Secretary of State for the Home Department v AS (Somalia), & Ors

A person may appeal against the rejection of an asylum claim under section 83 of the Nationality, Immigration and Asylum Act 2002 where the statutory conditions are satisfied, even if the rejection accompanied an immigration decision against which the person previously appealed under section 82.

No nexus is required between the rejection and the grant of leave exceeding one year, whether granted as one period or cumulatively. A court should not imply an exclusion designed to prevent a second opportunity to advance the asylum case. The detailed statutory code and the importance of the right of appeal require the language enacted by Parliament to be applied.

The Secretary of State appealed from Beatson J’s decision, [2011] EWHC 627 (Admin), quashing three Immigration Judges’ decisions and declaring that AS, CW and SD had rights of appeal under section 83 of the Nationality, Immigration and Asylum Act 2002.

The appeals concerning AS and SD were withdrawn. The remaining appeal concerned CW, whose asylum claim had been rejected in 2004. She had unsuccessfully appealed under section 82 against a separate refusal of leave to enter, relying on the Refugee Convention. After she received indefinite leave to remain in 2010, she sought to appeal against the original rejection under section 83.

The central issue was whether section 83 excluded a claimant who had already been able to advance the substance of the asylum case in an appeal against an immigration decision under section 82.

1. The Secretary of State’s appeal in CW’s case was dismissed unanimously. Sullivan LJ gave the judgment, with which Davis LJ and Maurice Kay LJ agreed. The appeals concerning AS and SD were withdrawn.

2. Section 83 of the Nationality, Immigration and Asylum Act 2002 applied according to its ordinary language. CW had made an asylum claim; the Secretary of State had rejected it; and CW had subsequently received leave to remain exceeding one year. Those facts satisfied section 83(1), and section 83(2) therefore conferred a right to appeal against the rejection.

3. No nexus was required between the rejection of the asylum claim and the qualifying grant of leave. Section 83(1)(b) expressly included periods of leave exceeding one year in aggregate. The grant which crossed that threshold could occur later and for reasons unrelated to the asylum decision.

4. A previous appeal under section 82 did not exclude a section 83 appeal. Although both appeals could involve the same substantive Refugee Convention ground under sections 84(1)(g) and 84(3), they challenged different decisions. The reasons-for-refusal letter expressly rejected CW’s asylum claim under paragraph 336 of the Immigration Rules. The following day’s refusal of leave to enter was a separate immigration decision.

5. The Secretary of State’s construction required words to be added to section 83 excluding rejections made in the context of section 82 immigration decisions. The court declined to add that qualification. The 2002 Act was a detailed and self-contained code specifying appealable decisions, grounds, in-country appeals and controls on repetitive claims. The importance of an appeal against rejection of an asylum claim reinforced the need to respect Parliament’s chosen language.

6. The possibility of delayed or repetitive appeals did not justify a different construction. The established principles in Devaseelan required an earlier determination to be the Tribunal’s starting point, with good reason needed for departure. Any wider loophole could be addressed by Parliament, while prompt decisions on further asylum representations remained within the Secretary of State’s control.

1. Court of Appeal (Civil Division): In [2011] EWCA Civ 1319, the Secretary of State’s appeal concerning CW was dismissed unanimously. The appeals concerning AS and SD were withdrawn.

2. High Court, Administrative Court: Beatson J, in [2011] EWHC 627 (Admin), granted judicial review, quashed the Immigration Judges’ decisions and declared that each respondent had a right of appeal under section 83 of the Nationality, Immigration and Asylum Act 2002.