Yusuf v Secretary of State for the Home Department

Under the statutory appeal scheme in the Immigration and Asylum Act 1999, an appeal against refusal of leave to enter does not include an implied appeal against removal directions. The Act specifies when directions may be challenged. A notice which ambiguously refers to directions, read with a letter expressly deferring any decision on removal, does not establish that directions have been given.

An asylum claimant whose asserted nationality and account of persecution have been rejected cannot establish refugee status or refoulement on that account. However, an inconsistent alternative case does not, of itself, deprive an applicant of protection under the Refugee Convention or human-rights obligations if the decision-maker finds that alternative case to be true.

The appellant claimed asylum on arrival in the United Kingdom, asserting that he was a Somali national of Bajuni origin. The Secretary of State rejected the claim because he was not satisfied that the appellant was Somali. A letter stated that Somalia was identified solely to enable an appeal and that the appellant’s true nationality would be investigated if the appeal failed.

An adjudicator dismissed the appellant’s asylum and human-rights appeals after finding that he was not Somali and that his account lacked credibility. The Immigration Appeal Tribunal, in a starred decision, dismissed his further appeal and granted leave to appeal to the Court of Appeal.

The central issue was whether the documents issued by the Secretary of State constituted removal directions to Somalia, and what relevance the stated country of removal had to appeals under sections 65 and 69 of the Immigration and Asylum Act 1999.

1. Appeal dismissed unanimously. Latham LJ held, with whom Arden LJ agreed, that the letter and formal notice, read together, did not give removal directions. Although the notice referred to removal directions, it left unresolved whether directions had been given or were merely proposed. The accompanying letter made clear that the Secretary of State would reconsider removal after the appeal and after investigating nationality. The position was therefore distinguishable from Jazayeri v SSHD [2001] INLR 489, where the directions were unambiguous.

2. The structure of the Immigration and Asylum Act 1999 confined appeals concerning removal directions to the express routes in sections 59(4), 67, 68 and 69(5). Sections 59(1) and 69(1) concerned refusal of leave to enter and did not carry an implied appeal against directions. Section 65(1) could found a human-rights appeal against removal directions because directions concerned the right to remain, but no other implied right of appeal existed.

3. The appellant did not challenge the finding that he was not Somali. He therefore could not establish refugee status on his asserted Somali nationality and persecution claim under Article 1A of the 1951 United Nations Convention Relating to the Status of Refugees. No issue of refoulement under Article 33 arose. Since no removal directions had been made and the account was wholly disbelieved, refusal of leave did not itself establish a human-rights breach.

4. Latham LJ considered that the Tribunal did not need to invoke abuse of process. Pill LJ added that a claimant’s first case being inconsistent with an alternative case does not alone remove Convention protection. Where the decision-maker finds an alternative account to be true, international obligations may require protection. Any issue arising from actual directions could be addressed when those directions were made.

5. Pill LJ further held that the Secretary of State was entitled to refuse the claim when he did and was not required first to determine all consequential issues. He noted that section 84(1)(g) of the later Nationality, Immigration and Asylum Act 2002, which did not apply here, expressly provided a broader removal-based ground of appeal.

• Court of Appeal (Civil Division): dismissed the appellant’s appeal from the Immigration Appeal Tribunal.

• Immigration Appeal Tribunal: dismissed the appeal in a starred decision and granted leave to appeal to the Court of Appeal.

• Adjudicator: dismissed the asylum and human-rights appeals, finding that the appellant was not Somali and had not established the factual basis of his claim.