1) on racial-discrimination grounds. It did so whether sections 59 and 65 created two rights of appeal or one appeal with separate grounds. The grant of leave to enter consequently caused the appellant’s outstanding discrimination appeal to be treated as abandoned. There was no basis for severing that ground from the abandoned appeal.

3. The court applied the reasoning in R (Bibi) v Immigration Appeal Tribunal [2005] EWHC 386 (Admin). Section 57A(1) of the Race Relations Act 1976 bars a county court immigration discrimination claim only while an immigration appeal is pending or could be brought. Since the appellant’s discrimination issue had not been decided in the immigration proceedings, he could bring a county court claim under section 57 after abandonment. The limitation period ran under section 68(2A), subject to the county court’s just and equitable extension power.

4. Accordingly, the abandonment of this appeal did not infringe the appellant’s rights. The clear wording of section 58(9) could not properly be read down for his benefit, and no declaration of incompatibility could appropriately be made for a person whose rights were not infringed. The court noted, without deciding the point, the potentially prejudicial position where an adjudicator has already rejected the discrimination issue before leave is granted.

The appeal was dismissed. There was no order for costs, save for detailed assessment of the appellant’s Community Legal Service Funding costs.

• Court of Appeal (Civil Division) — dismissed the appeal and upheld the conclusion that the further appeal was treated as abandoned: [2005] EWCA Civ 1002.
• Immigration Appeal Tribunal — dismissed the appeal because section 58(9) of the Immigration and Asylum Act 1999 treated it as abandoned following the grant of leave to enter.
• Adjudicator — allowed the entry-clearance appeal on its merits, but did not determine the racial-discrimination ground.