Razaistaraie v. Secretary of State for the Home Department

RAZIASTARAIE v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Immigration Appeal Tribunal

[1994] Imm AR 330

Hearing Date: 22 February 1994

22 February 1994

Index Terms:

Tribunal -- jurisdiction -- deportation -- conducive to the public good -- application for asylum -- whether the Tribunal had jurisdiction to determine the appeal against deportation -- the effect of the provisions of the 1993 Act. Immigration Act 1973 s 3(5)(b): Asylum and Immigration Appeals Act 1993 s 8(3), sch 2 paras 1, 2, 3: Asylum Appeals (Procedure) Rules 1993 r 29.

Held:

The appellant was a citizen of Iran. He had been convicted of serious drug offences: the court had recommended he be deported. The Secretary of State however, in the deportation proceedings he had initiated, had elected to proceed under section 3(5)(b) of the 1973 Act, not under section 3(6) of the Act. The appellant appealed to the Tribunal. The appellant however had applied for asylum, asserting that for the Secretary of State to deport him to Iran would be a breach of the United Kingdom's obligations under the 1951 Convention. His application was refused: he appealed against that refusal. The Tribunal considered its jurisdiction. Held 1. In accordance with the provisions of the 1993 Act the Tribunal had no jurisdiction to hear and determine a section 3(5)(b) deportation appeal, where an appellant had also lodged an appeal against a refusal of asylum. 2. The appeal against deportation would be heard by a special adjudicator in conjunction with the appeal against the refusal of asylum.

Counsel:

J Lugmani for the appellant; D Willmott for the respondent PANEL: GW Farmer Esq (President), Professor DC Jackson (Vice-President), Professor DS Pearl

Judgment One:

THE TRIBUNAL: The appellant, a citizen of Iran, appeals against a decision by the Secretary of State to make a deportation order against him by virtue of section 3(5)(b) of the Immigration Act 1971. This determination is concerned solely with the jurisdiction of the Tribunal to consider the appeal given that the appellant wishes to raise an asylum claim in the context of the deportation proceedings. The background to the case as set out in the explanatory statement is that the appellant arrived in this country on 27 September 1976, departing in 1979. On his return on 5 January 1982 he initially sought entry for a visit, but also stated that he wished to apply for asylum. Eventually the appellant was recognised as a refugee and given leave to remain as such until 3 December 1986. On the appellant's behalf an application was made on 26 January 1987 for further leave to remain as a refugee, but while that application was being considered the appellant was convicted of supplying heroin in contravention of the Misuse of Drugs Act 1971. He had three previous convictions for the unlawful possession of heroin. On the conviction of June 1988 the court recommended him for deportation. On 17 April 1989 the Secretary of State refused the application for further leave to remain as a refugee on the basis that the appellant was a danger to the community and had therefore put himself outside the scope of the Refugee Convention. In order to confer on the appellant a right of appeal the Secretary of State decided not to implement the deportation recommendation but on 25 August 1993 took the decision to make the deportation order. The jurisdictional problem is created by the coming into force of the Asylum and Immigration Appeals Act on 26 July 1993. Had the decision at issue before us been taken prior to that date there would have been no question but that any issue of asylum of itself and as a circumstance relevant to deportation could and should have been considered by the Tribunal in the deportation appeal. However, since the 1993 Act any appeal against the decision to make a deportation order by virtue of section 3(5) of the 1971 Act on the ground that the removal of the appellant would be contrary to the Refugee Convention must be brought under the 1993 Act (see section 8(3) schedule 2 paragraph 1). Further, it is provided by the 1993 Act (schedule 2 paragraph 2) that a person may not bring an appeal on such a ground unless before the time of the decision he has made a claim for asylum. As in this case there was no outstanding claim, a prerequisite for any "asylum appeal" was that an application should be made for asylum and that it should be refused. Such a refusal would create a foundation for the right of appeal under the 1993 Act. That appeal would under that Act be to a special adjudicator. The appeal against the deportation decision on grounds other than asylum remains extant but, again by virtue of the 1993 Act, where there are appeals on asylum and non-asylum grounds they must be heard by a special adjudicator in the same proceedings (see schedule 2 paragraph 3). Under the 1993 Act the Secretary of State is authorised to make rules of procedure which may make special provision for proceedings falling within paragraph 3 of schedule 2 (see schedule 2 paragraph 4(3)). The current relevant rule is contained in rule 29 of the Asylum Appeals (Procedure) Rules 1993. It is clear from the statute and the rule that once an appellant has given notice of appeal against a decision under the 1971 Act and notice under the 1993 Act the provisions of schedule 2 paragraph 3 apply. While in this case jurisdiction remains in the Tribunal to consider the appeal against the deportation decision on all grounds other than asylum it would make no sense to divide up consideration of the grounds on which the appellant bases his appeal or appeals. When the case came before the Tribunal there was no outstanding application for asylum but it was agreed by the Tribunal and the representatives of the party that for the appellate machinery to work, and to work efficiently, the matter should be adjourned to allow an application for asylum to be made and a decision to be taken on it. If that application were refused that would provide an opportunity for an appeal to be brought under the 1993 Act and the machinery which we have outlined to operate. This has now occurred. In accordance with the 1993 Act we declare that as notice of appeal has been given in an asylum appeal the Tribunal has no jurisdiction to consider directly an appeal under the 1971 Act against the deportation decision. The matter will now be heard by a special adjudicator in conjunction with the appeal under the 1993 Act against the refusal of asylum.

DISPOSITION:

Judgment accordingly

SOLICITORS:

Solicitors for the appellant: Gordon Doctors & Walton, London SE17