BLEDAR ZEQAJ v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2002] EWCA Civ 1919

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
[2002] EWCA Civ 1919Case No C/2002/0828Venue Royal Courts of Justice, Strand, London, WC2
Between
BLEDAR ZEQAJRespondentSECRETARY OF STATE FOR THE HOME DEPARTMENTAppellant
Before
Lord Justice ThorpeLord Justice LathamMr Justice Lawrence CollinsMISS L GIOVANNETTI (instructed by the Treasury Solicitor) appeared on behalf of the Appellant.MISS C RECORD (instructed by Messrs Waterfords, London, E13) appeared on behalf of the RespondentDate 10 December 2002

LORD JUSTICE LATHAM:

The

[1]respondent is an ethnic Albanian from Kosovo. He arrived in the United Kingdom on 12th November 1999 and claimed asylum. He was an illegal entrant. His application was refused on 23rd October 2000 on the basis that he had no reason by then to fear persecution by Serbs, nor had he established any real risk of persecution or ill-treatment by any ethnic Albanian groups. Removal directions directing his removal to Albania were issued on 8th November 2000.[2]Those directions were clearly given in error. The power to give such directions is contained in paragraph 8(1) of Schedule 2 to the Immigration Act 1971. Paragraph 8(1)(c) provides that such directions should specify as the country to which he is to be removed:
"(i) a country or territory of which he is a national or citizen; (ii) a country or territory in which he has obtained a passport or other document of identity; or (iii) a country or territory in which he embarked for the United Kingdom; or (iv) a country or territory to which there is reason to believe that he will be admitted."
[3]The respondent had no relevant connection with Albania and there was no reason to believe that he would be admitted to Albania. The only country to which he could be removed was the Federal Republic of Yugoslavia. There was accordingly no power to give directions in the form in which they were in fact given.[4]There were two avenues of appeal for the respondent under sections 66 and 69 of the Immigration and Asylum Act 1999. Section 66 provides as follows:
"(1) This section applies if directions are given for a person's removal from the United Kingdom - (a) on the ground that he is an illegal entrant; (b) under section 10; or (c) under special powers conferred by Schedule 2 to the 1971 Act in relation to members of the crew of a ship or aircraft or persons coming to the United Kingdom to join a ship or aircraft as a member of the crew. (2) That person may appeal to an adjudicator against the directions on the ground that on the facts of his case there was in law no power to give them on the ground on which they were given."
Section 69, which relates to claims for asylum, provides by subsection (5):
"If directions are given as mentioned in section 66(1) for the removal of a person from the United Kingdom, he may appeal to an adjudicator on the ground that his removal in pursuance of the directions would be contrary to the Convention."
The respondent appealed under section 69(5). The significance of the error in identifying Albania in the removal directions does not appear to have been appreciated at any time by anyone acting on the respondent's behalf. The appeal was based fairly and squarely on the argument that to return him would amount to a breach of the Geneva Convention in relation to asylum seekers and that he had a well-founded fear of persecution for Convention reasons or, alternatively, that it would be a breach of his rights under the European Convention on Human Rights.[5]It was realised, however, by the appellant's representative that the mistake had been made. For some reason the opportunity was not taken at that stage to withdraw the original directions and replace them with an appropriate direction. The respondent was not represented at the hearing of the appeal and was in no position to understand the difficulty that had arisen or to put forward any argument as to what the appropriate result should be. In his decision the adjudicator, having identified the problem, said:
"6. Therefore, these removal directions are not in accordance with the powers of the Immigration Officer who gave them, and are consequently invalid. 7. This appeal was made under the provisions of s.69(5) of the Immigration and Asylum Act 1999 which only applies when directions have been given for an appellant's removal as, inter alia, an illegal entrant. In this case, there are no such valid removal directions, and therefore there cannot be a valid appeal. 8. The appeal is dismissed."
[6]The respondent appealed to the Immigration Appeal Tribunal. His appeal was heard by a tribunal presided over by the President, Collins J. The tribunal noted that what had happened was not, regrettably, a unique occurrence. It concluded that section 69(5) could not avail the respondent because there was no evidence that to return him to Albania would breach the European Convention. Of its own motion, however, it suggested to the respondent's representative that the appeal should be amended to include an appeal under section 66(2) of the Act. The appellant's representative submitted that that could not assist the respondent as the appeal was restricted to a consideration of whether or not the grounds for giving the direction had been made out and there was no doubt that the respondent was an illegal entrant. The tribunal rejected that argument in the following terms:
"10. In our judgment, that is too restrictive a construction of s.66(2). It enables an appeal to be brought on any ground which is appropriate to an individual case that there was on the facts in law no power to give the directions. So here, the appropriate ground is that there is on the facts of this case no power to direct removal to Albania. It does no violence to the language to s.66(2) to construe it in this way, particularly as any appeal, as the use of the words 'on the facts of the case' recognises, will depend on its particular facts and those facts may disclose a particular legal impediment to the directions which have been given. Albania was specified because the appellant was an illegal entrant and it was lawful to remove him to Albania. If either of those matters was shown to be wrong, there would be in law no power to give the directions on the grounds on which they were given. We accordingly suggested to Miss Record that she might seek leave to amend the grounds of appeal to rely on s.66(2). Mr Deller very properly did not seek to say that the Secretary of State was prejudiced by this amendment (it was, after all, his officials' incompetence which had created the difficulty) and so did not resist the application made by Miss Record, prompted by our suggestion. We gave leave accordingly. 11. It is clear that there is in law no power to remove this appellant to Albania since it is accepted that an error was made and the Secretary of State cannot establish that on the facts of this case Albania falls within paragraph 8(1)(c) of Schedule 2 to the Immigration Act 1971. That being so, the appeal under s.66(2) must be allowed. That means that the directions are quashed and so the appeal under s.69(5) disappears. If fresh removal directions are made, fresh rights of appeal will arise."
[7]The appellant appeals to this court against that decision with leave of the Immigration Appeal Tribunal.[8]Before us, Miss Giovannetti repeats the submissions made to the Immigration Appeal Tribunal. She submits that the final phrase in section 66(2), namely "there was in law no power to give them on the ground on which they were given" restricts the appeal to a consideration of whether or not any of the three preconditions to the giving of directions set out in section 66(1) exists. Otherwise, she submits, those words are surplusage. She further submits that the tribunal's construction of section 66(2) will open the door to argument in cases where a particular country which is not the country of nationality has been deliberately chosen, which would not appear to have been Parliament's intention.[9]Miss Record, on behalf of the respondent, essentially supports the reasoning of the tribunal. She submits that the word "ground" refers generally to the basis upon which the direction has been given and is sufficiently wide to encompass consideration of both the matters set out in section 66(1) of the 1999 Act and the matters in paragraph 8(1)(c) of Schedule 2 to the 1971 Act.[10]It is, to use the words of the tribunal, regrettable that this decision should have taken up the time of the adjudicator, the tribunal and this court. The error that was made had clearly been identified before the hearing before the adjudicator and could and should have been put right at that stage, thereby rendering these proceedings otiose. As a matter of fact, fresh directions were given to remove the respondent to the Federal Republic of Yugoslavia on 20th September 2001, but, for some reason or another, that was not brought to the attention of the Immigration Appeal Tribunal which, from the terms of its judgment, believed that the error had still not by then been corrected. In one sense, therefore, significant costs have been unfortunately wasted on the facts of this particular case.[11]Miss Giovannetti, on behalf of the appellant, however, submits that there is an issue of principle which needs to be resolved which goes beyond the boundaries of this case and beyond the boundaries of facts of cases similar to this, where an administrative error has been made. She has referred us to a number of occasions upon which the problem has arisen where the asylum seeker has falsely identified as his a country in which it is known that persecution occurs and from which genuine asylum seekers have arrived in this country. In such circumstances, the appellant is faced with the difficulty of identifying where in truth the asylum seeker has come from in order to be able to set out an appropriate destination under paragraph 8 of Schedule 2 to the 1971 Act.[12]We have been shown a number of cases in which such a problem has arisen; in particular, a case which was decided by the Administrative Court on 28th November 2002, R on the application of Tu v Secretary of State for the Home Department, a decision of Cooke J. In that case a lady of Chinese origin had arrived in this country claiming asylum, on the basis that she was a national of Indonesia and had been subjected to discrimination by reason of her Chinese ethnicity. Examination of her claim to asylum disclosed significant discrepancies which threw serious doubt on her assertion to have come from Indonesia. However, there was no other information about her origin, apart from her assertion as to having come from Indonesia.[13]In that case, amongst other issues the applicant sought judicial review of the Secretary of State's decision to make removal directions to Indonesia on the ground that the Secretary of State having been unconvinced as to her being in truth of Indonesia origin, could not properly identify Indonesia as the destination in the directions. The judge concluded that, whatever may have been the state of mind of the Secretary of State, he was not prepared to quash the removal directions that had been given because it was essentially an abuse of the court's process for this applicant to seek, on the one hand, to assert her Indonesian origin for the purposes of her asylum application, but then to challenge the Secretary of State in relation to removal directions when he accepted, on its face, that assertion for the purposes of those directions. Accordingly, in the exercise of his discretion he declined to grant judicial review of the directions in that case.[14]Miss Giovannetti submits that that was the proper course to be taken in any case in which this type of issue arises, it not being a situation in which there is in truth any right of appeal for the reasons that she has submitted.[15]I return to the question whether or not there is a right of appeal to the appellate authorities under section 66 on the basis that the destination identified by the appellant is one which can be challenged. The wording of section 66(1) and (2) seems to me to preclude any other interpretation of the phrase "on the ground on which they were given" than that proposed by Miss Giovannetti. With respect to the Immigration Appeal Tribunal, I consider that, to construe the subsection as he did, does indeed do violence to the language. The word "ground" refers back clearly, in my view, to the three matters set out in subsection (1), and to suggest that in some way the destination requirement provides a basis for saying that there was some other ground on which the directions were given is not one which can properly be shoehorned into the section. One can readily understand, particularly on the facts before the tribunal, why the tribunal would have wished to achieve that result. But in my judgment, the wording of the subsection with which we are concerned is clear. Section 66 provides the appropriate boundary for the ambit of the appeal and is not intended to bring in any issues relating to the applicability of paragraph 8 of Schedule 2 to the 1971 Act.[16]Miss Giovannetti did seek to obtain further support from the provisions of section 67 and section 68 of the 1999 Act, which provides for situations where a person has been entitled to object to a destination requirement under section 59 of the Act. But it seems to me that there is no proper analogy to be made between the situation in sections 67 and 68 and the position in section 66, which would entitle those sections to determine the way in which section 66 is to be interpreted. Sections 67 and 68 are dealing with situations very limited in scope, where a person has simply been refused entry to this country and has appealed against a decision that he requires leave on the one hand, or was refused leave when he held a current entry clearance, or was a person named in the current work permit on the other. In other words, it relates to people who, prima facie, may have considered that they had a right to enter this country. In those circumstances, it would not necessarily be appropriate for them to be removed back to their original point of origin under paragraph 8 of Schedule 2 to the Act but should be entitled to make their own choice as to where else they could be sent to. The rights are given to those who have a right to object to a destination, and the words used are not apt to deal with the question of those who say that there was in law no power to give the particular directions. It follows that I do not derive assistance from those two sections.[17]Nonetheless, the basic submission of Miss Giovannetti is one that is unanswerable. I would accordingly allow the appeal.

MR JUSTICE COLLINS: I agree.

LORD JUSTICE THORPE: I also agree.

ORDER

Appeal allowed.

Cited in 5 later judgments