R v. Immigration Appeal Tribunal, Ex parte Enwia and Others; R v. Immigration Appeal Tribunal, Ex parte AS

COURT OF APPEAL, CIVIL DIVISION

[1983] 2 All ER 1045, [1983] Imm AR 40

Hearing Date: 20, 21, 22 APRIL, 20 MAY 1983

20 MAY 1983

Index Terms:

Immigration -- Appeal -- Deportation -- Appeal to tribunal from adjudicator -- When leave must be granted -- Direction that person is to be removed to country where he fears persecution -- Is to be removed -- Iraqi citizen required to leave United Kingdom -- Applicant fearing persecution if he returned to Iraq -- Whether applicant to be treated as a person 'to be removed' to Iraq -- Whether applicant having right of appeal from adjudicator to tribunal -- Immigration Act 1971, s 14(1) -- Immigration Appeals (Procedure) Rules 1972, r 14(2)(b).

Held:

The applicant, AS, was an Iraqi citizen who was given leave to enter the United Kingdom for a limited period as a student. In the course of his stay the applicant applied to the Secretary of State to remain in the United Kingdom on the ground that he would be persecuted if he returned to Iraq. His father had been executed by the regime in power in Iraq. The Secretary of State refused his request and required the applicant to leave the United Kingdom by a specified date. The applicant appealed to an adjudicator under s 14of the Immigration Act 1971 against the Secretary of State's refusal to vary the conditions of his leave to enter. The adjudicator found that although the applicant's fear of persecution in Iraq was well founded that fear was not for any of the reasons specified in the immigration rules and further found that he would not have to go back to Iraq. He therefore dismissed the appeal. The applicant applied to the Immigration Appeal Tribunal for leave to appeal from the adjudicator's decision but the tribunal refused leave. The applicant then applied for judicial review of the tribunal's refusal to grant leave. The judge held that although a deportation order had not been made against the applicant he was to be treated as a person who 'is to be removed' to a country to which he was 'unwilling to go owing to the fear of being persecuted' and therefore had a right of appeal, under r 14(2)(b) of the Immigration Appeals (Procedure) Rules 1972, to the tribunal so that the question of whether the applicant was entitled to political asylum could be determined once and for all. The judge granted certiorari to quash the tribunal's refusal and mandamus requiring the tribunal to grant leave and hear the applicant's appeal. The tribunal appealed. At the hearing of the appeal a similar appeal was also heard. Held -- A person was 'to be removed' to a country, for the purposes of having a right of appeal to, inter alia, an immigration tribunal under r 14(2)(b) of the 1972 rules, only if directions had been given for the removal of that person from the United Kingdom to a fixed destination, being a country where he feared persecution. Accordingly, an applicant was only entitled to leave to appeal under r 14(2)(b) if he was appealing under s 17(1) of the 1971 Act against directions for his removal to a specified country where he feared persecution. Since the applicant had been merely required to leave the United Kingdom, from which he could go to a country of his choice, and had not yet been directed to be deported to Iraq, r 14(2)(b) did not apply and the tribunal was not bound by that rule to grant leave to appeal. The grant of leave was accordingly a matter for the tribunal's discretion and since, on the facts, the tribunal had come to a reasonable decision the court would not interfere with its decision to refuse to grant leave to appeal from the adjudicator (see p 1055 a to c, p 1056 b to d and p 1057 g h, post).

Notes:

For the procedure on appeal to the tribunal from an adjudicator, see 4 Halsbury's Laws (4th edn) para 1025. For the Immigration Act 1971, ss 14, 17, see 41 Halsbury's Statutes (3rd edn) 35, 38. For the Immigration Appeals (Procedure) Rules 1972, r 14, see 2 Halsbury's Statutory Instruments (4th Reissue) 31.

Cases referred to in the Judgment:

Chief Constable of the North Wales Police v Evans [1982] 3 All ER 141, [1982] 1 WLR 1155, HL. Mohammed Taj and Mohammed Riaz v Immigration Appeal Tribunal (30 June 1982, CA Unbound Transcript 572). R v Immigration Appeal Tribunal, ex p Mehmet [1977] 2 All ER 602, [1977] 1 WLR 795, DC. R v Leyland Justices, ex p Hawthorn [1979] 1 All ER 209, [1979] 2 QB 283, [1979] 2 WLR 28, DC. R v West Sussex Quarter Sessions, ex p Albert and Maud Johnson Trust Ltd [1973] 3 All ER 289, [1974] QB 24, [1973] 3 WLR 149, CA. Ridge v Baldwin [1963] 2 All ER 66, [1964] AC 40, [1963] 2 WLR 935, HL.

Introduction:

Appeals R v Immigration Appeal Tribunal, ex p Enwia and others Yousif Isaac Enwia, Varginia Daood Gerges Enwia, Ubert Enwia and Meshaid Enwia applied, with the leave of McNeill J granted on 16 March 1982, for (1) an order of certiorari to quash the determination of the Immigration Appeal Tribunal dated 17 August 1981 refusing them leave to appeal from the determination of an adjudicator dated 6 July 1981 dismissing their appeal under s 14 of the Immigration Act 1971 from the refusal of the Secretary of State to vary the first applicant's leave to enter the United Kingdom and to grant him asylum in the United Kingdom, and (2) an order of mandamus directing the tribunal to grant the applicants leave to appeal and to hear the first applicant's appeal. On 26 May 1982 Comyn J, hearing the Crown Office list, quashed the tribunal's determination and issued an order of mandamus directing the tribunal to grant leave and to hear the first applicant's appeal on the grounds, inter alia, that the tribunal did not give the applicants an oral hearing, and that by virtue of r 14(2)(b) of the Immigration Appeals (Procedure) Rules 1972 the tribunal was bound to grant the applicants leave to appeal. The tribunal appealed on the grounds, inter alia, that the judge erred in law in deciding that the tribunal was bound to grant the applicants leave to appeal. The facts are set out in the judgment of the court. YdR v Immigration Appeal Tribunal, ex p AS AS applied, with the leave of Stephen Brown J given on 22 October 1982, for (1) an order of certiorari to quash the determination of the Immigration Appeal Tribunal dated 22 June 1982 refusing him leave to appeal from the determination of an adjudicator dated 12 May 1982 dismissing his appeal under s 14 of the Immigration Act 1971 against the Secretary of State's refusal to vary his leave to enter the United Kingdom and to grant him asylum, and (2) an order of mandamus directing the tribunal to grant leave to appeal and to hear the appeal. On 23 March 1983 Woolf J, hearing the Crown Office list, quashed the tribunal's determination and issued an order of mandamus directing the tribunal to grant leave to appeal and to hear the appeal, on the ground that under r 14(2)(b) of the Immigration Appeals (Procedure) Rules 1972, the tribunal was bound to grant AS leave to appeal. The tribunal appealed on the ground that the judge erred in law in deciding that the tribunal was bound to grant AS leave to appeal. The facts are set out in the judgment of the court. The case is reported for the issue which arose in AS's appeal.

Counsel:

Andrew Collins for the tribunal. Sir Charles Fletcher-Cooke QC and K S Nathan for the Enwia family. Anthony Scrivener QC and K S Nathan for AS.

Judgment-READ:

Cur adv vult 20 May. The following judgment of the court was delivered. PANEL: STEPHENSON AND O'CONNOR LJJ

Judgment One:

STEPHENSON LJ. These five respondents were refused leave to appeal by the appellant tribunal against determinations by adjudicators of their appeals under s 14 of the Immigration Act 1971. Their appeals have one point in common and we have therefore heard them together. On 26 May 1982 Comyn J quashed the tribunal's determination, dated 17 August 1981, refusing the first four respondents leave to appeal, and on 23 March 1983 Woolf J quashed the tribunal's determination dated 22 June 1982 refusing the fifth respondent leave to appeal. Under the orders made by those judges on a judicial review of the tribunal's determinations the respondents' cases must go back to the tribunal for their appeals to be heard, orally in the case of the first respondent. Counsel for the tribunal submits that they should not be sent back or heard, because leave to appeal was rightly refused in each case. The first four respondents are a family, father, mother and two sons, all of Iraqi citizenship. Their appeals are from the same determination, and we shall refer to them collectively as Enwia. The fifth respondent is an Iraqi citizen, unconnected with the others, whom we shall refer to for his own protection, as he has successfully requested, as AS. His appeal is from a different determination, unconnected with the Enwia determination, though by the same member of the tribunal. Enwia and AS are persons who are not patrial. Both were given leave to enter the United Kingdom for a limited period under s 3(1)(b) of the 1971 Act, Enwia in August 1979 for six months as a visitor, AS in October 1974 for 12 months as a student, extended from time to time to October 1981. Each applied to the Secretary of State to vary his leave by removing the limit on its duration under s 3(3)(a), Enwia in February 1980 as a self-employed businessman, AS in September 1980 while still a student. Enwia wrote to the Home Office on 18 February 1980:

'I would be very grateful, if you kindly grant me Business Permission as ''Self-Employed'', as I wish to invest and deal with the Export Business, to promote the sales of the British products in the Middle East. I am trying to get all my money out of Iraq to invest them in this country, as I have no more chance to invest them in Iraq because of Government nationalization and discrimination of races and religion by the Governing party, as we are Christians and from Assyrian nation. My father has worked for the British R.A.F. Army in Iraq as a Sergeant Major for 15 years.'

AS wrote to the Home Office on 22 September 1980:

'I write to ask if consideration could be given to this application to remain in this country. I am still studying at Brighton Polytechnic, but owing to unforseen and very tragic circumstances connected with my late father in Iraq it will not be possible for me, either at the conclusion of my studies or even for holidays, to return to my country. . . My position is extremely difficult, as I have been advised from high sources in Iraq that I should not return to that country.'

His father had in fact been executed in Iraq for alleged bribery in connection with the business of an English company. Each raised the question of asylum in this country, Enwia as a subsidiary ground for extending his leave. Each was interviewed by the Home Office, and had his application refused by the Secretary of State. His decision of 17 February 1981 informed Enwia:

'You have applied for leave to remain as a self employed businessman but you were not admitted for this purpose and it is a purpose for which an entry clearance obtained before arrival is necessary. Further you have applied for leave to remain on the grounds that if you return to Iraq you will be persecuted, as you are an Assyrian Christian but the Secretary of State is not satisfied that your fears of persecution are well-founded. The Secretary of State therefore refuses your application. Under the Immigration (Variation of Leave) Order 1976, your stay has been extended to 17th March 1981. If you do not wish to appeal, you should leave the United Kingdom by that date. You are entitled to appeal against this decision under section 14(1) of the Immigration Act 1971 to the independent appellate authorities established under that Act. If you wish to appeal you should complete the attached form and return it to the Under Secretary of State, Home Office (Appeals Section), Lunar House, Wellesley Road, CROYDON CL9 2 By, to arrive NOT LATER THAN 14 DAYS AFTER THE DATE OF THIS NOTICE. The Home Office will transmit your notice of appeal to the appellate authorities. The United Kingdom Immigrants Advisory Service, a voluntary organisation independent of the Government, will advise you, if you wish, about the decision which has been taken against you and on whether to exercise your right of appeal. If you decide to appeal, the Service can also help you to prepare your appeal and to present it to the appellate authorities. These services are provided free of charge.'

His decision of 9 November 1981 informed AS:

'You have applied for leave to remain in the United Kingdom on the grounds that if you are required to leave you would have to go to Iraq where you fear persecution but the Secretary of State is not satisfied that your fear of persecution is well founded. The Secretary of State therefore refuses your application. Under the Immigration (Variation of Leave) Order 1976, your stay has been extended to 7 December 1981. If you do not wish to appeal, you should leave the United Kingdom by that date.'

AS was then given the same further information about appealing. Each appealed to an adjudicator. Enwia's appeal was dismissed on 6 July 1981, AS's on 20 May 1982. Each applied to the tribunal for leave to appeal. The tribunal refused Enwia leave on 17 August 1981, and AS leave on 22 June 1982. Judges of the Divisional Court have declared both those refusals wrong. Counsel for the tribunal appeals to this court to uphold the tribunal's refusals on the ground which was given by the tribunal for refusing AS's application, though it was not the ground it gave for refusing Enwia's application. Comyn J's main reason for allowing Enwia's appeal was that he had not been given an oral hearing. But he also rejected a submission, not considered by the tribunal but made in support of its decision by counsel for the tribunal, that leave to appeal to the tribunal was required, and held that Enwia had a right of appeal under r 14(2)(b) of the Immigration Appeals (Procedure) Rules 1972, SI 1972/1684. Woolf J allowed AS's appeal on the second point, which was considered and decided by the tribunal, namely that AS had a right of appeal under that rule. On these appeals by the tribunal we have to consider whether those judges were right in their interpretation and application of r 14(2)(b), and whether Comyn J was right to quash the tribunal's determination of Enwia's application for leave to appeal because he was not given an oral hearing and on AS's cross-notice whether if r 14(2)(b) did not apply to AS's case, the tribunal should nevertheless have given him leave to appeal because the adjudicator's decision was one which no reasonable adjudicator could have reached or because his case might require a further oral hearing. It now becomes necessary to consider the statutory provisions governing immigration appeals. They are contained in Part II of the 1971 Act and in the 1972 rules, of which r 14 is one. There are two 'appellate authorities', adjudicators and the Immigration Appeal Tribunal: see s 12 and r 2(1). There are appeals to an adjudicator against exclusion from the United Kingdom by persons refused leave to enter: see s 13. Appeals against variations of leave and refusals to vary it by persons who have limited leave to enter or remain are provided by s 14, sub-s (1) of which reads:

'Subject to the provisions of this Part of this Act, a person who has a limited leave under this Act to enter or remain in the United Kingdom may appeal to an adjudicator against any variation of the leave (whether as regards duration or conditions), or against any refusal to vary it: and a variation shall not take effect so long as an appeal is pending under this subsection against the variation, nor shall an appellant be required to leave the United Kingdom by reason of the expiration of his leave so long as his appeal is pending under this subsection against a refusal to enlarge or remove the limit on the duration of the leave.'

It is by virtue of this section that Enwia and AS appealed to adjudicators. Section 15(1) provides:

'Subject to the provisions of this Part of this Act, a person may appeal to an adjudicator against--(a) a decision of the Secretary of State to make a deportation order against him by virtue of section 3(5) above . . .'

Section 15(2) provides:

'A deportation order shall not be made against a person by virtue of section 3(5) above so long as an appeal may be brought against the decision to make it nor, if such an appeal is duly brought, so long as the appeal is pending. . .'

No decision to make a deportation order has yet been made in respect of Enwia or AS, but each is 'liable to deportation', as well as being guilty of a criminal offence (s 24(1)(b)(i)) unless his appeal to be allowed to remain here is successful for s 3(5) provides:

'A person who is not patrial shall be liable to deportation from the United Kingdom--(a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave. . .'

Once liable to deportation an immigrant may expect to have a deportation order made against him. By s 5(1):

'Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.'

Section 5(5) provides:

'The provisions of Schedule 3 to this Act shall have effect with respect to the removal from the United Kingdom of persons against whom deportation orders are in force and with respect to the detention or control of persons in connection with deportation.'

and para 1(1) of Sch 3 provides alternative destinations:

'Where a deportation order is in force against any person, the Secretary of State may give directions for his removal to a country or territory specified in the directions being either--(a) a country of which he is a national or citizen or (b) a country or territory to which there is reason to believe that he will be admitted.'

Appeals are given against directions for a person's removal by s 16, where they are given on the ground that he is an illegal entrant or has entered in breach of a deportation order, and under s 17 on any one of three grounds set out in sub-s (1), which provides:

'Subject to the provisions of this Part of this Act, where directions are given under this Act for a person's removal from the United Kingdom either--(a) on his being refused leave to enter or (b) on a deportation order being made against him or (c) on his having entered the United Kingdom in breach of a deportation order he may appeal to an adjudicator against the directions on the ground that he ought to be removed (if at all) to a different country or territory specified by him.'

The section goes on in sub-ss (2) and (3) to provide that where a person appeals under s 13(1) on being refused leave to enter, or under s 15 against a decision to make a deportation order against him and has notice that any directions which may be given for his removal will be for his removal to a specified country or territory or one of several specified countries or territories, he may on that appeal object and claim that he ought to be removed (if at all) to a different country or territory specified by him. Section 19(1) lays down an adjudicator's duties on an appeal and provides that:

'Subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act-- (a) shall allow the appeal if he considers--(i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently and (b) in any other case, shall dismiss the appeal.'

Section 20 provides for appeals to the tribunal from his determination:

'Subject to any requirement of rules of procedure as to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal, and the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator.'

Section 22 gives the Secretary of State power, exercisable by statutory instrument, to make rules of procedure relating to appeals and he has made the 1972 rules in exercise of that power. Part II of those rules contains the rules for appeal to an adjudicator or the tribunal at first instance, Part III the rules for appeals from an adjudicator to the tribunal. In Part II the only rule referring to appeals under s 14(1) is r 4(5) giving a time limit for appealing, but there are references to appeals under s 17(1) against directions for removal in rr 4(10) and 9. Rule 12 deals generally with the determination of appeals at first instance, whether by adjudicators or by the tribunal, without a hearing, and its relevant provisions are:

'An appellate authority may determine an appeal without a hearing if--(a) no party to the appeal has requested a hearing or . . . (d) the appellate authority is satisfied that no matter arises on the appeal other than an objection by the appellant to removal to a particular country or territory or a claim by him that he ought to be removed (if at all) to a different country or territory and is of opinion that matters put forward in support of the appeal in pursuance of Rule 9 do not warrant a hearing . . .'

Part III contains the all-important r 14, which provides:

'(1) An appeal shall lie only with the leave of the adjudicator or of the Tribunal where it is from a determination by an adjudicator--(a) on an appeal under any provision of the Act other than section 14 (appeals against conditions) (b) on an appeal under section 14 which was dismissed on the determination of such a preliminary issue as is referred to in Rule 11, or (c) on an appeal under section 14(1), by a person who has a limited leave under the Act to enter or remain in the United Kingdom, against a refusal to vary that leave.

(2) In addition to the circumstances in which leave to appeal must be granted by virtue of section 22(5) of the Act (existence of certificate of patriality or entry clearance), an appellate authority to whom application for leave to appeal as aforesaid is duly made shall grant it--(a) if the authority is satisfied that the determination of the appeal turns upon an arguable point of law or (b) where an adjudicator has dismissed an appeal by a person who is in the United Kingdom, if the authority is satisfied that the country or territory to which he is to be removed is one to which he is unwilling to go owing to the fear of being persecuted there for reasons of race, religion, nationality, membership of a particular social group or political opinion.'

Rule 16 provides for notice of appeal or an application for leave to appeal being given or made on Form 2, which is scheduled to the rules the grounds of either may be varied (r 4(3)) r 16 (5) provides that 'an application for leave to appeal shall be disposed of without hearing unless the adjudicator or, as the case may be, the tribunal considers that the special circumstances render a hearing desirable'. Rule 40 requires an appellate authority to cause a summary or record of the proceedings before it to be taken, and r 18 gives the tribunal power 'in its discretion' to 'receive or decline to receive further evidence of which notice has been given' than the summary or record of any evidence received by the adjudicator and if the tribunal decides to receive further evidence 'it shall be given, as the tribunal may direct, either (i) orally . . . or (ii) in writing . . .' By r 20 'The Tribunal may dispose of an appeal without a hearing if--(a) no party to the appeal has requested a hearing . . .' There are many references in later rules to a hearing, which indicate that it is an oral hearing: see rr 24, 28, 32, 35, 36, 37. Rule 18 would appear to apply to appeals, not to applications for leave to appeal, though that may not be the effect of its references to 'any party to the appeal' and 'any proceedings on an appeal' in paras (2) and (3). And r 28 may also be so limited by its references to 'each party to the appeal', as may be r 35 by its reference to 'on an appeal'. Rule 35 provides for summary determination of appeals in these terms:

'(1) Subject to the provisions of paragraph (2) below, where it appears to an appellate authority that the issues raised on an appeal have been determined--(a) in the case of an appeal before an adjudicator, by the same or another adjudicator or by the Tribunal, or (b) in the case of an appeal before the Tribunal, by the Tribunal, under Part II of the Act or the former appeal provisions, in previous proceedings to which the appellant was a party, on the basis of facts which did not materially differ from those to which the appeal relates, the authority may forthwith determine the appeal without a hearing. (2) Before an appellate authority determines an appeal without a hearing in accordance with paragraph (1) above, the authority shall give the parties an opportunity of making representations to the effect that the appeal ought not to be so determined.

(3) Where an appeal is determined without a hearing in accordance with paragraph (1) above, the appellate authority shall give written notice to the parties that the appeal has been so determined, and any such notice shall contain a statement of the issues raised on the appeal and specify the previous proceedings in which those issues were determined . . .'

Rule 32 does provide that 'any hearing by an appellate authority shall take place in public' (my emphasis), with certain immaterial exceptions, and that would include, perhaps by inadvertence, the hearing of an application. We have, however, no doubt that a power to receive oral evidence on the hearing of an appeal must carry with it the power to receive that evidence de bene esse on an application for leave to appeal, if it is necessary to help the tribunal to decide whether to grant or refuse leave. Of these rules, four provide for proceedings 'without a hearing': rr 12, 16(5), 20 and 35. Against that background of legislation we now consider the points raised by these appeals and the cross-notice of the respondent AS. 1. The first point to be decided is whether Enwia is entitled to have the tribunal's refusal of his application for leave to appeal quashed because he had no oral hearing. Unlike AS, he had no oral hearing of his appeal to the adjudicator, and the tribunal has not given him an oral hearing either. Under r 12 the adjudicator was entitled to determine his appeal without a hearing if he did not request a hearing, or if the adjudicator was satisfied that no matter arose on the appeal other than his objection to removal to Iraq and that the matters he had put forward in support of his appeal did not warrant a hearing. Under r 16(5) the tribunal was bound to dispose of his application for leave to appeal without a hearing unless it considered that special circumstances rendered a hearing desirable. Rule 20 had no application to Enwia, except in so far as, on his application for leave to appeal, the tribunal might have to consider any request for a hearing of his appeal if his application for leave to appeal was granted. Rule 35 had no application to his case. The reason why he was not granted an oral hearing of his appeal to the adjudicator is not far to seek: he did not ask for one. Indeed, a counsellor of the United Kingdom Immigrants Advisory Service wrote on 1 June 1981 asking the adjudicator to determine the appeal without a hearing.[The court considered the facts relating to Enwia's failure to ask for an oral hearing before the adjudicator and the tribunal. The court stated that Comyn J had found that the tribunal reached its determination on the wrong assumption that Enwia did not want to give oral evidence before the adjudicator or the tribunal and that the judge had held that because the tribunal's determination was reached on that fundamental false assumption he, Comyn J, could interfere with the determination by way of judicial review. Accordingly, Comyn J had quashed the determination. The court then went on to consider the question whether, on the basis that Enwia wanted an oral hearing before the adjudicator and the tribunal, the remedy of judicial review was available to quash the determination because he had not been given an oral hearing. On that question, the court said:] Counsel for the tribunal has submitted on its behalf first that there was no basis in fact for Comyn J's finding that Enwia always wanted to be heard in person, and second that even if there were, the remedy of judicial review would not be available because there was no error of law on the tribunal's part or on the adjudicator's part, or on the part of the Secretary of State, in not giving him an oral hearing. Counsel for Enwia has, on the other hand, submitted first on the facts that the judge was entitled to find that the United Kingdom Immigrants Advisory Service acted without authority in agreeing that there should be no oral hearing of Enwia's case before the adjudicator (though there was a hearing of the Secretary of State's case), that he did request a 'hearing' in his notice of application for leave to appeal of 17 July 1981, and that there were special circumstances which should have led the tribunal to hear him on his application for leave, or to have granted him leave in order that he, and perhaps other evidence, might be heard. Second, on the law there was here a denial of natural justice in that the principle audi alteram partem had not been complied with. On the second question, we have considered what Lord Reid said in Ridge v Baldwin [1963]2 All ER 66 at 71, [1964] AC 40 at 64--65 about the importance of proceeding fairly when the procedure may lead to a decision seriously affecting the subject of it, and what Slynn J said in R v Immigration Appeal Tribunal ex p Mehmet [1977] 2 All ER 602 at 608, [1977] 1 WLR 795 at 804--805 of the need to interpret special circumstances widely in another of these immigration rules. We have considered also the four or five categories of case to which judicial review applies, which counsel for the tribunal submits, contrary to the judgment of Comyn J, are exhaustive, and the possibility that they may be extended in a proper case to cover errors in law, not only of the decision-making body, but of the other party, for which R v Leyland Justices, ex p Hawthorn [1979] 1 All ER 209, [1979] 2 QB 283 is an authority, and even of the party complaining of the decision by way of judicial review, for which there is no authority. Bearing in mind the judgments of Orr and Lawton LJJ in R v West Sussex Quarter Sessions, ex p Albert and Maud Johnson Trust Ltd [1973] 3 All ER 289 at 298--299, 301, [1974] QB 24 at 39, 42, and of Lord Hailsham LC and Lord Brightman in Chief Constable of the North Wales Police v Evans [1982] 3 All ER 141 at 143--144, 155, [1982] 1 WLR 1155 at 1160--1161, 1174--1175, we can see that it might be permissible to quash a decision seriously affecting a person who by mistake or misunderstanding due to his own defects or those of his advisers was deprived of the opportunity of being fully heard before the decision was reached. However, we find it unnecessary and undesirable to decide whether judicial review would lie in such a case, because we are clearly of opinion that this is not such a case. With the greatest respect to the judge and his commendable desire to ensure that no injustice was done to a party in the position of Enwia and his family, we cannot see what material he had on which to base his conclusion that Enwia had always wanted an oral hearing.[The court reviewed the facts and continued:] Moreover, we do not accept the submission of counsel for Enwia that in every case where asylum is claimed, unless the claim is obviously unfounded or the applicant has had an oral hearing before the adjudicator, there are 'special circumstances' within r 16(5) because the tribunal must answer the question whether the applicant has a subjective fear of being persecuted in the country to which he is unwilling to go, however well- or ill-founded objectively his fear may be. It may be generally desirable that an applicant refused asylum should be heard at some stage of the appeal process but the existence of special circumstances allowing (not requiring) a hearing of the application for leave to appeal against the adjudicator's refusal of asylum must depend on all the facts of the particular case. For these reasons we reject the judge's main reason for quashing the tribunal's refusal of leave. 2. The next point is one common to the appeals of Enwia and AS. Was the tribunal bound to grant leave to appeal to Enwia and AS because they came within r 14(2)(b) of the 1972 rules? Each was a person in the United Kingdom whose appeal had been dismissed by an adjudicator each was unwilling to go to Iraq, and it is to be assumed for the purpose of this point each was 'unwilling to go owing to the fear of being persecuted there for reasons of race, religion, nationality, membership of a particular social group or political opinion'. Ought the tribunal to have been satisfied that Iraq was 'the country or territory to which he is to be removed'? Or was each and is each still not, not yet, in that situation? We have found this a much more difficult question to answer. Counsel for the tribunal contends that the words of r 14(2)(b) should be given their plain natural meaning, and if they are, they do not apply to a person appealing against a refusal of leave to remain under s 14, but to a person appealing against directions for removal under s 17 and possibly (though he expressed doubts about the alternative raised in his notices of appeal) to a person appealing against a decision to make a deportation order under s 15 'when as a matter of fact it was established that the particular appellant would, if deported, be removed to a country or territory to which he was unwilling to go for fear of persecution on the grounds referred to in r 14(2)(b)'. There can be no doubt that a person is to be removed to that country, say to Iraq, when the Secretary of State has given directions for his removal from the United Kingdom on a deportation order being made against him. Then he has his appeal under s 17 and the tribunal (or the adjudicator) must grant him leave to appeal against the adjudicator's dismissal of his appeal. The same would be true if directions for removal had been given for the removal of a person who came within s 16 of the Act. But neither Enwia nor AS has been given a direction to be removed. All that has happened is that he has been refused leave to remain here and informed by the notice of refusal that if he does not wish to appeal he should leave the United Kingdom by the date to which his stay has been extended. At this stage there are various options open to the immigrant. He may decide to leave for a country of his choice, perhaps in Enwia's case the United States of America, where his brother and sister are, and in AS's case Switzerland, where most of his money is. The Secretary of State may decide not to deport him, e g on compassionate grounds, and to allow him to stay. It is uncertain whether he will have to be removed to any country, and still less certain whether he will be removed to the particular country where he faces persecution. The Statement of Changes in Immigration Rules (HC Paper (1979--80) no 394) laid before Parliament on 20 February 1980 draws the distinction between asylum at the stage of variation of leave to enter or remain (Pt X) and deportation (Pt XI). After pointing out in para 64 (in Pt VI) that--

'Special considerations arise when the only country to which a person could be removed is one to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion . . .' [then follow the words of r 14(2) (b) of the 1972 rules]

the rules, by para 120 in Pt X, provide:

'A person may apply for asylum in the United Kingdom on the ground that, if he were required to leave, he would have to go to a country to which . . .' [using the same words]

and para 150 in Pt XI provides:

'In accordance with the provisions of the Convention and Protocol relating to the Status of Refugees, a deportation order will not be made against a person if the only country to which he can be removed is one to which . . .' [using the same words].

(My emphasis throughout.) An immigrant who has been refused leave to remain and told he should leave this country by a particular date has clearly been 'required to leave', and could be removed to the country he fears, and would have to go there, if, liable to deportation, he is later the subject of a decision to make a deportation order to that particular country and no other and, on the making of the deportation order, directions are given for his removal to that country and no other and he has a right of appeal against the removal directions on that ground (see HC Paper (1979--80) no 394, para 154). Whatever the position may be under s 15 after a decision to deport has been made, it cannot be said that he is to be removed to a particular country when he has merely been required to leave this country. It is not until his destination has been fixed as that country that it can be said that that is the country 'to which he is to be removed', and then he has his appeal to the tribunal under s 17 because he must be granted leave to appeal by virtue of r 14(2)(b). Both Comyn J and Woolf J refused to give that effect to the rule, and held that it could and should be construed to apply to Enwia and AS when appealing under s 14. Comyn J dealt with the point shortly in a manner which we find some difficulty in following. He said:

'[Counsel for the tribunal] suggested to me in one argument of his that the situation envisaged in r 14(2)(b) had not yet arisen, because there was no assignment or consignment of this applicant to any country, much less to Iraq. I would have been more attracted to that argument had not the proceedings before the adjudicator and the tribunal plainly gone on the footing that removal to Iraq was the essential matter. I have therefore rejected that argument.'

He went on to say that it seemed to him 'pre-eminently desirable that in a case relating to r 14(2)(b) oral evidence from the applicant should be heard', apparently because the test of the applicant's fear was subjective, and only by seeing and hearing him could the appellate authority be satisfied that he could establish that his fear was real, reasonable (which must have meant something different from 'well-founded' in HC Paper (1979--80) no 394, paras 120 and 150), genuine and substantial. Woolf J dealt with counsel for the tribunal's argument rather differently. While counsel for the tribunal conceded that it would be practical to read the rule as in effect giving AS a right of appeal 'because it would enable the tribunal, on the first series of appeals, to determine once and for all the issue whether or not the applicant was entitled to political asylum', he pointed out that there was no question of his being removed at this stage. But the judge, after underlining the words 'to be removed', went on to conclude that although the rule refers to the word 'removed' it should not be confined to that situation:

'It should apply to all three series of appeals, although the matter would not have to be gone into on three occasions. I say that because I think any other result is so undesirable that it cannot be attributed as being the intention of those responsible for making the rules.'

We confess that our difficulty in following these two decisions stems not from the use of the word 'removed' but from the use of the words 'is to be removed' not from any doubt as to the desirability of the issue of entitlement to asylum or of removal to Iraq being decided once at an early stage, but from the ordinary meaning of the language used. We find great difficulty in interpreting 'is to be removed' as the gerundive 'is meet to be removed' (as the Latin used to be translated by schoolboys), or 'is fit to be removed', or 'is liable to be removed'. From the moment that there is a refusal to extend a limited leave the immigrant is on risk of being removed, may be removed, and in the ordinary course of things is very much more likely to be removed, to the country to which he is unwilling to go. But until his case proceeds as far as deportation, there is no 'must be removed' about it. The day of judgment,

'quando caeli movendi sunt et terra'. has not yet come, and we would think that counsel for the tribunal was right in submitting that he is not 'to be removed' to that country until that day comes and there is a direction 'Thou shalt go there', unless there is no reasonably possible purpose in giving the words of the rule their natural meaning.

Counsel for AS has elaborated many arguments, some stronger than others, which counsel for Enwia was content to adopt, in support of the judges' decisions. He called attention to some paragraphs in the handbook on Procedures and Criteria for Determining Refugee Status for their emphasis on the subjective element in fear of persecution but this may explain why r 14(2)(b) imposes the duty to grant leave, and opens the door to a further appeal and perhaps an oral hearing, without helping to determine at what stage the applicant for leave comes within the rule. More to the point is the consequence of supposing that he does not come within the rule until he appeals under s 17 for then he may have had two appeals already, each with two stages, to an adjudicator and then to the tribunal, under ss 14 and 15, followed by a further appeal, to the adjudicator under s 17, before he can demand leave from the tribunal under the rule. And not only is that undesirable, as the judges have pointed out, but it exposes an applicant to the risk of having each appeal determined summarily under r 35 of the 1972 rules, for fresh evidence will not help an applicant if it relates to basic facts not materially different from those on which the issues raised have been previously determined: see Mohammed Taj and Mohammed Riaz v Immigration Appeal Tribunal (30 June 1982), an unreported decision of this court. Furthermore, if r 14(2)(b) is confined to an appellant under s 17, who has been directed to be removed to the country where he fears persecution, the rule could have said so, either by inserting the word 'directed' into the phrase 'is to be removed', or by introducing a reference to 'under s 17' after the word 'appeal'. If the rule is limited as counsel for the tribunal contends, it could and must have read 'where an adjudicator has dismissed an appeal under s 17 . . . if the authority is satisfied that the country or territory to which he is directed to be removed . . .' or with one of those simple additions, or, to be clear beyond argument, with both a reference to s 17 and the phrase 'to which he has been directed to be removed'. We cannot regard the words 'appeal as aforesaid' in the opening sentence of r 14(2) as referring either to 'an appeal under any provision of the Act' within r 14(1)(a), or to an appeal under s 14 or s 14(1) within r 14(1)(b) or (c), because whatever else r 14(2)(b) covers it must cover an application for leave to appeal under s 17. The argument against what counsel for AS picturesquely termed a 'pyramid of appeals' has force, and so has his submission that its prospect might encourage an immigrant to overstay his leave and commit a criminal offence against s 24, rather than appeal straightaway against a refusal to extend his leave. There are, however, many cases in which an appeal under s 17 by an applicant in fear of persecution will be his first appeal--if, for instance, he has asked for asylum on entry into the United Kingdom, or has been recommended by a court for deportation on being convicted of an offence, or for any reason has decided not to appeal under s 14. If an immigrant has a right of appeal under ss 14 and 15 and chooses to exercise it, he will not be in danger of the discretionary remedy of summary determination being exercised against him, because although his unwillingness to go to a particular country for fear of persecution is properly raised at each stage of the appeal process, the issues are not the same, being whether the Secretary of State was entitled under s 14 to refuse to vary the limited leave, under s 15 to decide to make a deportation order, and under s 17 to direct his removal. Counsel for the tribunal frankly and rightly concedes that the earlier an immigrant can have the issue whether he is unwilling to go to a particular country owing to a well-founded fear of persecution decided the better and that in most cases a refusal to extend such a person's limited leave leads to a deportation order and his removal to the country to which he is unwilling to go. But he submits, to our minds convincingly, that there is nothing improbable or unreasonable in providing a 'long stop' measure to prevent anyone being sent back to a particular country without an appeal: and that is a reasonably possible purpose of the rule given its natural meaning. On the best consideration we can give to r 14(2)(b) we conclude with reluctance and regret that although there is much to be said for the interpretation of it by the judges in the Divisional Court, there is more to be said for the construction of it by one Immigration Appeal Tribunal which counsel for the tribunal asks us to accept on behalf of both. The purpose of the rule as expressed in its language is to give a right of appeal to those, and only those, whose destination has been fixed as the country or territory to which they are to be removed. There is no country to which the immigrant is to be removed until then. We would accordingly allow these appeals, including the appeal in the case of AS, unless the decision of Woolf J giving him leave to appeal to the tribunal ought to be upheld notwithstanding that his decision on the application of r 14(2)(b) cannot be affirmed. 3. The remaining point is whether the adjudicator's determination of AS's appeal itself required the tribunal to give him leave to appeal against it. His is, as counsel for the tribunal admitted, a strong case for asylum on the merits. Woolf J said that if it had been his decision he would have granted leave. But he went on to say that he could find no error of law in the determination of the adjudicator, and the argument that it was perverse was not begun to be made out. We agree with him. The grounds on which the respondent's notice relies are:

'1. That there were reasonable grounds for contending that the Adjudicator had failed to direct himself properly as to the proper interpretation of H.C.394 para. 120 and/or had reached a decision which no reasonable Adjudicator could have reached having given himself proper directions in that the Applicant's 'well founded fear of being persecuted' arose because of his political opinions.

dPARTICULARS (a) liThe Applicant had refused when asked to join the Ba'ath political party in Iraq. (b) liBy reason of the said refusal he was liable to be imprisoned. (c) liFurther by reason of the said refusal he was liable to be the victim of false accusations which could be used as an excuse for imprisoning him. (d) lither by reason of the said refusal he would have no protection under the legal system in Iraq. 2. Alternatively, that since the matters upon which the Tribunal had to be satisfied under H.C. 94 para. 120 depended in part upon the assessment of the Applicant's subjective fears the Tribunal should have given leave and considered further an application to hear oral evidence from the Respondent.' AS has had a sympathetic oral hearing before the adjudicator, whose determination and reasons are set out in 17 detailed paragraphs: (1) he found that AS had a fear of being persecuted if he had to go to Iraq and indeed he allowed the hearing of his appeal to be conducted in private (2) he assumed that AS's fear was well-founded (3) he found however that that fear was not for any of the reasons specified in para 120 of HC Paper (1979--80) no 394 (now replaced by a new rule in the same terms), but for the reason that he lacked confidence in the judicial process of Iraq and his fear could not be considered to be of a social or political nature (4) he did not find that he would have to go back to Iraq. On the third finding he was bound to dismiss the appeal. Counsel for AS submits that no reasonable adjudicator would have made that finding, and so determined the appeal, even if the fourth finding was correct, being perhaps justified by his having money in Switzerland and land in Lebanon. But we agree with Woolf J that it was not a perverse finding, and there was evidence to support it. Counsel for AS submits that the reason why AS lacked confidence in the judicial process of Iraq was that he had refused to join the Ba'ath party, and that although the rest of his family were not being persecuted in Iraq, he was accordingly liable to be persecuted, on any pretext such as a false charge of bribery, after what had happened to his father. But the adjudicator found that his refusal to join the Ba'ath party was of relatively minor significance. And we agree with the judge that that was a finding of fact which involved no misunderstanding of the case or error of law, because it was a rejection of AS's case which was open to the adjudicator. As to the tribunal's refusal of leave, counsel for AS submitted that it was the duty of the tribunal to decide whether an appellant's case was hopeless when looked at broadly and with regard to the summary of the proceedings supplied under para 40 of the 1972 rules and to the need for an oral hearing in an asylum case and that unless it was hopeless, and if there was a case to argue, the tribunal ought to grant leave. We cannot accept that view of the tribunal's duty under rr 14 and 16. Having stated, in our opinion correctly, that r 14(2)(b) had no application 'because at the moment it is not proposed to remove the appellant to Iraq' the tribunal expressed its opinion on the merits in this way:

'In the opinion of the tribunal there was sufficient evidence to support the adjudicator's findings of fact, which were not unreasonable, and he does not appear to have misdirected himself in any way as to the law or immigration rules. In the opinion of the tribunal, the determination of this appeal does not turn on any arguable point of law and there are no other circumstances which would merit the granting of leave to appeal. Leave to appeal to the tribunal is refused.'

That opinion also was, in our judgment, correct. There may be special reasons for AS not being deported to Iraq, as the adjudicator indicated, but there were no special reasons for granting him a second hearing, for which he asked in his written grounds. On the only other grounds in his notice of application, relating to the adjudicator's finding about his refusal to join the Ba'ath party and his failure to prove a political reason for his fear of persecution, the tribunal was right to hold that the findings were not unreasonable and involved no misdirection as to the law or immigration rules: see s 19(1)(a)(i) of the 1971 Act which I have read. The adjudicator was entitled to determine that the decision to refuse AS leave to remain here was in accordance with the law and para 120 of HC Paper (1979--80) no 394 and the tribunal's determination to refuse leave to appeal was an exercise of its statutory discretion which had to be erroneous in law or plainly wrong before the court could interfere with it on appeal. This is not an appeal but an application for judicial review, and on an application for judicial review it is the process by which the determination was reached which must be wrong before the court can quash it. We cannot find anything wrong with the process by which these applications for leave to appeal were refused, or that there was anything unfair in the manner in which they were conducted by the appellate authorities. These appeals are important to the respondents because, although only concerned with refusals of leave to appeal, those refusals exhaust their rights of appeal to the appellate authorities. But there remains the possibility that they will not have to return to Iraq, and we hope that nothing said or decided in this court will affect that possibility. However, for the reasons we have given we allow the tribunal's appeals in both cases, setting aside the orders of Comyn J and Woolf J and restoring the orders of the tribunal. These appeals will be allowed, with the consequences that are set out in the judgment of the court which has been handed down.

DISPOSITION:

Appeals allowed. Leave to appeal to the House of Lords refused.

SOLICITORS:

Treasury Solicitor (for the tribunal); Egerton Sandler Summer & Co (for Enwia); Camerons, Harrow (for AS).

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