GH v Secretary of State for the Home Department

An appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 lies against a defined immigration decision, not against later freestanding removal directions. Where no directions, established route or committed method of return exists, an appellate tribunal cannot determine whether hypothetical en route risks would breach the Refugee Convention or Convention rights.

En route risks may be considered where removal directions are linked to the appealable immigration decision, or where a particular route or method is implicit in that decision. A challenge to allegedly unlawful directions issued separately at a later time must be brought by judicial review.

The appellant, an Iraqi Kurd whose home was in the Kurdish Autonomous Area, appealed against the dismissal of his asylum and human rights appeal by the Immigration Appeal Tribunal. The Secretary of State had refused him asylum and leave to enter but had issued no removal directions. No method or route for an enforced return to Iraq had been settled.

The appellant argued that, on an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002, the appellate authority had to consider risks arising during removal and travel to a safe home area. The central issue was whether the authority had jurisdiction to examine such risks when the proposed route and method of return were unknown.

1. Appeal dismissed. No removal directions had been issued and the Secretary of State had specified no route or method of return. Any assessment of en route risk would therefore have depended on speculation about a hypothetical situation. The appellant could not establish a well-founded fear of persecution or a real risk under articles 2 or 3 from an unknown route or method of return (per Scott Baker and Keene LJJ; the President agreeing).

2. The appellate tribunal's jurisdiction under section 82 of the Nationality, Immigration and Asylum Act 2002 attaches to an “immigration decision” defined in section 82(2). Removal directions are absent from that exhaustive definition. Parliament had removed the separate right of appeal against such directions which existed under section 69(5) of the Immigration and Asylum Act 1999. Accordingly, later freestanding removal directions cannot themselves be appealed under the 2002 Act.

3. Section 84(1)(g) permits an appeal on the ground that removal in consequence of an immigration decision would breach the Refugee Convention or be incompatible with Convention rights. It does not create a freestanding appeal against directions subsequently issued. If later directions are alleged to breach the United Kingdom's international obligations, the remedy is judicial review.

4. The court left open the precise jurisdiction where removal directions are issued simultaneously with and linked to an appealable immigration decision, or where an established or committed route is implicit in that decision. Scott Baker and Keene LJJ considered that section 84(1)(g) was wide enough to permit examination of en route risks in those circumstances. That approach would also further the statutory policy of resolving connected issues in one appeal.

5. The appeal was academic so far as the safety of the appellant's eventual journey was concerned. Any future challenge would depend upon the directions actually issued and the real risks associated with them.

• Court of Appeal (Civil Division): Dismissed the appeal and upheld the Immigration Appeal Tribunal's conclusion that it should not assess risks arising from an unspecified and hypothetical route of return.
• Immigration Appeal Tribunal: Dismissed the asylum and human rights appeal after reconsidering the claim. It held that the appellant had not established a real risk in his home area and declined to determine the safety or practicality of an unspecified journey there.
• Adjudicator: Dismissed the appeal against the refusal of asylum and leave to enter. The Immigration Appeal Tribunal later found the determination inadequately reasoned and reconsidered the claim afresh.