Shamsul Haque v The Secretary of State for the Home Department

An Immigration Judge must determine a ground of appeal under section 84(1)(g) of the Nationality, Immigration and Asylum Act 2002, even where the appellant first relies on the Refugee Convention in the appeal grounds. The duty under section 86(2) is not conditional on an earlier asylum decision by the Secretary of State.

An appeal tribunal neither determines an asylum application nor grants refugee status in performing that duty. It has no power or legal duty to adjourn or remit the appeal so that the Secretary of State can conduct the personal interview required by paragraph 339NA of the Immigration Rules, which concerns an asylum application made to the Secretary of State.

The appellant, a Bangladeshi national liable to removal as an illegal entrant, appealed against the refusal of his human-rights application and the related removal directions. Before appealing, he had not made an asylum claim to the Secretary of State, although he had raised Article 3 and Article 8 matters.

For the first time in his appeal grounds he alleged that removal would breach the United Kingdom's Refugee Convention obligations. The First-tier Tribunal dismissed the appeal, including the Refugee Convention ground, after rejecting his account as not credible. It also refused an adjournment sought so that he could be interviewed by the Secretary of State about the claimed asylum element.

The sole permitted issue was whether that refusal of an adjournment involved an error of law.

1. Appeal dismissed. The First-tier Tribunal made no error of law in refusing to adjourn. Under section 86(2) of the Nationality, Immigration and Asylum Act 2002, it was obliged to determine every ground of appeal raised, including the section 84(1)(g) Refugee Convention ground.

2. That obligation did not depend on the Secretary of State having first made an asylum decision. In deciding whether removal would breach Refugee Convention obligations, the Immigration Judge was exercising the appellate function conferred by the Act. She was not deciding an asylum claim or granting refugee status, and therefore was not usurping a function of the Secretary of State.

3. The Tribunal's approach was consistent with AS (Afghanistan) [2009] EWCA Civ 1076, which required the Tribunal to consider qualifying matters raised in a section 120 statement, rather than only the matters considered in the original immigration decision.

4. Paragraph 339NA of the Immigration Rules requires a personal interview before the Secretary of State decides an asylum application made to her. It does not require an interview before an Immigration Judge determines a Refugee Convention ground of appeal. The Immigration Judge had no power to direct or remit the matter to the Secretary of State for that purpose. The appellant could instead give oral evidence at the appeal hearing.

5. The proposed new ground, alleging an error by the Secretary of State in not treating earlier representations as an asylum claim, was rejected. It had not been raised before the First-tier Tribunal and could not establish an error of law in that tribunal's determination.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal on the sole permitted ground, holding that the First-tier Tribunal's refusal to adjourn disclosed no error of law.
• First-tier Tribunal: by a determination promulgated on 26 November 2010, dismissed the appeal against removal directions on all grounds, including the Refugee Convention ground.