Khine Zar Win v The Secretary of State for the Home Department

Nationality, Immigration and Asylum Act 2002, section 83 creates an appeal against the rejection of an asylum claim only where the relevant grant of leave exceeding one year postdates that rejection. A grant need not be causally connected with the asylum claim, but that does not make the chronological order immaterial.

Section 83 is directed to a person who has current qualifying leave after the asylum claim has been refused. It does not give a right of appeal merely because a person already holding leave later claims asylum and that claim is refused.

The appellant, a national of Myanmar, entered the United Kingdom as a student with leave valid until July 2012. While that leave remained extant, she made an asylum claim. The Secretary of State refused it without curtailing her leave.

Immigration Judge Brenells held that the refusal carried no right of appeal. The appellant appealed to the Upper Tribunal, contending that section 83 of the Nationality, Immigration and Asylum Act 2002 did not require any connection, including temporal sequence, between refusal of asylum and the grant of leave. The central issue was whether pre-existing student leave could satisfy section 83 after a later refusal of asylum.

1. Appeal dismissed. Immigration Judge Brenells made no error of law in holding that the appellant had no right of appeal under section 83 of the Nationality, Immigration and Asylum Act 2002.

2. Section 83 must be read within the detailed statutory appeal code. It gives an "upgrade" appeal against the rejection of an asylum claim where the claimant has subsequently been granted qualifying leave. The statutory context, including the absence of a bar on removal and of certification provisions for section 83 appeals, supports that construction.

3. The Upper Tribunal accepted that R (S, D & W) v First-tier Tribunal (IAC and SSHD) and SSHD v AS (Somalia) establish that no causal nexus is required between the refusal of asylum and a later grant of leave. That proposition does not mean that the order of events is irrelevant. Those decisions proceeded on facts in which the asylum claim had been rejected before leave exceeding one year was granted.

4. R (Omondi) v SSHD remained good law on the relevant point. It required the grant of qualifying leave to follow the refusal of asylum. Neither the High Court nor the Court of Appeal had disapproved or overruled that requirement. Some of Omondi's additional reasons required reconsideration in light of the Court of Appeal's treatment of the relationship between sections 82 and 83, but that did not affect its conclusion on sequence.

5. The appellant's leave was granted before she claimed asylum. Since the later refusal was not followed by a qualifying grant of leave, section 83 did not apply. She remained subject to the leave granted in her capacity as a student.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld Immigration Judge Brenells' conclusion that there was no right of appeal under section 83.
• First-tier Tribunal: Immigration Judge Brenells held, following a hearing on 9 February 2012, that the refusal of the asylum claim carried no right of appeal.