JM v Secretary of State for the Home Department

A refusal to vary leave may be an immigration decision in consequence of which removal would breach Convention rights, even though removal directions require a later and separate decision. Section 84(1)(g) of the Nationality Immigration and Asylum Act 2002 therefore has a wider operation than cases of legally imminent removal.

Once a human-rights ground is properly before the Tribunal on a variation-of-leave appeal, it must determine it. A contrary construction would force a person either to leave without adjudication of the claim or to remain unlawfully pending removal directions. It would also conflict with the statutory preference for one-stop appeals.

The appellant, a Liberian former Supreme Court judge, appealed against the refusal to vary his leave to enter the United Kingdom. He relied on asylum and human-rights grounds, including family life under article 8 of the European Convention on Human Rights.

An adjudicator dismissed the appeal on 21 May 2004. The Asylum and Immigration Tribunal, in a starred determination promulgated on 26 January 2006, held that it could not determine the human-rights claim because removal was not imminent following a refusal to vary leave. The Secretary of State cross-appealed on that issue. The appellant’s separate challenge concerning amendment of his reconsideration grounds was adjourned.

The central issue was whether section 84(1)(g) of the Nationality Immigration and Asylum Act 2002 permitted a human-rights claim on an appeal against refusal to vary leave, despite the need for a later removal decision.

1. Cross-appeal allowed. Laws LJ, with whom Waller and Leveson LJJ agreed, held that the Tribunal had adopted an erroneous construction of section 84(1)(g) of the Nationality Immigration and Asylum Act 2002. A refusal to vary leave does not itself make removal immediate, because removal directions require a further decision. But removal may nevertheless be an indirect consequence of the refusal: without that refusal, removal directions could not lawfully be given.

2. The wider meaning of “in consequence of” was required by the statutory context. A person whose variation appeal failed would be required to leave and might commit an offence by remaining. A construction preventing adjudication at that stage would leave the person to depart without determination of a Convention claim, or remain unlawfully awaiting removal directions. It could also result in an out-of-country appeal or certification under section 94 before an in-country human-rights claim had been determined.

3. The legislation favoured one-stop appeals. Human-rights issues could be integral to the decision whether leave should be varied. Section 84(1)(c) was apt for an appeal concerning imminent removal, whereas section 84(1)(g) had independent work in addressing the broader contingency arising from a variation-of-leave refusal.

4. The reasoning in Saad & ors v Secretary of State [2001] EWCA Civ 2008, concerning the hypothetical nature of asylum appeals, supported that construction. The Strasbourg reasoning in Vijayanathan and Pusparajar v France (1992) 15 EHRR 62 did not determine the statutory question. A domestic provision may provide a broader opportunity for human-rights adjudication than Strasbourg minimum requirements demand.

5. Accordingly, once a human-rights point is properly before the Tribunal, it is obliged to determine it. Section 86(5) did not remove that jurisdiction: if the human-rights ground succeeded, the appeal had to be allowed under section 86(3)(a). The appellant’s substantive appeal remained adjourned.

• Court of Appeal (Civil Division): The Secretary of State’s cross-appeal was allowed in [2006] EWCA Civ 1402. The court held that the Asylum and Immigration Tribunal had erred in construing section 84(1)(g) of the Nationality Immigration and Asylum Act 2002. The appellant’s separate appeal concerning rule 62(7) of the Asylum and Immigration (procedure) Rules 2005 was adjourned.
• Asylum and Immigration Tribunal: In its starred determination of 26 January 2006, AIT No. AS/04660/2004, the Tribunal upheld the adjudicator’s dismissal and held that a human-rights claim was not justiciable on a variation-of-leave appeal because removal was not imminent.
• Adjudicator: On 21 May 2004, the adjudicator dismissed the appeal against the Secretary of State’s refusal of 9 February 2004 to vary leave.