Badmus v. Secretary of State for the Home Department
| Publisher | United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority |
| Author | Immigration Appeal Tribunal |
| Publication Date | 11 November 1993 |
| Citation / Document Symbol | [1994] Imm AR 137 |
| Cite as | Badmus v. Secretary of State for the Home Department, [1994] Imm AR 137, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 11 November 1993, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b6a11c.html [accessed 2 June 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
BADMUS v SECRETARY OF STATE FOR THE HOME DEPARTMENT
Immigration Appeal Tribunal
[1994] Imm AR 137
Hearing Date: 11 November 1993
11 November 1993
Index Terms:
Political asylum -- refusal by Secretary of State -- appellant had claimed asylum after a deportation order had been signed against him -- whether appellant had right of appeal to a special adjudicator -- whether appeal should have been categorised as an appeal against refusal to revoke a deportation order. Asylum and Immigration Appeals Act 1993 ss 8(3), 8(6), sch 2 paras 1, 2: Asylum and Immigration Appeals Act 1993 (Commencement and Transitional Provisions) Order 1993 (SI 1993: 1655) art 3.
Held:
The appellant was a citizen of Nigeria who had breached a condition attached to his limited leave. The Secretary of State had accordingly decided to initiate deportation proceedings against him: after his appeal against that decision had been dismissed, the Secretary of State signed a deportation order. Some three weeks after that order was signed, the appellant claimed political asylum. That application was refused. The appellant sought to appeal against that refusal. The adjudicator, on his reading of the second schedule to the 1993 Act concluded that in the events which had happened, the appellant had no right of appeal. The appellant appealed to the Tribunal. Held 1. The adjudicator had erred by categorising the case according to the nature of the application made: he should have categorised it according to the terms of the decision. 2. On a proper view, the case was an appeal against a refusal to revoke a deportation order, that refusal being pleaded as being contrary to the United Kingdom's obligations under the United Nations Convention. 3. The effect of schedule 2 paragraph 2 of the 1993 Act was simply to limit section 8 of the Act to cases where there had been a claim for asylum and a decision on that claim: its restrictive provisions meant that in an appeal to an adjudicator on a ground other than asylum, where asylum was raised for the first time before the adjudicator, the adjudicator had no power to consider it. 4. Where there had been an application for asylum and a decision on that issue then an appeal always lay to a special adjudicator.Counsel:
F Kojo-Smith for the appellant; D Wilmott for the respondent PANEL: Professor DC Jackson (Vice President), Mrs SI Hewitt, A Smith EsqJudgment One:
THE TRIBUNAL: The appellant, a citizen of Nigeria, appeals against the decision of an adjudicator (Mr J Fox) declaring that he had no jurisdiction to consider the appellant's appeal against the refusal of asylum. It appears that the appellant initially came to this country in 1984 and having left returned as a visitor. He then was granted leave to remain as a student. On 26 July 1988 a decision was made to deport him on the ground that he had failed to observe a condition attached to his stay by taking unauthorised employment and an appeal against that decision was dismissed on 27 August 1992. The appellant was refused leave to appeal to the Tribunal on 10 November 1992. A deportation order was made on 5 May 1993. On 28 May 1993 an application was made on the appellant's behalf for political asylum. This application was refused on 17 August 1993. The refusal was through form APP 109 Deportee (Asylum) and through an attached "Reasons for Refusal" letter. Form APP 109 in so far as it relates directly to the decision reads: "Reference: B410002 . . . APP 109 DEPORTEE (ASYLUM)HOME OFFICE IMMIGRATION AND NATIONALITY DEPARTMENT IMMIGRATION ACTS 1971 AND 1988 -- ASYLUM AND IMMIGRATION APPEALS ACT 1993 REFUSAL TO REVOKE A DEPORTATION ORDER -- APPLICATION FOR ASYLUM REFUSED
To: Oladimeji Mumuni Badmus *On 26 July 1988 you were served with notice (APP 104), that the Secretary of State had decided to make an order by virtue of Section 3(5) of the Immigration Act 1971 requiring you to leave the United Kingdom and prohibiting you from re-entering while the order is in force. The Secretary of State subsequently made a deportation order against you on 5 May 1993 and confirms that he proposes to give directions for your removal to Nigeria, the country of which you are a national or which most recently provided you with a travel document. You have applied for asylum in the United Kingdom. The Secretary of State has decided to refuse your application for asylum for the reasons stated on the attached notice." The form also records that the appellant has a right of appeal. This part reads: "RIGHT OF APPEAL . . . You are entitled to appeal to the appellate authorities under Section 8(3) of the Asylum and Immigration Appeals Act 1993 on the ground that removal in pursuance of this order would be contrary to the United Kingdom's obligations under the 1951 United Nations Convention relating to the Status of Refugees." The appellant duly appealed and the matter came before the adjudicator on 11 October 1993. In his determination the adjudicator set out the background to the hearing and recorded that at the hearing he had advised the representatives that he did not consider that he had jurisdiction to hear the appeal "having regard to the provisions of schedule 2 paragraph 2 of the Asylum and Immigration Appeals Act 1993". It is as well to set out the appropriate provisions of the 1993 Act at this stage. The rights of appeal under that Act relating to deportation are those set out in section 8(3). This reads: "(3) Where the Secretary of State -- (a) has decided to make a deportation order against a person by virtue of section 3(5) of the 1971 Act, or (b) has refused to revoke a deportation order against a person by virtue of section 3(5) or (6) of that Act, the person may appeal to a special adjudicator against the decision or refusal on the ground that his removal in pursuance of the order would be contrary to the United Kingdom's obligations under the Convention; but a person may not bring an appeal under both paragraph (a) and paragraph (b) above." Section 8(6) gives effect to schedule 2 of the Act and provides that the preceding provisions of the section shall have effect subject to the schedule. Schedule 2 paragraphs 1 and 2 read: "1. No appeal may be brought under Part II of the 1971 Act on any of the grounds mentioned in subsections (1) to (4) of section 8 of this Act. 2. A person may not bring an appeal on any of the grounds mentioned in subsections (1) to (4) of section 8 of this act unless, before the time of the refusal, variation, decision or directions (as the case may be), he has made a claim for asylum." The adjudicator took the view first that the appellant's application was for political asylum and did not seek to revoke a deportation order. Secondly, thought the adjudicator, the appellant had no right of appeal because of the unambiguous wording of schedule 2 paragraph 2. The adjudicator said: "In my considered opinion, sub-paragraph 2 of Schedule 2 of the Asylum and Immigration Appeals Act 1993 effectively removes the appellant's right to appeal against the Deportation Order because he failed to make a claim for asylum in time. The claim for asylum was made after the Order had been signed. I have referred to the notice in the form APP 109 which is headed Immigration Acts 1971 and 1988, Asylum and Immigration Appeals Act 1993 Refusal to revoke a Deportation Order Application for Asylum Refused. In my view, that does not assist the appellant because he did not apply to revoke the Deportation Order he applied for political asylum and made the claim after the Order had been signed. The wording of sub-paragraph 2 of Schedule 2 is in my view clear and unambiguous." The adjudicator continued: "In the alternative, the appellant's leave to remain in the United Kingdom had been curtailed at the time when the application for asylum was made. This application was made prior to the enactment of the Asylum and Immigration Appeals Act 1993 and at that time his application had no right of appeal." Mr Wilmott and Mr Kojo-Smith joined in submitting that, contrary to the adjudicator's view there was an appeal under the 1993 Act. Mr Wilmott was content to rest his submissions on the specific issue raised by this case without relying on any argument as to the wider aspects which may be raised by the wording of schedule 2 paragraph 2. Mr Kojo-Smith was content to agree with Mr Wilmott as to the narrower aspects but did advert to the wider question. Mr Wilmott expressed sympathy for the adjudicator's approach but said that the decision by the Secretary of State was in substance a refusal to revoke a deportation order and therefore an appeal was expressly provided by section 8(3)(b). Mr Wilmott took us through form APP 109 and pointed out that the form was headed "Refusal to Revoke a Deportation Order". Both Mr Wilmott and Mr Kojo-Smith were agreed that if the Tribunal concluded that there was a right of appeal the matter should be remitted to an adjudicator for a hearing. Conclusions The categorisation of the appeal We agree with the parties' representatives that form APP 109 specifically categorises the decision as a refusal to revoke a deportation order because of the refusal of an application for asylum. In our view the adjudicator, with respect, focused his attention on the wording of the application to the exclusion of the wording of the decision. The letter of application simply applied for political asylum and did not make any reference to the immigration status and hence the immigration context in which that application was to be considered. Section 8 of the Asylum and Immigration Appeals Act 1993 provides for appeals against various types of decisions or directions on the ground that removal or refusal to extend leave "would be contrary to the United Kingdom's obligations under the Convention . . ." (ie the Convention relating to the status of refugees 1951). It follows from the format of section 8 that there is no appeal against a refusal of an asylum application as such. On the receipt of an application for asylum therefore the Secretary of State will consider it in the context of the immigration status of the appellant and any refusal of an asylum application will lead to a decision or directions appropriate to that status. It is that decision or directions which categorises the appeal and that categorisation will initially be for the Secretary of State and if there is a question about it on appeal, for the appellate authorities. In our view in this case, there being a deportation order in existence, the application could only be categorised as one to revoke that order on the basis of asylum. The form APP 109 therefore rightly categorised the application. That is not to say that form APP 109 is as clear as it might be. As we said, Mr Wilmott took us through this form and it does seem to us, with respect, that the form could be clarified first, by an express indication that the Secretary of State has treated the asylum application as an application for revocation of a deportation order, secondly, setting out the decision to refuse to revoke such an order, thirdly, confirming the directions made when the order was originally made and finally recording the rights of appeal in respect of the refusal to revoke such an order. It may be that the form should also indicate that any appeal against the refusal to revoke the deportation order on any other ground could be brought only after the appellant has left the United Kingdom, but on the other hand it may be that this, if appropriate to the case, should be treated as a separate matter. The decision appealed -- the effect of schedule 2 paragraph 2 The adjudicator held that schedule 2 paragraph 2 applied to remove the appellant's right of appeal. Not only, with respect, did he err in so doing because of the erroneous categorisation of the appeal but also because he focused on the wrong decision. Paragraph 2 of schedule 2 prohibits an appeal under section 8 from any "refusal variation or direction" which may found such an appeal. The effect of paragraph 2 is therefore to limit the scope of section 8 to cases in which there has been a claim for asylum and a decision made as regards that claim. So, in an appeal to an adjudicator on a ground other than asylum in which asylum is raised for the first time there is no power to consider that matter. On the other hand, where there has been an asylum application and a decision on it, there is a foundation for an appeal under section 8. Such an appeal will not lie only if the matter falls outside that provision in the sense because either the decision or the appellant does not fall within section 8. It should be remembered in considering the interpretation of the 1993 Act that unlike the 1988 Act it establishes a new route of appeal and a route which is exclusive to that Act. (See schedule 2 paragraph 1). The key to the interpretation of section 8 and paragraph 2 of schedule 2 is the possibility of more than one decision having the like effect. So there is nothing in either the 1971 or the 1993 Act to prevent more than one application for leave to enter or remain or more than one application for revocation of a deportation order. Where one of those applications is an application for asylum and there is a decision on that application it matters not for the purpose of the 1993 Act that there has been an earlier application and an earlier decision. The decision relevant to the 1993 Act is that dealing with the application on the basis of asylum. Where the matter at issue does not involve an application (ie a decision to make a deportation order or the giving of directions) it may be that to ensure that there is an appealable decision under section 8 the Secretary of State may have to substitute or confirm the decision already taken or directions already made. That is a matter, however, clearly within the power of the Secretary of State and provided the decision to make the deportation order or the giving of directions is clearly linked to the refusal of the asylum application, it seems to us that there will be a right of appeal under section 8. On that appeal it will be for the adjudicator to focus on the decision against which the appeal is brought and not any earlier decision. Any issue as to whether there was a right of appeal or not would only arise if the decision appealed were held in some way not to be linked to the refusal of asylum. The adjudicator thought the effect of schedule 2 paragraph 2 to be clear and unambiguous. With this we agree, but it has to be appreciated that it is concerned only with those types of claims and decisions which can found an asylum appeal under section 8. Relevance of curtailment of leave The adjudicator took an alternative ground that the appellant's leave to remain had been curtailed at the time when his asylum application was made and that the application was made prior to the enactment of the 1993 Act. We are uncertain as to whether the appellant's leave was ever curtailed. However, even if it was, such curtailment was irrelevant to the application for asylum which was made after the deportation order had been made. As we have said, the substance of the application was to revoke that order. Secondly, with respect, the fact that the asylum application had been made prior to the 1993 Act is irrelevant to the existence of the right of appeal. Section 8 of the 1993 Act does not apply only where the relevant decision (in this case the decision to refuse to revoke a deportation order) was made before 26 July 1993 (see the Asylum and Immigration Appeals Act 1993 (Commencement and Transitional Provisions) Order 1993, article 3.) Summary In this case the appeal was against the refusal to revoke a deportation order, the appellant having made an asylum claim prior to the decision to refuse to revoke the order. An appeal therefore lies under section 8(3)(b) of the Asylum and Immigration Appeals Act 1993 on the ground that removal pursuant to the order be contrary to the United Kingdom's obligations under the Refugee Convention. This appeal is outstanding and with the agreement of the parties we therefore remit it for hearing before an adjudicator.DISPOSITION:
Appeal remitted for hearing on the meritsSOLICITORS:
Representatives for the appellant: Britannia Legal Advice CentreCopyright notice: Crown Copyright
