APPEAL No. [2003] UKIAT 0173

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 3 December 2003

Date Determination notified: 30 December 2003

Before

Mr J A O’Brien Quinn, QC (Chairman)
Miss B Mensah
Mr A Smith

Between

	APPELLANT	
and	 	
SECRETARY OF STATE FOR THE HOME DEPARTMENT	RESPONDENT	

DETERMINATION AND REASONS

1.	The appellant, a female citizen of Sudan, born on 5 June 1971, appeals against the determination of an Adjudicator (Mr J C Grant-Hutchinson) who, in a determination promulgated on 15 May 2003 dismissed her appeal on asylum grounds, but allowed her appeal on human rights grounds, against the decision of the Secretary of State, dated 7 November 2001, refusing her application for asylum.

2.	The appellant was represented by Ms K Cronin, of Counsel, instructed by Deighton Guedalla, Solicitors, while Ms J Bracken, Home Office Presenting Officer, represented the Secretary of State.

3.	The grounds of appeal challenge the determination of the Adjudicator, claiming that the Adjudicator had erred in law on a number of points and that her reasons were erroneous and unreasonable and that in the light of the legal errors claimed to have been committed by the Adjudicator, the appeal against the refusal of asylum stood a real chance of success.

4.	Leave to appeal to the Tribunal was granted by the Tribunal (HH Judge N Ainley) on 2 July 2003, which decision was promulgated on 29 July 2003.

5.	When the appeal opened before the Tribunal on 3 December 2003, Ms J Bracken, on behalf of the Secretary of State, submitted that the appellant’s appeal should be treated as abandoned, in the light of the terms of Section 58(9) of the Immigration and Asylum Act 1999.

6.	Ms Bracken’s contention was that, as the appellant had been granted leave to remain in the United Kingdom, from 16 July 2003 to 16 July 2006, her appeal, which was pending on 16 July 2003, under the provisions of Section 58(9) of the Immigration Asylum Act 1993, it must be treated as abandoned.

7.	Ms Cronin, in reply, submitted that, while what Ms Bracken had submitted was, in general, the situation, the fact that the Tribunal, by the grant of leave to appeal against the determination of the Adjudicator, on 2 July 2003, which should be considered as the operative date,  and not the date of promulgation, 29 July 2003, had brought about an “event” after 1 April 2003, which, in view of the definition of an “event” in paragraph 4(3)(b) of the Nationality, Immigration and Asylum Act 2002 (Commencement No 4) Order 2003, and any provisions of the 2002 Act, referring to those sections, as well as subordinate legislation, applied to the appeal before the Tribunal.

8.	Her submission was, that, in view of the fact that leave to appeal had been granted, after 1 April 2003, before the grant of leave to remain on humanitarian grounds had been granted, on 16 July 2003, in view of the fact that, whereas under Section 104(4) of the Nationality, Immigration and Asylum Act 2002, an appeal was likely to be treated as abandoned if the appellant is granted leave to remain in the United Kingdom, such an appeal came under Section 82(1) of the 2002 Act, but, as Section 82(1) makes clear that that section is directed to appeals to Adjudicators, and as the appellant’s appeal was no longer an appeal to an Adjudicator, but was an appeal to the Tribunal, it was not caught by the operation of Section 104(4) of the 2002 Act, and that the appellant’s appeal should not be treated as abandoned.

9.	She submitted that, if, on 16 July 2003, leave had not been granted to the appellant, it would still have been an appeal to an Adjudicator and would fall to be treated as abandoned, but that, once it became a Tribunal appeal, it could no longer be treated as abandoned, and that the Secretary of State’s motion for the appeal to be treated as abandoned must fail.

10.	We heard Ms Bracken, in reply, and she submitted that Ms Cronin’s argument failed, in that Section 58(9) of the 1999 Act was carried over by the (Commencement No 4) Order 2003 and that, in those circumstances, the appeal, being pending under the old appeal’s provisions, is to be treated as abandoned.

11.	We then considered all the submissions made to us on this particular aspect, and announced in open court, that the objection raised on behalf of the Secretary of State succeeded and that the appeal of the appellant must be treated as abandoned.  We stated that we would give our reasons in writing at a later date.

12.	The reasons for allowing the Secretary of State’s application for the appeal to be treated as abandoned are as follows:

13.	The appellant, on 19 November 2001, filed notice of appeal against the refusal of the Secretary of State to grant her asylum under Section 69(2) of the Immigration and Asylum Act 1999.  Her appeal was heard by an Adjudicator on 28 April 2003, and dismissed in a determination, promulgated on 15 May 2003.

14.	The appellant’s representatives then filed an application for leave to appeal against the determination of 15 May 2003, on 26 May 2003.   However, an application was granted by the Tribunal, on 2 July 2003, and that decision was promulgated on 29 July 2003.  In the meantime, the Secretary of State, on 16 July 2003, granted the appellant humanitarian protection leave to remain in the United Kingdom on 16 July 2003.

15.	When the appeal, filed on 26 May 2003, came on for hearing before the Tribunal, on 3 December 2003, Ms Bracken, the Home Office Presenting Officer, submitted that, as the appeal of the appellant was pending, the provisions of Section 58(9) of the 1999 Act, applied, which Section appeared in Part (iv) of the 1999 Act, which part of the Act continued to have effect, in relation to events which had taken place before 1 April 2003, when the Nationality, Immigration and Asylum Act 2003 came into force, and that that being so, the appellant, having been granted leave to remain in the United Kingdom, her appeal is to be treated as abandoned.

16.	Ms Cronin’s submissions, in reply, are, as set out in her Skeleton Argument, which read as follows:

“8.	It is the Appellant’s case that the Tribunal’s grant of leave to appeal, as a decision made in this case, was an ‘event’ after 1 April 2003 as defined by paragraph 4(3)(b) of the nationality Immigration and Asylum Act 2002 (Commencement No 4) Order 2003.  This has the effect that from the ‘event’ (the leave decision on 2 July 2003), sections 82-99 and 101-103 and any provision of the 2002 Act referring to those sections as well as subordinate legislation applied thereafter to this case.

9.	Pursuant to Section 104(4) of the 2002 Act, an appeal is likewise to be treated as abandoned if the appellant is granted leave to enter or remain in the UK.  The appeal in question concerns the appeal under Section 82(1) of the Act.  As the terms of Section 82(1) make clear, that section is directed to appeals to Adjudicators.  It is the Appellant’s case that any ouster provision is to be strictly construed, and that in the circumstances of this case where leave to appeal had been granted, that as on 16 July, when humanitarian leave was granted, the Appellant’s appeal was no longer an Adjudicator, but a Tribunal appeal and therefore not caught by the operation of section 104(4).  It follows that if on the 16 July 2003, that Appellant’s case has not been granted leave, it would then have been an Adjudicator appeal and it would be taken to be abandoned.  The Appellant submits that the appeal is extant, and that the Tribunal has jurisdiction to determine this appeal.”

17.	Having considered all the points raised, argued before us, the situation, as we see it, is as follows.

18.	The appellant’s appeal was commenced under the provisions of the 1999 Act, and continued after the 2002 Act commenced on 1 April 2003, culminating in the dismissal of the appellant’s appeal on 15 May 2003.   The provisions of the 2002 Act came into force on 1 April 2003, but, by virtue of the 2002 Act (Commencement No 4) Order 2003, paragraph 3(1) of which, reads as follows:

	“Subject to Schedule 2, the new appeal provisions are not to have effect in relation to events which took place before 1 April 2003 and, notwithstanding their repeal by the provisions of the 2002 Act commenced by this Order, the old appeals provisions are to continue to have effect in relation to such events”,

	the provisions of the 1999 Act continue to have effect in relation to her appeal.

19.	This is clear also from paragraph 4 of the Commencement No 4 Order 2003 where, at sub-section (b)(iv) it is stated that the “old appeals provisions” includes part (iv) of the 1999 Act, and, at sub-paragraph (c), it is stated that the “Old Immigration Act” means, among other Acts, the 1999 Act.

20.	Further, although paragraph 3(1) sets out the general transitional provisions, it is by virtue of  paragraph 3(2), subject to Schedule 2.  However, while Schedule 2 sets out certain transitional provisions rating to the 2002 Act, none of these provisions adversely affects the generality  paragraph 3(1) as it applies to the matter before the Tribunal in this appeal.
 
21.	Thus, the application by the appellant, on 26 May 2003, for leave to appeal against the determination of the Adjudicator, although made after 1 April 2003, was made under the 1999 Act, and the determination of that application by the Tribunal, on 2 July 2003 and promulgated on 29 July 2003, was done under the provisions of the 1999 Act.   Further, under the 1999 Act, Section 58(5), the appellant’s appeal was still pending.

22.	Thus, although the 2002 Act came into force on 1 April 2003, and the new appeals provisions, which means Sections 82-99 and Sections 101-103 of the 2002 Act, also came into force those sections did not apply to the appellant’s appeal as, by virtue of paragraph 3 of the (Commencement No 4) Order 2003, the provisions of Section 58(9) of the 1999 Act, still applied, under which section and sub-section, the appeal of the appellant she having been granted leave to remain in the United Kingdom, is to be considered as abandoned.

23.	Accordingly, Ms Cronin’s submissions that the grant of leave by the Tribunal on 2 July 2003 and promulgated on 29 July 2003, constituted an event which brought Sections 82-99 and Sections 101-103 of the 2002 Act, into effect, fails.

24.	Therefore, for the above reasons, we upheld the submission of Ms Bracken and treated the appellant’s appeal as abandoned.

25.	We would just add, that had Ms Cronin’s submission that the  appeal should not be treated as abandoned, had been successful, we would, in all probability, have found in her favour based on the other grounds of appeal lodged by her, and on which leave to appeal had been granted.

26.	However, as the appellant’s appeal is being treated as abandoned, those considerations do not apply.

								J A O’Brien Quinn QC
								Chairman