MS v Secretary of State for the Home Department

Under section 83 of the Nationality, Immigration and Asylum Act 2002, refusal of an asylum claim attracts an additional right of appeal only where the claimant has leave to remain exceeding 12 months, calculated from the refusal or, if later, the grant of leave. It is immaterial whether the leave began before or after the refusal and whether it results from one or several grants.

The provision serves claimants who otherwise lack, and will not soon obtain, a section 82 appeal in which refugee status can be determined. Section 83(1)(b) is a condition for the right to arise, rather than a restriction upon a general right of appeal. Historic or substantially spent leave does not satisfy that condition.

The appellant, a Ugandan citizen, held student leave until 30 April 2012. Before its expiry, he sought further leave on the basis that he was a refugee. The Secretary of State rejected the asylum claim and refused to vary his leave, but left approximately 11 weeks of existing leave uncurtailed.

The First-tier Tribunal rejected his refugee claim on its merits without considering jurisdiction. The Upper Tribunal subsequently held that no right of appeal had existed. The Court of Appeal reached the same conclusion in [2014] EWCA Civ 50; [2014] 1 WLR 2766.

The issue before the Supreme Court was whether section 83 of the Nationality, Immigration and Asylum Act 2002 conferred an appeal where leave had been granted before the asylum refusal but less than 12 months of that leave remained.

1. Appeal dismissed unanimously. Lord Hughes delivered the judgment, with which Lord Neuberger, Lady Hale, Lord Wilson and Lord Toulson agreed. The appellant's remaining leave was substantially less than the period required by section 83 of the Nationality, Immigration and Asylum Act 2002. He therefore had no section 83 appeal.

2. Section 83(1)(b) is a condition for the right of appeal to arise. It is not a limitation upon a general right to appeal against every refusal of asylum. The subsection operates as a requirement for admission to the statutory appeal procedure and does not apply where no qualifying leave has been granted.

3. The purpose of section 83 is to provide an additional and targeted means of determining refugee status where no section 82 appeal exists and none is likely to arise within a reasonable time. Ordinarily, a removal decision or refusal bringing leave to an end produces a section 82 appeal in which refugee status can be raised through section 84(1)(g). Section 83 addresses claimants whose longer leave means that this ordinary route will not become available soon.

4. The qualifying leave must exceed 12 months calculated from the date of the asylum refusal or, if later, from the date of its grant. The leave may have commenced before or after the refusal and may result from one or several grants. Indefinite leave necessarily qualifies. Historic leave which has expired, or current leave with no more than 12 months remaining at the relevant date, does not qualify.

5. No logical nexus is required between the asylum refusal and the grant of leave. The relevant matters are the existence and remaining duration of leave, not the order in which the decisions were made. The Upper Tribunal had been wrong insofar as it relied on such a nexus.

6. The statutory structure supported that construction. Sections 78 and 94 do not extend to section 83 appeals because a claimant with qualifying leave remains lawfully present. The absence of section 96 controls did not justify a wider construction. The tribunal's approach to repeat asylum claims provided protection against unacceptable repetition.

7. The Court of Appeal and the Upper Tribunal decision in Win had construed section 83 too narrowly by requiring every grant of leave to be contemporaneous with or later than the asylum refusal. That approach excluded claimants whose circumstances fell within the statutory purpose. The Court of Appeal's result nevertheless stood because the appellant failed the correct test.

• United Kingdom Supreme Court: The appeal was dismissed unanimously. The Court adopted a different construction of section 83 from that used below, but held that the appellant still had no right of appeal: [2016] UKSC 33.
• Court of Appeal: The court held that no right of appeal existed and upheld the Upper Tribunal's conclusion: [2014] EWCA Civ 50; [2014] 1 WLR 2766.
• Upper Tribunal: The tribunal held that no right of appeal had ever existed and declined to examine the challenge to the First-tier Tribunal's merits decision.
• First-tier Tribunal: The tribunal rejected the refugee claim on its merits without the jurisdictional issue being raised.