Etame v. Secretary of State for the Home Department; Anirah v. Secretary of State for the Home Department

"In relation to Mr A;

Issue 1: In country right of appeal

Appealable decision:

27. It is common ground between the parties that both decisions to refuse to revoke the deportation order were immigration decisions within the meaning of s. 82 (1) and (2) (k). Accordingly both were decisions that carried the right of appeal under that section. Both parties therefore submit that the IJ was wrong in the case of Etame to rule that there was no appealable decision in this case.

28. I agree with this submission. Where it is clear that the Secretary of State has made an immigration decision within the meaning of s. 82(1) there is a right of appeal under that
section. A more difficult question might have been whether she is always required to make an immigration decision in response to representations received. This issue does not arise in the two cases before the court but has arisen in immigration cases in the past. The question of whether fresh representations raising an asylum claim should be met with a fresh immigration decision giving rise to a right of appeal was considered by the Court of Appeal in R v IAT ex p SSHD [1990] Imm AR 492; and the High Court in R v SSHD ex p Kazmi [1995] Imm AR 73 see Macdonald 4th edition (1995) para 12.101 and 105. Unguided by further submissions from counsel I rather suspect that a further immigration decision is necessary where a different claim has been made to that determined previously.

? Has made a claim?
31. It is clear that on the literal meaning of the words in s. 92(4) (a) any historic claim to asylum or human rights protection would generate a right of appeal to be determined before removal where an immigration decision is taken. Mr. Husain submits that the literal meaning of the statutory language is to be deployed and he relies on recent Tribunal authority to that effect.

34. Mr. Husain?s principal submission in support of these applications was that both claimants had made asylum claims in the past and therefore had an in-country right of appeal against the immigration decision of refusal to revoke their deportation orders whatever the nature of the representations that led to these decisions. This submission was firmly based on the decision of this experienced AIT and he further invited the court to give weight to this decision because it was a conclusion of a specialist tribunal experienced in immigration and asylum law citing Lady Hale in AH (Sudan) v SSHD [2007] 3 WLR 832 at [30] as applied by the CA in AS and DD (Libya) v SSHD EWCA Civ 289 at [15].

35. Whatever the correct answer to this question of statutory interpretation, I reject this further submission. On a pure question of statutory construction the higher courts will decide the meaning of the words used by Parliament for itself. They do not give weight to the conclusions of the AIT. This is not a case concerned with the application of legal principles to a particular factual context, where the cases show that an experienced AIT can be assumed to have applied the law correctly unless the contrary is shown. The AIT enjoys no inherent advantage over this court in question of statutory construction, indeed the reverse is the case. In addition to the court?s inherent expertise on the principles of statutory construction, it has had the considerable advantage not afforded to the AIT of detailed submissions by eminent counsel on the relevant principles that guide the determination of the question. As it happens, the SSHD has sought to challenge the decision of the AIT in ST (Turkey) and I was the judge who granted permission to bring such a challenge in January 2008.

37. Ms Laing QC for the defendant recognised that the literal construction of the words had the effect and consequences as found by the AIT and relied on by the claimants in their first broad head of argument. She submitted however that there were other principles of statutory construction other than the principle of giving effect to the plain words of Parliament:
i. The words should be construed in the context of the scheme of the statute as a whole.
ii. If the consequences of adopting a literal construction were so peculiar as to be characterised as absurd, then principles of statutory construction required the court to read the words to avoid the absurdity.
iii. In identifying the context of the statute and the mischief to be guarded against it is permissible to have regard to the notes on clauses.

38. On this first issue I prefer the submissions of the defendant. Parliament has carefully defined the cases where there is a right of appeal; the grounds of an appeal that may be advanced and the circumstances when the right of appeal may be exercised in the United Kingdom prior to removal. It is obviously important that there is an in-country appeal in asylum and human rights claims at least engaging Article 3 ECHR. A claimant with a current well-founded fear of persecution may face irreparable harm on return if his or her claim is dismissed and the appeal can only be exercised from abroad but there is no reason why a purely historic protection claim should require or deserve an in country appeal.

39. Whilst there may be cases where the process of admission and removal may give rise to two immigration decisions and potentially two occasions for an appeal, this is no indication that in every case Parliament concluded that every subsequent appeal should be heard in country. If two claimants seek to revoke a deportation order purely on the basis of compassionate circumstances personal to them that do not engage a protection claim too it is entirely illogical that they should be treated differently as to whether their appeal should be heard in country by the irrelevant happenstance of whether one of them had made a protection claim in the past that has no bearing on their present predicament or claim to remain.

40. I have no difficulty in concluding that the consequences of the literal construction of s. 92(4)(a) would indeed be absurd and give rise to arbitrary distinctions between individuals similarly placed for all relevant purposes. Parliament must have intended that the in-country right of appeal was to be given only where there was a nexus between the immigration decision formally generating the appeal and the representations or application that the immigration decision was responding to. Such a construction is consistent with the requirements of an effective remedy where an important right is concerned and consistent with the minimum procedural rights the UK is required to afford asylum seekers whether by extrapolation from the binding international obligation of non refoulement reflected in Article 33(1) of the Refugee Convention or the Procedures Directives promulgated by the European Union to which further consideration will be given later in this judgment. Further this construction is not inconsistent with or unduly restrictive of rights of appeal afforded by statute. In the immigration context it is not unusual to find appeal rights exercisable only from abroad. People who have no recognised right to enter or remain are not generally entitled to enter or remain for the purpose of appealing an adverse decision affecting such rights. In particular it would not be surprising that appeals against a refusal to revoke a deportation order would be heard abroad following removal as consideration of such revocation would normally follow after the decision has been implemented and the person removed in accordance with the deportation order.

?an asylum claim or a human rights claim?

Mr. Husain?s alternative submission was that if s. 92(4) required a nexus between the asylum or human rights claim and the immigration decision that generated the right of appeal that nexus was established in these cases. Both had made representations on human rights grounds, Art 8 in the case of Mr. Anirah and Art 3 in the case of Mr Etame and the latter had made an asylum claim as well. Both had therefore made claims that to remove and exclude them from the United Kingdom would be inconsistent with the United Kingdom?s obligations and both were therefore claims within s. 113. It was illegitimate to construe ?claim? in s. 92(4) by reference to the immigration rules and the procedure for determining whether a claim is a fresh claim or not as the rules cannot govern the meaning of primary legislation. It was further illegitimate to construe the 2002 statute in the light of the amendments that had subsequently been made and had not been brought into force.

53. However, Ms. Laing for the defendant relied on a further principle of statutory construction that Parliament in re-enacting the same words in a statute that have been the subject of prior judicial interpretation intends the words to have the same meaning in the absence of specific provision to the contrary. The principle is recognised in Bennion loc cit at section 201 and Part XIV ?The Informed Interpretation Rule?. A recent application of the principle in a different context is the decision of the House of Lords in A v Hoare [2008] UKHL 6 [2008] 2 WLR 311 per Lord Hoffman at [15]- [16].

55. Ms. Laing submits that Parliament has enacted successive statutory references to claim to asylum against the background of this authority and must have intended that the words used had the same meaning as under the 1993 Act. Whereas it was necessary to explain in Rule 353 the Immigration Rules (cited above at [24]) when a further claim would be treated as a fresh claim using the guidance first given in Onibiyo as the basis, it was not necessary for the draftsman to spell out the Onibiyo definition of claim for asylum in the statute as the informed interpreter would already know what the words meant. This submission therefore responds to two of the most persuasive reasons relied on by the AIT in ST and adopted by Mr. Husain:-
i. This is not a case of the Immigration Rules defining the statute. It is a case of the drafters of the statute being content to adopt and leave alone the judicial interpretation of the same words in an earlier statute.
ii. No assistance can be gained in favour of the claimants? interpretation by the fact that in the 2006 Act the draftsman did expressly define claim to asylum by a reference back to the immigration rules that inter alia explain when a claim is a fresh claim. In this light the 2006 statute was removing ambiguity and clarifying the law but not seeking to change it. For a recent example of such an approach in the context of immigration and asylum see R (Khadir) v SSHD [2006] 1 AC 207 at [35] and [36].

56. In the end, I have been persuaded that these submissions are correct, and that only a first claim to asylum or a fresh claim will result in an in country appeal under s. 92(4). Admittedly there was no body of case law concerned with fresh human rights claims that Parliament might have been reflecting in the 2002 Act, but the similarities between a claim that the UK?s obligations under the Refugee Convention would be violated with the same proposition by reference to the ECHR suggest that the outcome in the asylum context should also apply to the human rights one. Indeed it would be absurd if it did not.

60. In an asylum case, the EU Directive is applied by first requiring the SSHD to consider whether the claim is a fresh one. If it is, it should either be allowed or be subject to a suspensive appeal in country. Whilst the decision as to whether this is a fresh claim is one for the defendant Secretary of State to take, it will be closely supervised by the courts on judicial review. The test is an objective assessment of difference in respect of the materials relied on and the assessment of a different outcome. This has been said not to be a demanding test see WM (DRC) v SSHD [2006] EWCA Civ 1495 at [7]. The court is not substituting itself for the decision maker and if the objective evaluation depends on the assessment of the credibility of the new material the review question focuses whether it was open to the decision maker to reach the conclusion that he did (see further observations of Buxton LJ in WM (DRC) at [16] to [19]). But if the objective analysis of the materials leads to the conclusion that the outcome might well be different it will not be open to a reasonable Secretary of State properly directing himself to certify the claim: see Lord Bingham in Razgar v Secretary of State [2004] AC 368 at [17]. In all cases where part of the analysis of the legality of the decision turns on the assessment of real risk, the principle of anxious scrutiny applied in protection claims requires the court to assess what the new material might well establish. If the court performs this function in a judicial review of a fresh claim decision it is supplying the effective remedy required both by Article 13 of the ECHR and Article 33 of the EU Directive. If it does not I doubt whether it would. Where it has been lawfully concluded that the claim is not a fresh claim, then nothing in the Directive or the Refugee Convention requires a suspensive appeal to be exercised in country.

61. In an Art 8 human rights case such an appeal from abroad may not be futile notwithstanding the absence of the appellant. It is not the case that an Article 8 appeal invariably requires suspensive relief, particular where the decision challenged is a second refusal to revoke a deportation order. In Mr Anirah?s case, for example, it can take into account not only the passage of time since the dismissal of the original appeal, but also the fresh circumstances including the continued existence of family ties and the absence of criminal activity by the appellant. It can also take into account refinements and advances in the applicable law.

62. The defendant?s construction is materially supported by the decision of the CA in ZT (Kosovo) [2008] EWCA Civ 14 (24th January 2008) where the court was considering a case that had been certified under s. 94 of the 2002 Act on the basis that the country of origin was on a white

ist of presumptively safe countries. Sedley LJ was critical of aspects of Home Office in determining such claims and said at [17] to [18] :-
?In my judgment the process required by the 2002 Act and the Immigration Rules where an application has been rejected and then renewed is essentially the following. First, under ?353, the Home Secretary needs to consider whether she now accepts the claim: it is clear from the wording and structure of ?353 that this does not depend on its being a fresh claim within the meaning of the rule: the option of acceptance is untrammelled. If the renewed claim is rejected but contains enough new material to create a realistic prospect of success on appeal, the Home Secretary must so decide and her refusal, being a refusal of a fresh claim, can then be appealed. If, however, the Home Secretary lawfully decides that it is not a fresh claim, she does not need to consider whether, having rejected it, she should also certify it as clearly unfounded; for, not being a fresh claim, its rejection is not appealable at all, whether in-country or out. It is only, therefore, to a first claim that the process of certification is relevant. This will, however, include a certified claim which has been varied or added to by a further application while an appeal against refusal is still open or pending. ?353 does not apply to such a claim, and it is accordingly here alone that the question of lifting an extant s. 94 certificate can arise.

Thus, far from a renewed claim such as the present one going straight into the s. 94 process, its proper destination is ?353. Applying this rule, the Home Secretary should have decided whether now to accept the claim and, if she decided to reject it, whether it was nevertheless a fresh and therefore appealable claim. If it was, the claimant would have secured what he wanted, which was an in-country right of appeal. If it was not, he had no further recourse: his original claim had been certified; he would now have nothing further to appeal; and the Home Secretary would have nothing further to certify?.

For reasons already noted no one suggests that there is no right of appeal at all in these cases, but the reasoning is powerful support for the proposition that what determines whether there is an in country right of appeal is whether there is a fresh claim or not.

Second Issue Fresh Claim in Etame

63. I now return to the question of whether the subsequent representations by Mr. Etame did amount to a fresh claim within the meaning of the rules and the guidance of the Court of Appeal in WM (DRC) noted above.

66. The response of the Secretary of State to this material is contained in the letters of the 15th May 2007, 25th May 2007 and 28th January 2008. Putting the three decisions together it appears to me that the Secretary of State was informing the claimant that his case did not amount to a fresh claim with reasonable prospects of success because:

i) As to the evidence of rape he could complain to the police about this and receive adequate state protection.

ii) It is not unreasonable to expect the claimant to relocate to one of the bigger cities in the Cameroon such as Douala or Yaound? and behave discreetly there so as not to attract police attention.

iii) There is no evidence that societal prejudice against homosexuals has resulted in numerous actual prosecutions of homosexuals although there is some evidence of detention of those accused of sodomy.

67. It is apparent that the claimant?s further material is fresh, credible and was not available to be called at the original appeal hearing either because the experts were not known to the claimant?s former solicitors or the sexual basis of his mistreatment in prison was too difficult for the claimant to address.

71. The difficulty that I have with the decision letters responding to this material to date is that they do not address any of the above considerations. In my judgement the material presented was of sufficient coherence and relevance to undermining the previous appellate consideration that it required these consequences to be addressed. Further the Secretary of State?s own response to the evidence of anal rape would be wholly inadequate if directed to the core allegation that he was raped in a state institution with at least state connivance in sexual torture of homosexuals. If this might have happened sufficiency of state protection would not be an answer to the claim.

72. Beyond these matters there is concern that references to avoiding persecution by discreet behaviour are mis-directions in law, because it is now established by the case of J v SSHD [2006] EWCA Civ 1238 that a person should not be required to give up a way of life that is fundamental to his or her identity as a human being to avoid ill treatment of a severity as to amount to persecution. Such a principle needs to be applied in the context of concrete facts as to way of life and potential risk of serious harm. In this case outside the risk of sexual torture of homosexuals whilst on remand for sodomy charges, I am uncertain as to whether evidence of persecutory harm for those who are not discreet exists for the Cameroon. This merely serves to emphasise the importance of whether the claimant has been remanded in custody in Douala prison as he claims.

73. In my judgement applying the well-established principles of anxious scrutiny to ensure that there is an effective remedy appropriately disposing of the claim to be a fresh claim, the defendant?s decision is flawed and should not stand.

74. The appropriate remedy is for the decision to be set aside and remitted to the Secretary of State for reconsideration according to law in the light of this judgment."