VN v Secretary of State for the Home Department

Under Nationality, Immigration and Asylum Act 2002, section 86(4), a removal decision cannot be held unlawful on the ground that it was made under an inappropriate provision where the same removal could lawfully have been made under another provision. The provision is mandatory. Accordingly, an asserted failure to comply with the Chicago Convention or related administrative instructions cannot found a successful appeal where the Secretary of State had statutory power to remove the person to the country from which he embarked for the United Kingdom under Schedule 2 to the Immigration Act 1971.

VN v Secretary of State for the Home Department concerned an Iranian national who arrived from India using a counterfeit Cypriot passport. Following the exhaustion of his earlier asylum appeal, the Secretary of State gave directions for his removal to India.

The reasons letter stated that removal would occur under the Chicago Convention. An Immigration Judge dismissed the appeal, including purported asylum, humanitarian protection and human-rights appeals. The appellant appealed to the Upper Tribunal. The principal issues were whether the Immigration Judge could dismiss an asylum appeal that was not before him and whether the stated reliance on the Chicago Convention made the removal decision unlawful.

1. Appeal dismissed. The Immigration Judge erred by purporting to dismiss an asylum appeal when no asylum appeal was before him. That error was immaterial.
2. Section 86(4) of the Nationality, Immigration and Asylum Act 2002 was mandatory. For the purpose of deciding whether a removal decision was unlawful, removal under a stated provision could not be regarded as unlawful if it could lawfully have been made under another provision.
3. Even if the notice and reasons letter were read as making removal under the Chicago Convention, the Secretary of State could lawfully have directed removal to India under paragraph 8(1)(c)(iii) of Schedule 2 to the Immigration Act 1971, as India was the country in which the appellant had embarked for the United Kingdom.
4. It was therefore unnecessary to determine whether the Chicago Convention or the Immigration Directorate Instructions had been complied with. Non-compliance with them could not make this removal decision unlawful for the statutory appeal ground.
5. The Immigration Judge had dismissed the Article 3, Article 8 and Qualification Directive aspects of the appeal. They were not challenged before the Upper Tribunal. The appeal had properly been dismissed.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal. The Immigration Judge’s error in dismissing a non-existent asylum appeal was immaterial, and section 86(4) required dismissal of the legality challenge.
• Immigration Judge: dismissed the appeal against directions for removal to India, and purported also to dismiss asylum, humanitarian protection, Article 3 and Article 8 appeals.