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

A notice stating that an illegal entrant is to be removed under section 82(2)(h) of the Nationality, Immigration and Asylum Act 2002 does not incorporate the proposed destination into the appealable immigration decision. The decision concerns removal from the United Kingdom. It is distinct from any later removal directions.

An appeal cannot therefore challenge the proposed destination on the ground that it would fail the admission requirements in paragraph 8(1)(c) of Schedule 2 to the Immigration Act 1971. Convention and Refugee Convention objections remain appealable under section 84. Operational objections to removal directions may, if necessary, be raised by judicial review after directions are made.

The appellant, an illegal entrant born in Gaza, unsuccessfully claimed asylum and humanitarian protection. His removal notice proposed the Palestine National Authority as the destination. He contended that the decision was not in accordance with the law because the evidence indicated that he could not be admitted there without identity documentation.

The immigration judge dismissed the appeal. The Tribunal ordered that decision to stand, and the Court of Appeal dismissed a further appeal in [2009] EWCA Civ 17.

The Supreme Court considered whether an appeal against a decision under section 82(2)(h) of the Nationality, Immigration and Asylum Act 2002 could challenge the proposed destination as incapable of satisfying paragraph 8(1)(c) of Schedule 2 to the Immigration Act 1971.

1. Appeal dismissed. Sir John Dyson SCJ, delivering the judgment of the Court, held that the proposed destination stated in a removal notice is not an integral part of an immigration decision under section 82(2)(h) of the Nationality, Immigration and Asylum Act 2002. The decision is that the person is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971. The later directions and their destination are distinct from that decision.

2. Section 84 distinguishes the present legality of an immigration decision from the prospective consequences of removal. Parliament expressly made removal consequences appealable where they would breach the Refugee Convention or Convention rights. It did not create an equivalent appeal concerning compliance with the operational requirements for future removal directions. The statutory references to removal decisions also identify removal from the United Kingdom without specifying a destination.

3. The words “by way of directions under” identify the category of immigration decision. They do not import every legal requirement governing future directions into the decision itself. Some directions under paragraph 8 need not identify a destination, and the statutory language provides no basis for importing destination directions while excluding directions concerning the vessel, aircraft or other mechanics of removal.

4. The legislative history supported that construction. Earlier legislation created express and restricted appeals against removal directions. The 2002 Act instead attached the appeal to the initial immigration decision. Practical questions affecting admission and documentation frequently arise only shortly before removal and are unsuitable for determination during an earlier statutory appeal. If unlawful or unimplementable directions are later maintained, judicial review remains available.

5. Regulation 5 of the Immigration (Notices) Regulations 2003 did not alter the meaning of section 82(2)(h). The requirement to state a proposed destination gives focus to asylum and human rights appeals under section 84(1)(c) and (g). A proposed destination is not necessarily a destination to which the Secretary of State has decided, or even presently intends, to remove the person.

1. United Kingdom Supreme Court: Dismissed the appeal and affirmed that section 82(2)(h) provided no appeal on the proposed-destination ground.
2. Court of Appeal: Dismissed the appeal in [2009] EWCA Civ 17.
3. Asylum and Immigration Tribunal: Found no material error of law and ordered the immigration judge’s decision to stand.
4. Immigration judge: Dismissed the asylum, human rights and “not in accordance with the law” grounds of appeal.