MS (Palestinian Territories) v Secretary of State for the Home Department

A statutory appeal against a decision to remove an illegal entrant cannot challenge the lawfulness of removal directions which have not yet been made. Removal directions are not an immigration decision under Nationality, Immigration and Asylum Act 2002, and their prospective legality under Schedule 2 to the Immigration Act 1971 does not make the removal decision itself contrary to law.

A proposed destination identifies the country against which asylum and human rights consequences are assessed. It is not an inherent or final part of the removal decision. Removal directions depend on circumstances when they are issued and, if then unlawful, may be challenged by judicial review.

The appellant was an illegal entrant who described himself as Palestinian. The Secretary of State rejected his asylum and human rights claims and decided to remove him, identifying the Palestinian National Authority as the proposed destination. The Asylum and Immigration Tribunal dismissed his appeal, including his contention that removal directions to that destination would be unlawful under Schedule 2 to the Immigration Act 1971.

After his asylum and human rights grounds had become spent, the appellant relied solely on section 84(1)(e) of the Nationality, Immigration and Asylum Act 2002. He argued that the removal decision was not in accordance with the law because future directions to the proposed destination could not lawfully be made. The central issue was whether that contention could be determined in a statutory appeal against the removal decision.

1. Appeal dismissed. Removal directions are absent from the exhaustive list of appealable immigration decisions in section 82(2) of the Nationality, Immigration and Asylum Act 2002. It would therefore be anomalous to permit a statutory appeal to challenge future directions which had not been made, where the objection concerned only their legality and not the removal decision or its consequences.

2. The authorities consistently treated the removal decision and removal directions as distinct. A proposed destination may be examined under section 84(1)(g) because asylum and human rights claims must be assessed by reference to the consequences of removal to a particular place. That connection does not extend to a freestanding objection under section 84(1)(e) that future directions would fall outside Schedule 2 to the Immigration Act 1971.

3. The requirement in the Immigration (Notices) Regulations 2003 to state a proposed country or territory does not incorporate that destination into the immigration decision. A proposal is neither a final decision nor necessarily an intention to remove to that place. Its function includes focusing any asylum and human rights appeal.

4. Removal directions are determined by circumstances prevailing when they are issued. They may change following findings in the statutory appeal or other developments, and the Secretary of State may need to select another lawful destination. If removal later becomes legally or practically impossible, that issue must be addressed at that stage. Unlawful directions may be challenged by judicial review.

Lord Justice Scott Baker and Lord Justice Jacob agreed with Lord Justice Rix.

1. Court of Appeal (Civil Division): The appellant’s further appeal was dismissed unanimously: [2009] EWCA Civ 17.
2. Asylum and Immigration Tribunal, reconsideration: A tribunal presided over by Deputy President Ockelton held that the immigration judge had made no material error of law and ordered that her determination should stand.
3. Asylum and Immigration Tribunal: Immigration Judge Lloyd dismissed the asylum, human rights and destination-related grounds of appeal. A senior immigration judge subsequently ordered reconsideration solely on the section 84(1)(e) issue.