R (on the application of Omondi) v Secretary of State for the Home Department [2009] EWHC 827 (Admin), [2009] All ER (D) 155 (Apr)
R (on the application of Omondi) v Secretary of State for the Home Department [2009] EWHC 827 (Admin), [2009] All ER (D) 155 (Apr)
Queen’s Bench Division, Administrative Court (London), Mark Ockelton sitting as a deputy judge of the High Court, 23 April 2009
The right of appeal under s 83 of the Nationality, Immigration and Asylum Act
2002 (NIAA 2002) arises only in circumstances where an individual has made an asylum claim which has been refused, and has been granted periods of leave exceeding one year in aggregate since the decision to refuse asylum.
Richard Drabble QC and Gordon Lee (instructed by Duncan Lewis & Co) for the claimant. Neil Sheldon (instructed by the Treasury Solicitor) for the secretary of state.
In October 2002, the claimant, a Kenyan national, came to the UK. He was granted leave to enter as a student for three years. Before the end of that leave, he applied for further leave. His application was refused in January 2006.
In March 2008, he was arrested as an overstayer. His subsequent claim for asylum was rejected and, at the same time, certified under NIAA 2002, s 94(2). Thereafter, the secretary of state decided that the claimant should be removed from the UK. The claimant applied for judicial review of that decision.
The issue was whether the claimant had a right to appeal against the decision to remove him from the UK..
Mark Ockelton QC:
Section 83 provided: “ (1) This section applies where a person has made an asylum claim and - (a) his claim has been rejected by the Secretary of State, but (b) he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate). (2) The person may appeal [to the Tribunal] against the rejection of his asylum claim.”
The short question raised in the proceedings was whether s 83 applied to a person who had had leave, but only in the past, unrelated to his asylum claim or its rejection.
Section 94 of NIAA 2002 so far as relevant provided: “94(1) This section applies to an appeal under s.82(1) where the appellant has made an asylum claim or human rights claim (or both). (2) A person may not bring an appeal to which this section applies in reliance on s.92(4)(a) if the Secretary of State certifies that the claim or claims mentioned in sub-section (1) is or are clearly unfounded.”
Where there had been certification under that sub-section, therefore, the position was that the person affected, reading the statutory provisions, would find that an in-country right of appeal was potentially granted by s 82, apparently removed by s 92(1), granted by s 92(4)(a), but removed by s 94(2). But none of those provisions applied to an appeal under s 83. The right of appeal granted by s 83 was not subject to any prohibition on its exercise from within the UK
Complex provisions
The claimant submitted that the complex statutory provisions relating to appeals under s 82 did not apply to the claimant, because he met the requirements of s 83. He submitted that s 83 had a clear and obvious meaning: it did not carry any suggestion that the grant of leave to which reference was made in subsection (1)(b) had to be related in some way to the claim for asylum.
He suggested that there was an obvious utility in providing that a person who had been in the UK for a period of a year or more should receive special consideration and advantages in an asylum appeal. That was why there was no restriction on incountry rights of appeal under s 83.
The defendant submitted that to read s 83 in the way the claimant suggested would be to introduce an irrational element into an otherwise reasonably coherent scheme. He submitted that the legislator clearly intended that in-country rights of appeal should be available only in specified circumstances. There should be no in-country right of appeal against a proper rejection of a wholly unfounded asylum claim. The period of leave referred to in s 83(1)(b) had to be a period of leave granted in response to the asylum claim.
His lordship’s reasoning
His lordship held that reading s 83 in the way contended for by the claimant would produce an absurd and illogical result. It would be entirely illogical that a person who had made an unfounded asylum claim should have an in country right of appeal arising solely from the irrelevant happenstance of whether he had had an unrelated grant of leave in the past. His lordship’s reasoning was, inter alia, that the only rational basis upon which the claimant had been able to suggest someone in his position should have the right of appeal was that having been in the UK in the past should be a cause for him being given special consideration in the appeals process. His lordship could not accept that argument.
The right of appeal under s 83 was on Refugee Convention grounds only. If the purpose of the provision were to recognise the circumstances of a person who had been in the United Kingdom for some time, it would be absurd to exclude a human rights ground, as s 84(3) did. Secondly, the provisions of s 78 made it clear that launching an appeal under s 82 prevented removal. That benefit did not extend to appeals under s 83.
His lordship concluded that the right of appeal under s 83 arose only in circumstances where the appellant had made an asylum claim which had been refused, and had been granted periods of leave exceeding one year in aggregate since the decision to refuse asylum.
The claimant had no right of appeal under s 83, because his period of leave long pre-dated his asylum claim. His application for judicial review would therefore be dismissed.
