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

The Supreme Court held that an immigration decision under section 82(2)(h) of the Nationality, Immigration and Asylum Act 2002 that an illegal entrant "is to be removed" does not, at the decision stage, include as an integral part any proposed removal directions specifying the destination country or territory for the purposes of paragraph 8(1)(c) of Schedule 2 to the Immigration Act 1971. The court relied on the statutory language, which treats the decision to remove as distinct from any subsequent implementation of removal directions, the legislative history demonstrating that Parliament knew how to confer a right of appeal against directions where it intended to do so, and practical and policy considerations inherent in the one-stop appeal scheme under the 2002 Act.

The court also held that the Immigration (Notices) Regulations 2003 requirement that a notice state the country "to which it is proposed to remove the person" does not convert the proposed destination into a part of the immigration decision subject to appeal under section 84(1)(e); the regulation was enacted to make appeals under section 84(1)(c) and (g) effective by identifying the proposed destination relevant to asylum and human rights claims. Judicial review remains available to challenge removal directions if and when they are actually given and are unlawful.

Background and parties: The appellant, a Palestinian born in Gaza, entered the United Kingdom clandestinely in 2007 and claimed asylum and human rights protection. On 24 May 2007 the Secretary of State rejected those claims and issued a notice under the 2002 Act stating that removal directions would be to the "Palestine National Authority." The appellant appealed to the Tribunal; the Immigration Judge dismissed his appeal on asylum and human rights grounds and dismissed his challenge that the immigration decision was not "in accordance with the law" under section 84(1)(e) because removal to the Palestinian Territories would be impossible for lack of documents. The Tribunal refused reconsideration and the Court of Appeal dismissed the appellant's further appeal ([2009] EWCA Civ 17). The case reached the Supreme Court on the narrow legal question described below.

Nature of the claim: The appellant sought to challenge at the appeal stage the lawfulness of the proposed destination country stated in the notice of immigration decision on the basis that, if directions were given, the destination would not satisfy paragraph 8(1)(c) of Schedule 2 to the Immigration Act 1971 (in particular sub‑paragraph (iv) that there is reason to believe the person will be admitted).

Issues framed by the court: (i) Whether the specifying or proposing of a destination country in a notice of an immigration decision under section 82(2)(h) is an integral part of the immigration decision and therefore susceptible to appeal under section 84(1)(e); (ii) whether regulation 5(1)(b)(i) of the Immigration (Notices) Regulations 2003 required a different conclusion; and (iii) practical and policy consequences of treating a proposed destination as part of the decision.

Evidence and procedural history: The appellant adduced evidence from a caseworker recounting communications with the Palestine General Delegate Office that, because the appellant lacked birth and identity documents, it would be very unlikely or impossible for him to be readmitted to the Palestinian Territories. The Immigration Judge accepted that evidence but dismissed the legal challenge; the Tribunal and the Court of Appeal upheld that dismissal. The appeal to the Supreme Court raised only the legal issue about the scope of section 82(2)(h) and the effect of regulation 5.

Reasoning and conclusions: The court reasoned that the language of section 82, and in particular the contrast between the present-tense formulations in grounds such as section 84(1)(e) and the conditional wording of section 84(1)(g), indicates Parliament intended only one special substantive ground — where removal in consequence of the decision would breach the Refugee Convention or the ECHR — to be appealed at the decision stage. The statutory scheme treats a decision that a person "is to be removed from the United Kingdom" as separable from the later giving of removal directions and does not import the content of those directions (including destination) into the decision. The legislative history shows Parliament knew how to confer an appeal against directions where intended; the 2002 Act narrowed such rights. Practical and policy considerations also militate against resolving destination practicality at the decision stage because operational and documentary issues relevant to admission are often only resolvable shortly before removal. Regulation 5(1)(b)(i) was held to require that the notice state the "proposed" destination to inform asylum and human rights appeals, not to convert the proposal into an appealable decision. The court dismissed the appeal, confirming that challenges to the lawfulness of removal directions should ordinarily await the giving of directions and, if necessary, be pursued by judicial review.

Wider comment: The court observed that the one-stop appeal scheme aims at finality in respect of entitlement to remain and international protection; allowing appeals against proposed destinations would undermine that finality and generate successive appeals. The court noted that its ruling did not call into question earlier authorities cited in the proceedings.

Appeal dismissed. The court held that an immigration decision under section 82(2)(h) that an illegal entrant "is to be removed" does not include, as part of the decision, the specification of the destination country or territory for the purposes of paragraph 8(1)(c) of Schedule 2 to the Immigration Act 1971; the proposal of a destination in the notice is to inform possible asylum and human rights appeals but does not convert the proposed destination into an appealable part of the decision. The 2003 Regulations do not alter that construction, and practical, legislative and policy considerations support the conclusion that challenges to the lawfulness of removal directions are ordinarily to be made, if necessary, when directions are given (for example by judicial review).

Appeal to the Supreme Court from the Court of Appeal ([2009] EWCA Civ 17), following an Immigration Judge determination (dismissed 19 July 2007) and a Tribunal reconsideration order (17 August 2007) which upheld that determination. The Court of Appeal dismissed the appellant's appeal in [2009] EWCA Civ 17 before the matter proceeded to the Supreme Court.