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Secretary of State removes appellant then claims appeal abandoned…


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Well, this was a bit cheeky. A woman with an outstanding in-country immigration appeal was removed by the Home Office when she should not have been. The Home Office then argued that her appeal had to be treated as abandoned becuase of section 92(8) of the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014, which reads:

An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant … (b) leaves the United Kingdom.

This is the replacement for section 104 of the same Act, which was in similar terms and was in force for many years but is no more.

The Court of Appeal was unimpressed by the Home office’s approach and held that s.92(8) only applies to a voluntary departure from the UK, not an involuntary one. Sales LJ gives his reasons:

(i) To my mind, as a matter of ordinary usage, the word “leaves” has a strong connotation of an action being taken by an agent on a voluntary basis (e.g.”The protester did not leave the building but was removed from it by a security guard”);

(ii) In certain contexts it may be possible for the word to be used to refer to simple physical relocation of a person, however that relocation might be achieved, whether by deliberate action taken by the person as agent or by actions taken by others to relocate that person. However, there are no indications from the context here that such a wider meaning was intended. On the contrary, I think that both the linguistic context and the wider context and scheme of the legislation support the narrow meaning of “leaves” referred to above. As to the linguistic context, the word “leaves” appears in a composite opening phrase in which there is a single subject, the “appellant”, who does two things: she “brings an appeal” and she “leaves the United Kingdom”. The first clearly imports a notion of voluntary agency on the part of the appellant, since bringing an appeal is not something which is done to an appellant, and I see no reason to change the sense of the appellant being a voluntary agent doing something when one comes to the second verb in the same phrase. The use of the word “but” supports this view: the appellant has acted voluntarily to commence an appeal, but then acts voluntarily in another way so that it should be treated as abandoned.

(iii) Rule of law considerations in this context support the same conclusion. In a state governed by the rule of law, where the state itself is the subject of ongoing litigation, it would breach rule of law principles for the state to be able to defeat the litigation not by defending it on the merits before a court or tribunal, but by physically removing the opposing party so that she is prevented from bringing her claim before a court or tribunal, as appropriate, for determination according to law. Parliament is taken to legislate for a state governed by the rule of law with rights of access to justice: see, for example, R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36; [2004] 1 AC 604, paragraphs [26]-[28]. Accordingly, Parliament must be taken to have intended to use the word “leaves” in the narrow sense referred to above, where it is the voluntary act of the appellant which has the stated effect of the appeal being abandoned;

(iv) The narrower interpretation of the word “leaves” also accords with what I think is the manifest object and purpose of the provision, namely to make it possible to strike out an appeal with a minimum of procedural fuss when an appellant has voluntarily left the United Kingdom, since such action is generally inconsistent with the serious pursuit of an appeal launched on an in-country basis. To give the word “leaves” a wider meaning would involve going beyond that object and purpose without any good reason to do so;

(v) It is also significant that in those cases in which predecessor provisions, including section 104(4)(b) of the 2002 Act, set out above, have been considered in this court, the judges expressing views as to their meaning have been careful to say that the word “leaves” refers to the appellant “by his voluntary action” physically leaving the United Kingdom: see MM (Ghana) v Secretary of State for the Home Department [2012] EWCA Civ 827 at paragraph [32] and Shirazi v Secretary of State for the Home Department [2003] EWCA Civ 1562; [2004] INLR 92 at paragraph [13]. These observations have not been critical to the points in issue in those cases, which in fact concerned voluntary departures by an appellant. However, they are in line with my own view that the natural interpretation of the word “leaves” in this context is that it connotes voluntary action on the part of the appellant in question.

This interpretation is not that of the tribunal in the case of MA (Afghanistan) [2004] UKIAT 00216, in which the wider view was adopted. MA is therefore no longer to be followed.

Source: SR (Algeria) v Secretary of State for the Home Department [2015] EWCA Civ 1375 (17 December 2015)

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.