Secretary of State for the Home Department v MK (Tunisia) [2011] EWCA Civ 333

[2011] EWCA Civ 333

Case No C4/2010/2146

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN’S BENCH DIVISION,

ADMINISTRATIVE COURT

MR JUSTICE COLLINS

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 25/03/2011

Before

LORD JUSTICE PILL

LORD JUSTICE RIX

LORD JUSTICE LLOYD

Between

Secretary of State for the Home DepartmentAppellant

MK (Tunisia)Respondent

Tim Eicke (instructed by the Treasury Solicitor) for Appellant

Raza Husain QC and Amanda Weston (instructed by Birnberg Pierce & Partners) for Respondent

Hearing Hearing date : 18 February 2011

Judgment

[1]This is an appeal by the Secretary of State for the Home Department (“the Secretary of State”) against a decision of Collins J on 26 August 2010 declaring that MK (“the respondent”) has an in country right of appeal against the decision of the Secretary of State to cancel his leave to remain and is also entitled to return to the United Kingdom to exercise that right. It was further ordered that the respondent’s indefinite leave to enter should not lapse by operation of article 13(4)(a) of the Immigration (Leave to Enter and Remain) Order 2000 (“the 2000 Order”) pending final determination of the claim or further order. The judge granted permission to appeal to this court.

The facts

[2]MK is a Tunisian national who arrived in the United Kingdom in 2001 and claimed asylum. On 2 October 2001 he was granted refugee status and indefinite leave to enter the United Kingdom. He was issued with a travel document under

article 8 of the Convention

Relating to the Status of Refugees (1951), and lived with his wife and daughters in Manchester between 2001 and 2007.

[3]On 6 November 2007, MK was arrested pursuant to a European Arrest Warrant issued by an Italian court. Extradition was ordered under section 21(3) of the Extradition Act 2003 on 20 May 2008 and an appeal to the High Court against the order of the District Judge was dismissed. A further application by MK to the High Court was refused and on 1 November 2008 he was extradited to Italy.

[4]By a letter of 14 April 2010, the Secretary of State stated that she was considering revoking the respondent’s refugee status on the ground that “there are reasonable grounds for regarding him as a danger to the security of the United Kingdom” (rule 339A of the Immigration Rules). It was stated:

“The UK Border Agency [“The Agency”] has reason to believe that you have been involved in extremist radicalisation and facilitation. Your presence in the UK would therefore be considered not conducive to the public good for reasons of national security.”

Representations were made to the Agency on the respondent’s behalf.

[5]On 8 July 2010, the respondent was acquitted in Italy of all terror-related charges. He was convicted of a charge of falsely procuring a document but, because of time spent on remand, the resulting sentence had been served. He was re-detained in an Immigration Detention Centre and expulsion orders were made.

[6]On the following day, and following representations made on the respondent’s behalf, the European Court of Human Rights gave an indication to the Government of Italy, under rule 39 of the Rules of Court, that the respondent (and others) should not be deported to Tunisia until 21 July. That interim measure was subsequently prolonged indefinitely. When the respondent’s appeal against the District Judge’s order in relation to extradition was dismissed in 2008 the Court found that the Italian authorities could be relied on not to deport the respondent to Tunisia.

[7]The respondent’s subsequent movements need not be described comprehensively for present purposes. On 7 August 2010, his release was ordered by the Italian court and he was issued with a document requiring him to leave Italy within 5 days. He entered Switzerland by train and, on 25 August 2010, was arrested at Zurich airport at a check in desk for a flight to Dublin. He was told he would be sent to the United Kingdom and was arrested on arrival at London City Airport early on 27 August, that is a day after Collins J had made his order.

[8]In the afternoon of 27 August, the respondent was told that he was being sent back to Switzerland and believes he was booked on a flight to Zurich. Collins J granted an injunction prohibiting the Secretary of State from removing the respondent from the United Kingdom pending final determination of his claim for judicial review or further order. An application to discharge that injunction was subsequently refused.

[9]In the meantime, by letter dated 16 July 2010 received by the respondent’s solicitor a week later, the Agency cancelled the respondent’s indefinite leave to enter, exercising powers under article 13(7) of the 2000 Order. It is accepted that, prior to the cancellation, the leave to enter was extant. The grounds stated in the minded to revoke letter were substantially repeated. The respondent was told:

“You have the right to appeal against the decision to cancel your indefinite leave to enter in the United Kingdom under section 82(1) of the Nationality, Immigration and Asylum Act 2002 [“the 2002 Act”]. For the purpose of the appeal the decision to cancel leave is treated as a decision under section 82(2)(e) of the 2002 Act. Any appeal against this decision may only be brought from outside the UK.”

[10]By letter of 28 July 2010, it was stated that the indefinite leave to enter had been cancelled under article 13(7)(a) of the 2000 Order, thereby correcting an earlier reference to sub-paragraph (b). The power to cancel the leave to enter of a person outside the United Kingdom may be exercised by an Immigration Officer. It was stated:

“There is no statutory right of appeal against the Home Secretary’s decision to exclude [the respondent] from the United Kingdom, but he is entitled to an out country appeal against the decision to cancel his ILE.”

[11]This is not an appeal against the underlying decision to cancel leave to enter. The issue is whether the respondent is entitled to an in country appeal against the decision to cancel his indefinite leave to enter and to enter for the purpose of exercising it. The advantages of bringing an appeal from within the jurisdiction are set out in a statement by the respondent’s solicitor and the Secretary of State has not challenged the reality of these advantages.

[12]Proceedings for judicial review were issued on 28 July 2010 and on 3 August 2010 permission to apply on the ground relating to an in country right of appeal was granted. The application on other grounds was stayed by consent on the basis that the Secretary of State will issue a fresh decision letter cancelling leave to enter, if so minded, within 7 days of the final determination of the present proceedings. That would enable the respondent to appeal against the decision, without being out of time.

The statutory scheme

[13]The issue is one of statutory construction. For the Secretary of State, Mr Eicke accepts that, by virtue of section 82 of the 2002 Act, the respondent has a right of appeal against the cancellation of the right to enter. Section 82 provides, in so far as is material:

“(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal. (2) In this Part ‘immigration decision’ means— (e) variation of a person’s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain, . . .”

Mr Eicke accepts that the “cancellation” directed in the Secretary of State’s letters of July 2010 is a “variation” of the right to enter within the meaning of section 82(2)(e) of the 2002 Act. It gives rise to a right of appeal under that paragraph. The letter of 28 July also stated:

“The Home Secretary has certified under section 97(3) of the Nationality, Asylum and Immigration Act 2002, the decision to cancel his ILE on the basis that it was taken wholly or partly in reliance on information which in her opinion should not be made public in the interest of national security. This means that should [the respondent] wish to appeal against the decision, the appeal will be heard by the Special Appeals Immigration Commission (SIAC).” (e) variation of a person’s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain, . . .”

[14]The issue turns primarily on the construction of section 3D of the Immigration Act 1971 (“the 1971 Act”) and section 92 of the 2002 Act. Section 3D of the 1971 Act as amended provides:

“(1) This section applies if a person's leave to enter or remain in the United Kingdom— (a) is varied with the result that he has no leave to enter or remain in the United Kingdom, or (b) is revoked. (2) The person's leave is extended by virtue of this section during any period when— (a) an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 could be brought, while the person is in the United Kingdom, against the variation or revocation (ignoring any possibility of an appeal out of time with permission), or (b) an appeal under that section against the variation or revocation, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act). (3) A person’s leave as extended by virtue of this section shall lapse if he leaves the United Kingdom.”

[15]Section 92 of the 2002 Act, as amended, provides at sub-sections (1) and (2):

“(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.

(j) ”

[16]The subsequent sub-sections of section 92 specify other appeals to which this section also applies:

“(3) This section also applies to an appeal against refusal of leave to enter the United Kingdom if— (a) at the time of the refusal the appellant is in the United Kingdom, and (b) on his arrival in the United Kingdom the appellant had entry clearance.”

Sub-sections (3A), (3B) and (3C) qualify the application of section 92(3) in a manner not material for present purposes.

[17]Section 92(4) provides, in so far as is material:

“This section also applies to an appeal against an immigration decision if the appellant— (a) has made an asylum claim, or a human rights claim, while in the United Kingdom, or (b) . . .” (a) has made an asylum claim, or a human rights claim, while in the United Kingdom, or (b) . . .”

[18]Regulation 8 of the Special Immigration Appeals Commission (Procedure) Rules 2003 sets out the procedure to be followed on appeals to SIAC, and specifies time limits. Under regulation 8(1)(b), where the applicant is not in detention, notice of appeal must be given not later than 10 days after the appellant is served with notice of the decision, if the appellant is in the United Kingdom, and not later than 28 days if he is outside the United Kingdom. That regulates the length of the extension of leave to enter provided by section 3D(2) of the 1971 Act.

Judgment of Collins J

[19]Having stated that the starting point in relation to the right of appeal is section 82 of the 2002 Act, Collins J stated, at paragraph 19:

“The question then is what is the effect of section 3D(2)(a) of the 1971 Act, because that suspends the effect of a cancellation for a period during which an appeal could be brought while the person was in the United Kingdom. The time limits for appealing differ depending on whether it is an out of country or an in country appeal. If it is an out of country appeal the time for notice is 28 days. If it is an in country appeal it is 10 days, and thus the effect of sub-section (2)(a) is, in my judgment, to provide a 10 day period during which the decision to cancel is to be regarded as suspended. That will enable someone who does have, such as this appellant, indefinite leave to enter, to enter and pursue his appeal in country. When one thinks about it that is surely fair. Miss Weston [for the claimant] gave me the example in her skeleton of the possibility of someone going on a short holiday, leaving the country as one is entitled to do for a short period, and the decision to cancel being made when he is outside the United Kingdom. If that could have the effect of preventing what would otherwise be an in country appeal, it is capable of being unfair. While one would hope that a power would not be exercised in such effect, it certainly gives the opportunity to the authorities to avoid an in country appeal in circumstances where that would be unfair to the individual concerned. It seems to me the obvious and natural construction of 3D(2)(a) is the suspension of the effect of the cancellation, or rather the extension by virtue of 3D(2) of the leave to enter, does extend for that relatively short period to enable the individual to make arrangements, if he so wishes, to return to the country in order to pursue his right of appeal.”

Collins J upheld the claim for judicial review and stated that if the appellant “comes to this country within the next 10 days he must be allowed to enter”.

Submissions

[20]Mr Eicke submits that the starting point for appeals under section 82 of the 2002 Act must be that they can only be brought out of country unless brought within the exceptions in section 92. Section 92 as a whole should be read on the assumption that there is an in country right of appeal only if, at the time of notification of the decision, the appellant is within the United Kingdom. Section 92(2) assumes presence in the United Kingdom at the time of such notification, he submits, and section 92 should be read subject to that underlying understanding.

[21]To support the existence of that underlying understanding, Mr Eicke submits that the “kinds of appeal” specified in section 82(2) mainly apply to people in the United Kingdom. Section 82(2)(a) and (b), on the other hand, that is decisions refusing leave to enter and refusal of entry clearance where the applicants are obviously outside the United Kingdom, do not attract an in country right of appeal. Mr Eicke accepts, however, that some of the other kinds of appeal specified in section 82(2) will not necessarily involve an applicant already within the United Kingdom and others not specified in section 82(2) do not necessarily involve a person without.

[22]Mr Eicke submits that the presence of the word “while” in section 92(1) of the 2002 Act and section 3D of the 1971 Act denotes a period of time in the United Kingdom and that period must be construed as including the date of decision. The suspensive provision is intended to apply only if the person concerned is in the United Kingdom at the time of decision, the word ‘while’ otherwise being unnecessary. That construction is supported, he submits, by the specific provision in section 3D(3) of the 1971 Act that the leave as extended shall lapse if the person leaves the United Kingdom. That assumes he is already in the United Kingdom. It is also supported, he submits, by the curtailment of the time limit for appealing to 10 days in the case of a person within the United Kingdom when the decision is notified. If a right of return had been contemplated, the period would have been longer.

[23]The right to direct the respondent’s exclusion, on grounds such as the present, ought not to be defeated by a requirement that he be permitted to enter, it is submitted. The intention of the suspensive power in section 3D of the 1971 Act is to protect those already in the United Kingdom when the decision is made from committing an offence by staying while their appeal is considered. The intention is not to permit admission once a variation has been made.

[24]The Agency’s Policy, Guidance and Casework Instruction on the Cancellation, Cessation and Revocation of Refugee Status (18 December 2008) under the heading “Cancellation of Refugee Status” and “Cancellation when the Refugee is Abroad”, refers to immigration rule 323 and provides, at paragraph 3.4.2:

“However, the decision to curtail [in rule 323] does not take effect while an appeal could be brought or is pending. UKBA would therefore be unable to prevent someone returning to the UK whilst their appeal was pending or until the time limit for appealing had passed as they would have continuing leave.”

In a somewhat elaborate argument, which appeared to depend on the difference between the word “curtail” in the rule and the word “cancel” in the guidance, and on the application of the guidance to refugees, Mr Eicke sought to argue that the guidance did not apply in the present situation. If it did, he submitted, the guidance was wrong. I do not propose to rely on the guidance when construing the statutes and do not find it necessary to consider Mr Eicke’s submissions on this point in any more detail.

[25]In his submissions supporting the conclusion of Collins J, and in order to defeat the submission that a right to exclude should be read in by way of underlying understanding or necessary implication, Mr Husain QC relies on the statement of Lord Hobhouse of Woodborough in R (Morgan Grenfell Ltd) v Special Commissioner of Income Tax & Another

[2002] UKHL 21

, at paragraph 45. The Revenue had argued that the statute abrogated a common law right notwithstanding the absence of express words doing so. Lord Hobhouse stated:

“A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.” (Emphasis in original)

The express language permits no such implication, submits Mr Husain.

Conclusions

[26]Once it is accepted that the cancellation of the right to enter is a “variation” of a person’s leave to enter within the meaning of section 82(2)(e) of the 2002 Act, section 82, on its face, confers a right of appeal to the Tribunal. Sections 92(1) and (2) of the 2002 Act provide that such an appeal may be made while the appellant is in the United Kingdom. An appeal against an immigration decision of a kind specified in section 82(2)(e) is covered by the word “unless” in section 92(1) and an in country appeal is not excluded by the opening words of section 92(1).

[27]Equally, on its face, section 3D of the 1971 Act extends the respondent’s leave to enter during any period when an appeal under section 82 of the 2002 Act could be brought, while he is in the United Kingdom. Notwithstanding its purported cancellation, the right to enter continues within the limited time specified in regulation 8(1)(b) of the 2000 Regulations during which he may appeal. The combined effect of the sections cited is that within that specified period the appellant has a right to enter and under section 3D of the 1971 Act can exercise his right of appeal under section 92 of the 2002 Act on entry.

[28]That construction is not, in my judgment, defeated by the points on which Mr Eicke relies:(a) While I see the force of the submission that the Secretary of State should be permitted to exclude a person whose entry is perceived not to be conducive to the public good for reasons of national security, the statutory wording does not provide a power to exclude in the limited circumstances contemplated. I can find no basis for an underlying understanding that the provisions should be read as the Secretary of State requires.

(b) The presence of the words “while the person is in the United Kingdom” in section 3D of the 1971 Act do not require the person to be in the United Kingdom when the Secretary of State takes her decision to vary the right to enter. The duration of the extension under section 3D(2) is governed by the period when the “appeal” under section 82(1) of the 2002 Act can be brought and not by the date of the Secretary of State’s decision to vary. I cannot read the sub-section as requiring the person exercising the right of appeal to be in the United Kingdom at the time of that decision. That wording is mirrored in section 92 of the 2002 Act by which presence in the United Kingdom is related to the “appeal” and not to the “decision” which gave rise to the appeal.

(c) Reliance on section 3D(3) of the 1971 Act is misplaced. The loss of the right of appeal if a person leaves the United Kingdom during the period of extension is unsurprising. It throws no light on the right of a person already outside the United Kingdom when the Secretary of State takes her decision.

(d) The very limited period of 10 days from receipt of the variation, within which the person must exercise his in country right of appeal is not, in my judgment, inconsistent with the respondent’s case. This is a context in which the in country right of appeal, a valuable right, needs to be exercised promptly whether or not the person is within the United Kingdom when notified of the decision.

[29]I agree with the approach of Collins J. The example he gives, the person out of the United Kingdom for a short time when the decision is taken, also illustrates the potential injustice of a contrary view.

[30]I would dismiss this appeal.

[31]I agree with both judgments.

[32]I also agree that the appeal should be dismissed for the reasons given by Pill LJ.

[33]Mr Eicke’s argument that section 92 of the 2002 Act implicitly requires the appellant to be present in the UK at the time of the relevant decision, if he is to be entitled to mount an in country appeal, is not only not justified by anything in the words of section 92(1) or (2). It is also belied by the specific references to presence in the UK at the time of the relevant decision in sub-sections (3)(a) and (3D)(a).

[34]Like Pill LJ it seems to me that the wording of section 3D(2)(a) of the 1971 Act provides no support for Mr Eicke’s argument. Paragraph (a) of that sub-section deals with the period before an appeal is brought, during which an appeal could be brought, being an in country appeal. It looks forward to the possibility of such an appeal being brought. Paragraph (b) deals with the next stage, once an in country appeal has been brought. For the latter stage, continuous presence in the UK is a prerequisite, because of section 3D(3) and also section 104(4) of the 2002 Act. For the former stage, I agree with Pill LJ that presence in the UK is not necessary, and that the provision gives a person in the position of MK the right to re-enter during the short period allowed for bringing an appeal.