SR (Algeria) v Secretary of State for the Home Department

For the statutory abandonment rule in section 92(8) of the Nationality, Immigration and Asylum Act 2002, an appellant leaves the United Kingdom only when departing voluntarily. Removal by the Secretary of State against the appellant’s will does not trigger abandonment. This construction reflects ordinary language, the statutory context and purpose, and rule-of-law principles protecting access to justice. The same interpretation applies to the predecessor provision in section 104(4)(b).

The applicant, an Algerian national, appealed against refusal of her asylum and human-rights claims. The First-tier Tribunal dismissed her appeal, and the Upper Tribunal dismissed her further appeal and refused permission to appeal. While detained, she issued an effective notice of appeal to the Court of Appeal and sought an extension of time and permission to appeal.

She was removed to Algeria before those applications were considered. The preliminary issue was whether her appeal had been abandoned under section 92(8) of the Nationality, Immigration and Asylum Act 2002 because she had left the United Kingdom before the appeal was finally determined.

Disposition. The Court of Appeal held that section 92(8) of the Nationality, Immigration and Asylum Act 2002 did not apply. The applicant’s appeal remained on foot. Her applications for an extension of time and permission to appeal were to be considered on the papers in the usual way.

1. The word leaves in section 92(8) means voluntarily leaves the United Kingdom. It does not include removal by the Secretary of State against the appellant’s will.
2. The construction was supported by ordinary usage. It was also supported by the linguistic structure of the provision: the appellant is the subject of both bringing the appeal and leaving the United Kingdom, and both acts therefore carry the connotation of voluntary agency. The word “but” reinforces that reading.
3. Rule-of-law considerations supported the narrower construction. Where the state is itself the subject of ongoing litigation, it should not be able to defeat the litigation by physically removing the opposing party. Parliament was taken to legislate consistently with access to justice, with reference to R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36; [2004] 1 AC 604.
4. The narrower reading also accorded with the object and purpose of the provision, which was to permit procedural disposal where an appellant had voluntarily departed. Earlier observations in MM (Ghana) v Secretary of State for the Home Department [2012] EWCA Civ 827 and Shirazi v Secretary of State for the Home Department [2003] EWCA Civ 1562; [2004] INLR 92 were consistent with that interpretation.
5. The same narrow meaning applied to section 104(4)(b), the predecessor provision. The wider interpretation adopted in MA (Afghanistan) [2004] UKIAT 00216 was not correct.

• Court of Appeal (Civil Division). The court held that the applicant’s removal did not abandon her appeal under section 92(8) of the Nationality, Immigration and Asylum Act 2002. The appeal remained on foot: [2015] EWCA Civ 1375.
• Upper Tribunal (Immigration and Asylum Chamber). The applicant’s appeal was dismissed on 12 March 2015. Permission to appeal was refused on 24 March 2015.
• First-tier Tribunal. The applicant’s appeal against the Secretary of State’s decision was dismissed on all grounds on 25 February 2015.