Case No: CO/2090/01
CO/2405/2001 
Neutral Citation Number: [2001] EWHC Admin 1067
IN THE SUPREME COURT OF JUDICATURE
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19th December 2001
B e f o r e :

LORD  PHILLIPS MASTER OF THE ROLLS
LORD JUSTICE SCHIEMANN
and 
LORD JUSTICE CLARKE
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	THE QUEEN ON THE APPLICATION OF THE SECRETARY OF STATE FOR THE HOME DEPARTMENT –v- IMMIGRATION APPEAL TRIBUNAL (CO/2090/01

-and-

THE QUEEN ON THE APPLICATION OF HWEZ-v-SECRETARY OF STATE FOR THE HOME DEPARTMENT & AN ADJUDICATOR (CO/2405/01)		

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John HOWELL QC, Robin TAM and Michael FORDHAM (instructed by The Treasury Solicitor) appeared on behalf of the Secretary of State (Claimant)
Dinah ROSE and Jane COLLIER (instructed by The Treasury Solicitor) appeared on behalf of the Immigration Appeal Tribunal (Defendant)	
Nicholas BLAKE Q.C. and Mark HENDERSON (instructed by Lloyd & Asscs.) appeared on behalf of HWEZ (Claimant)
John HOWELL Q.C., Robin TAM and Michael FORDHAM (instructed by The Treasury Solicitor) appeared on behalf of Secretary of State (defendant)
Eric FRIPP (instructed by Thakrar & Co.) appeared on behalf of Interested party 1
Mungo BOVEY and Danny BAZINI (instructed by Immigration Advisory Service) appeared on behalf of Interested parties 2,3,4,5,6,8,9, & 29
Andrew NICOL Q.C. and Duran SEDDON (instructed by Hackney Law Centre) appeared on behalf of Interested parties 10,11,12,13,14,16,17, 18,27,28,30 & 33
Andrew NICOL Q.C. and Duran SEDDON (instructed by Winstanley-Burgess) appeared on behalf of Interested parties 19 & 32
Andrew NICOL Q.C. and Duran SEDDON (instructed by Gill & Co.) appeared on behalf of Interested parties 20 & 21
Andrew NICOL Q.C. (instructed by Bindman & Partners) appeared on behalf of Interested party 34
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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice  SCHIEMANN:  
1.	This is the judgment of the Court.
2.	In February of last year there landed at an airport in the United Kingdom an aeroplane which had been hijacked on an internal flight in Afghanistan. On board were a number of passengers who sought leave to enter the United Kingdom on the basis that they were refugees and thus entitled to the protection of the Refugee Convention. Their claim to be refugees was rejected by the Secretary of State for the Home Department and they were refused leave to enter. They appealed to a panel of adjudicators who dismissed their appeals. They appealed to the Immigration Appeal Tribunal (“IAT”) which decided to adjourn their appeals indefinitely. Before the court is an application by the Secretary of State for judicial review of that decision to adjourn. He submits that the IAT should have decided the cases one way or another. Broadly speaking his application, which strictly only relates to one of the passengers, no. 19, is supported by all those whose appeals have been adjourned.
3.	The facts were unusual in that, although he refused leave to enter, the Secretary of State neither initiated removal or granted nor granted exceptional leave to remain. He chose a middle course. He indicated that he intended to remove the passengers when circumstances permitted but had instructed the immigration officers not to set directions for their removal until he had given further consideration to wider issues.
4.	The appeals were pursuant to section 8(1) of the Asylum and Immigration Appeals Act 1993 (“the 1993 Act).  The section was repealed by the Immigration and Asylum Act 1999 (“the 1999 Act”) but continues to apply to the present appeal. It provides
“A person who is refused leave to enter the UK under the 1971 Act may appeal against that refusal to an adjudicator on the ground that his removal in consequence of the refusal would be contrary to the [Refugee] Convention.”

5.	The IAT adjourned the hearing of the appeals despite the wishes of all concerned that the hearings should proceed.  It did so because of the view it formed of the task of an appellate tribunal hearing an appeal under section 8(1) in the light of the decision of this court in Massaquoi v Secretary of State for the Home Department [2001] Imm AR 309.
6.	The IAT relied on two separate strands of reasoning to support its conclusion. The first is set out in subparagraphs 1-7 below and the second in sub-paragraphs 
8-13. 
1. 	In Massaquoi the Court of Appeal clearly rejected the submission that the IAT could deal with asylum status if there was to be no deportation.
2. 	That principle applies if there is a grant of Exceptional Leave to Remain (“ELR”) following a refusal of leave since the refusal then disappears.
3. 	Therefore the appellate authority is not concerned to determine status where there is not a continuing refusal of leave to enter
4. 	It follows that the supposed advantages, whether to the appellants or to the respondent, of having a decision whether or not an appellant is a refugee cannot weigh in deciding whether these appeals should go ahead.  
5. 	Since the right of appeal, albeit against the immigration decision to refuse leave to enter, is based on the obligation not to “refoule” contrary to Article 33, it follows that if there is to be no removal the appeal becomes academic.  
6. 	In the present case the evidence indicated that the Secretary of State did intend to remove at some point. In those circumstances, since the appellant would, once removal directions were given, have no further right to appeal, it would be unfair to the refugee claimant to dismiss his appeal now.
 7. 	Since the IAT was not empowered to consider an appeal limited to status and since it would be unfair to dismiss the appeal at present the appeal should be adjourned.
8.	A  person refused leave to enter is not lawfully in the territory of the United Kingdom: see In re Musisi [1987] A.C.514.  A person refused leave to enter is thus, even if he be a refugee, not protected by Article 32 of the Convention, and his being required to leave the United Kingdom is not of itself capable of amounting to a breach of Convention.  His ‘removal in consequence of the refusal’ of leave to enter will be in breach of the Convention if, and (for present purposes) only if, it contravenes Article 33.
9. 	A claimant who is able to establish (by reference to his country of nationality) that he is a refugee within the definition of Article 1A (2) is therefore not necessarily protected from removal from the United Kingdom.  If he is not here lawfully, he is protected only from removal to a place where he would be at risk either of persecution or of refoulement to another place where he would be at risk of persecution.  In order to succeed in an appeal, an appellant under section 8 (1) needs to establish that his removal ‘in consequence of the refusal’ of leave to enter would be removal to such a place.  If he is not in a position to do that, it cannot make any difference whether he is able or unable to establish that he is a refugee.
10. 	An appellant cannot be expected to deal with the effect of all possible removal directions.  He is entitled to be told, clearly, what is the case that he needs to establish.  Until he is told, clearly and irrevocably, the destination to which his removal is envisaged, it is not fair to expect him to argue his case against removal.
11. 	It was wrong on the facts to assume that Afghanistan would be the country to which the Afghanis would be removed.  
12.	The appellant’s task in these proceedings as they stand is impossible.  If he cannot establish that (if he were a refugee) his removal would contravene Article 33, then the question whether he is a refugee is immaterial to the outcome of the appeal.  But it would be grossly unfair, while the respondent declines to specify the place to which he is to be removed, to require him to establish that the place is a place to which he cannot be removed in compliance with the Convention.  On the other hand, to allow him simply to establish that he is a refugee, regardless of any actual or proposed removal, would be an excess of jurisdiction as it would be an appeal not within section 8 of 1993 Act.
13.	It follows that, while the projected removal destination remains open, it is not possible for this appeal to be determined justly or effectively.  The Tribunal therefore adjourned the appeal until such time as the proposed removal destination was indicated by the Secretary of State .
7.	The IAT was represented before us by Miss Dinah Rose who made it clear that, as one might expect, the tribunal was not pressing for any particular interpretation of the legislation. She supported the reasoning which we have set out in the preceding paragraph although she laid more emphasis on the first strand than on the second. 
8.	We were sitting as a division of the Court of Appeal in Osorio and others v Secretary of State for the Home Department when the present application to the Administrative Court was drawn to our attention. It was suggested that the Secretary of State was arguing two incompatible positions in the two cases. It was clear that in any event the two cases covered very much the same ground and, having reserved our judgement in Osorio, we decided to sit as the Administrative Court and hear the submissions in the present case before delivering judgement in Osorio. The parties in Osorio were invited to be represented at the hearing of the present case and to advance any further argument should they be so minded in the light of the submissions in the present case. We then reserved judgement in the present case.  This judgment should be read with our judgment in Osorio, which we have prepared at the same time.
9.	We express our indebtedness to the careful argument of Mr John Howell, Q.C. who appeared on behalf of the Secretary of State in the present case. He put forward the following submissions. 
1.	A person may appeal against a refusal of leave to enter on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom’s obligations under the Refugee Convention. If his removal would be contrary to those obligations, his appeal is entitled to succeed even if the Secretary of State has no current ability or intention to remove him. By contrast, his removal would not be contrary to the Convention if he is not a refugee.  Accordingly his appeal must be dismissed if he is not a refugee.  However, if he is a refugee, his removal to a country in respect of which he is a refugee would generally be contrary to the Convention.  Accordingly, in such a case, if the Secretary of State does not indicate another country (‘a third country’) to which a refugee can be removed without infringing Article 33 of the Refugee Convention, the refugee’s appeal should be allowed.  If the Secretary of State does indicate a third country, however, then the appellant must show that his removal to that country would be contrary to the United Kingdom’s obligation under the Convention.
2.	In this case, therefore, if no. 19 is not a refugee (as the panel of adjudicators held), his appeal should be dismissed.  However, if he is a refugee then, since the Secretary of State had not indicated any third country to which he could be removed, no. 19’s appeal should be allowed.  There was thus no reason for any adjournment.
3.	The IAT’s approach of adjourning the cases sine die benefits those claimants who are not refugees, whose appeals should be dismissed, and penalises any claimant who may be a refugee by postponing the determination of his appeal unnecessarily.
4.	When a person makes a claim for asylum he may not know whether the Secretary of State is able, or intends, to remove him either (a) to a country in relation to which he claims to be a refugee or (b) to any other country.  But that does not mean that he cannot make a claim for asylum.  To make good his claim to asylum a person must first show that he is a refugee.  Admittedly, his asylum claim also necessarily contains the assertion that there is no safe third country to which he can be removed.  But the Secretary of State accepts that, if a refugee’s asylum claim is to be rejected, the onus is on the Secretary of State to indicate to which third country the claimant can be removed.  It would then be for the claimant to show that his removal to that country would be contrary to the Convention.  It would be unreasonable to expect, and Parliament cannot have intended, that a refugee must also prove when making a claim for asylum that he would not be admitted to, or that his life and liberty would be threatened in, each and every other country in the world.
5. 	If the IAT were correct, however, a claim for asylum would have to be refused if the Secretary of State had no current ability and intention to remove an asylum claimant, since the claimant could not establish his claim.  The claimant's appeal against any consequent refusal of leave to enter would have to be dismissed since the claimant could not establish his ground of appeal.  But, as the IAT recognised, the claimant would have no further right to appeal a subsequent decision based on the original refusal of leave to enter.  Accordingly, on the IAT’s reasoning, a claim for asylum and an appeal by a person whom the Secretary of State wrongly considered was not a refugee could fail, and that person could be subsequently removed, without having his appeal that his removal would be in breach of the United Kingdom’s obligations considered on the merits.  Such a result cannot have been intended by Parliament.
6. 	Since leave to enter had been refused in the present cases, Massaquoi was distinguishable and there was jurisdiction to hear the appeals. The IAT should have first considered whether the claimants were refugees – only once it is determined that the claimant is a refugee can the question arise whether it would be in breach of the United Kingdom’s obligations under the Convention to remove him in consequence of the refusal of leave. The IAT should have dismissed their appeals if they were not refugees in the IAT’s view.  If however the IAT took the view that they were refugees then, in the absence of any indication by the Secretary of State of an appropriate safe third country the tribunal should have allowed the appeal and not adjourned it.
7.	To suggest that before an appeal can be effective there must be removal directions is to fly in the face of paragraph 28 of the Second Schedule to the Immigration Act 1971 which provides that pending an appeal any removal directions shall be of no effect.
10.	It is apparent from our judgment in Osorio that the Immigration Appeal Tribunal in the present case took an understandable but in our view erroneous view of the scope of the decision in Massaquoi. For the reasons which we there set out, that case should not be regarded as authority for the proposition that an appellate authority has no jurisdiction to hear an appeal under section 8(1) once ELR has been granted. Once there has been a refusal of leave to enter then the refugee claimant has a right under that subsection to appeal and that right is not taken away by any subsequent grant of ELR still less by a statement by the Secretary of State that he has no intention to remove him in the immediate future.
11.	In the light of our reasoning in Osorio we accept the submissions of the Secretary of State in the present case.  On that basis the injustice against which the Immigration Appeal Tribunal was rightly trying to guard is avoided. The refugee claimant is entitled to have the question, whether or not he is a refugee determined by the appellate authorities.  In these circumstances the argument in favour of adjourning the case indefinitely disappears. 
12.	We therefore grant the Secretary of State’s application for judicial review and quash the decision of the IAT adjourning no. 19’s appeal.  As we understand it, all parties agree that in those circumstances the appropriate relief is that the decision of the IAT to adjourn be quashed and the matter be remitted to the IAT. We think that is the right course to follow.
13.	We also add by way of postscript that we heard some argument in  the case of Mr. Hwez but it was agreed that that case should be adjourned for reconsideration in the light of our decision on this application.