SECRETARY OF STATE FOR THE HOME DEPARTMENT -v- ABBAS

Transcription

1 Neutral Citation Number: [2005] EWCA Civ 992 C4/2004/2160 (A) IN THE SUPREME COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT IMMIGRATION APPEAL TRIBUNAL Royal Courts of Justice Strand London, WC2 4 July 2005 B e f o r e : LORD JUSTICE BUXTON LORD JUSTICE WALL SIR PETER GIBSON SECRETARY OF STATE FOR THE HOME DEPARTMENT -v- ABBAS Defendant/Respondent Claimant/Appellant (Computer-Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street, London EC4A 2AG Tel No: Fax No: Official Shorthand Writers to the Court) MR MANJIT GILL QC and MR EDWARD NICHOLSON (instructed by Wilson & Co) appeared on behalf of the Appellant MR PARISHAL PATEL (instructed by Treasury Solicitor) appeared on behalf of the Respondent HTML VERSION OF JUDGMENT 1. LORD JUSTICE BUXTON: This is an appeal by the applicant, Mrs Eman Abbas, against a decision of the Immigration Appeal Tribunal which was entered regrettably as long ago as 25 August It will however become plain from the history of the matter that that is by no means the longest delay that has unfortunately afflicted these proceedings and Mrs Abbas's life in this country. 2. Mrs Abbas was born in Iraq in She obtained professional qualifications in accountancy in the early 1990s. Disorder and, indeed, military intervention by the central powers occurred in the area where she was born and lived. She was put

2 under pressure to join the Baath Party, but did not wish to do so. In 1992, still under the regime of Saddam Hussein, she was in prison for six months for distributing antigovernment leaflets. In the middle of 1996, according to her evidence which the adjudicator accepted in full, she was imprisoned and beaten and suffered psychological torture. On being released, she had to spend three days in hospital. 3. In February 1997 she escaped to the Kingdom of Jordan. Having been there for four months, she came by air to the United Kingdom on 21 June Three days later she claimed asylum at the Home Office installation at Croydon. It is necessary to record, in order to explain the next important event, that she was not interviewed in respect of that asylum claim until October 2000, that is to say more than three years after she had made her application. While she was in that condition of what can only be described as limbo, she met her now husband Mr Bassim Abbas late in He was a gentleman equally of Iraqi nationality who had been in this country since about Mrs Abbas went through a ceremony of marriage with Mr Abbas under Islamic law in January That was confirmed by a civil marriage that took place in October In February 2001 the Secretary of State reached an adverse decision on Mrs Abbas's asylum application, that then being three years and eight months since she had made her application. An appeal against that refusal was submitted by those then representing Mrs Abbas in May There is some question, or was, as to whether that appeal was submitted out of time. It is of no substantive importance in this case, but it will feature in one highly unsatisfactory aspect of the way in which this matter has been conducted. In June 2002 an application was submitted to the Home Office by Mrs Abbas's now present solicitors that she should be permitted to remain in United Kingdom on the basis of her now subsisting and, as the adjudicator eventually found, very genuine marriage. It is necessary to quote what the adjudicator said about that application in paragraph 31 of his adjudication. He said: "The [Home Office] has dealt with this in an abject manner. Despite numerous requests that this claim be addressed, it failed to respond to any of the letters sent by the appellant's current solicitors. The application was made as long ago as June 2002." (I interpose that the date of the adjudicator's determination was October 2003). The adjudicator continued: "It seems to me that the respondent hopes that if he ignores such applications, the applicants will simply melt away and that they will not pursue their parallel asylum claims. That is a hopelessly unrealistic approach. It also blatantly ignores Article 8." 5. As of course is well known, in 2003 coalition forces entered Baghdad. Saddam Hussein and the regime that he headed was overthrown, and conditions in that country changed dramatically from what they had been when Mrs Abbas made her original asylum application. 6. The hearing before the adjudicator, in the first place appealing against the Secretary of State's asylum determination, took place in October Mrs Abbas was represented by counsel, not either of the counsel representing her before us. The Secretary of State was not represented. There was a preliminary objection made by the Secretary of State that the application was out of time. It is necessary to record what the adjudicator said about that. The appeal had been originally listed for an earlier date and had to be stood out because Mrs Abbas's counsel was unwell. The adjudicator understood that he had received an assurance that the Secretary of State would be represented at the hearing before him; which, I interpose, would seem to be

3 an elementary step, not only because of the importance of the matters concerned but also because the Secretary of State was trying to strike the application out, as I understand it, because it was out of time. The adjudicator said this at paragraph 6 of his determination: "Despite the assurance that the respondent would be represented at the earlier hearing there was no appearance at later hearing, neither did anyone trouble to read the papers carefully and take note of the fact that a careful submission was essential on the out of time allegation if I were to be able to deal with it properly and expeditiously. No such submission was sent to the Appellate Authorities. I cannot understand how a responsible person in the presenting officers' unit at Feltham could possibly have failed to notice that I would need assistance about this allegation, that I had not been provided with any such assistance in the papers to date and that in the absence of representation I would be in difficulties in addressing the matter adequately. I was not willing to adjourn the hearing once again. Past experience shows that telephonic communication to the presenting officers' unit in question usually results in the telephone not being answered. It now appears to be the consistent and misguided policy of the [Home Office] not to send advocates to outlying satellite courts. I must therefore address the question of the out of time allegation on the papers before me." The adjudicator then went through the papers as best he could and considered that the matter should go ahead before him. He then said at paragraph 7 of his determination: "The respondent has dealt with this aspect of the case in a very unsatisfactory manner and I hope never again to see papers prepared in so incompetent a way. I would add that it hardly lies in the mouth of the respondent to complain about delay when it took him over 18 months to send the appeal papers to the Appellate Authorities." 7. That absence of attention to the Article 8 question, that is to say the marriage application, was relevant and is relevant not only to the preliminary question that the adjudicator had to address but also to the substantive claims that were before him. Those claims were two-fold: first of all, that Mrs Abbas should indeed be granted asylum; and, secondly, that she should be permitted to remain in this country with her husband under her rights under Article 8 of the European Convention of Human Rights in favour of family life and marriage. 8. The adjudicator went with some care into the asylum issue and held (and the matter is not now controverted before us) that circumstances in Iraq had so significantly changed since the arrival of the coalition forces that, whatever else might be the position in that country, it could not be said that the authorities of that country would any more persecute a person by reason of reluctance to join the Baath Party, which was the nub of Mrs Abbas's ill treatment. He rejected, therefore, her appeal on asylum grounds. He had then to consider the Article 8 issue in circumstances where, so far as I can see, not only was there no representation by the Secretary of State at the hearing, but also I have seen no sign, nor had anyone representing Mrs Abbas, of any reasoned response, or indeed any response at all, by the Secretary of State, to the marriage application that had been submitted by Mrs Abbas's solicitors more than 15 months earlier. However the adjudicator, drawing on his experience of this jurisdiction, took it that it would be the Secretary of State's case, had he attended to make it, that there should be applied to the case of Mrs Abbas the normal rule that a person already in the United Kingdom who requires entry clearance to come here - and it is agreed that that is the case with Mrs Abbas - should return to her home country and make application from there. 9. The reason for that general rule was identified by Lord Justice Laws in his judgment in R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840,

4 paragraph 26. This paragraph came at the end of a very extensive review of that rule. Lord Justice Laws said: "No matter that the immigrant in the individual case, having arrived here without the required entry clearance, may be able to show that he would have been entitled to one, or even, as was the case in ex p Hashim, that the Home Office actually accepts that he meets the rule's substantive requirements; it is simply unfair that he should not have to wait in the queue like everyone else. At least it is unfair unless he can demonstrate some exceptional circumstance which reasonably justifies his jumping the queue." 10. The position so far as Mrs Abbas was concerned before the adjudicator (and, as we understand it, is still the position) is that there are no relevant consular facilities in Iraq; so it is not possible for citizens of that country who wish to apply for entry clearance in that country to do so. What they are required to do, if they can so arrange it, is to travel either to Syria or to Jordan where the United Kingdom does have appropriate consular facilities, and apply there. 11. It will be seen that that proposition in the case of Mrs Abbas is by no means straightforward. She has been in this country for eight years, during the whole of which period she has been awaiting a final determination of her status. That delay has not been her fault, nor has she at any time concealed her presence or done other than that which the laws of this country require. The same is true of her husband who has been here for 13 years, similarly without, so far as I know, any form of deceit or concealment. It is now proposed that she should travel to her home country - Iraq - and then go from there to Jordan in order to make an application from Jordan. That is to say, while residing in a country which is not her own - to which, as far as I know, she has never been - she has to make an application for re-entry into the United Kingdom. This case was not put in terms, or at all, to the adjudicator because the Secretary of State was not represented before him. Nonetheless, in a way that in more orthodox litigation might have been thought extremely favourable to the Secretary of State, the adjudicator saw it as his public duty to go on and consider the case. He did that in paragraphs 31 to 34 of his determination. In paragraph 31 he set out in terms I have already ventured to cite the unsatisfactory way in which the case had been dealt with by the Secretary of State. He said this in a passage which is the nub of this case: "32 I have no doubt that Mr and Mrs Abbas enjoy family life together, have a deep personal relationship and are very attached to each other. If the appellant were to be removed to Iraq in order for her to make a claim from there for admission as a spouse there would undoubtedly be an interference with her existing family life for the time that it would take for the application to be processed and a decision reached. Whilst it is not for me to anticipate any such application, I see no reason why it would or could be refused. 33 The law about the application of Article 8 in removal cases is contained in a number of recent decisions, the most important of which is that of the Court of Appeal in Mahmood. The court there made it clear that it would only be in exceptional circumstances that the right to respect for family life under Article 8 would not give way to the accepted and legitimate aim of immigration control which has been recognised, albeit note explicitly, as falling within the qualification in Article 8.2. The court did not define what it meant by exceptional circumstances but indicated that there would have to be insurmountable obstacles to the non-resident or not-citizen spouse returning abroad to make an application for return under the Immigration Rules. I have no doubt that there are such obstacles in this unusual case. In the first place, British diplomatic representation in Iraq is severely restricted at present and I doubt that an active entry clearance service is provided. It is true that the appellant could go to another country such as Syria or Jordan where such services do exist but her state of health is such that it would not be reasonable to expect her to do so. It is

5 possible that her husband might be able to accompany her were she to go abroad, but in the circumstances of this case, it seems to me that that would be a futile and pointless exercise. The respondent has known about this application for over one year yet has failed entirely to respond to the appellant's solicitors when they repeatedly asked for information. This is a dereliction of his public responsibilities even if he had been minded to refuse the application. I accept that he is not bound to deal with such an application while an asylum claim remains outstanding but it would have been both sensible and humane to have done so. To persistently ignore the letters from solicitors is not good public administration. I was told by Mr Jackson [counsel for Mrs Abbas on that occasion] that one letter sent to the Deputy Director at the Immigration and Nationality Department had produced the response that the matter had been passed to a case working section to be dealt with. This letter was sent many months ago yet nothing further had been done about the case. It seems to me self evident that the respondent had taken a specific decision to refuse to address the application until the asylum claim had been concluded. At the very least, the respondent should have indicated what his position was about the claim, when it would be addressed and would also have assisted me to know what his attitude was to the claim in the context of the asylum appeal. I was not provided with any such assistance. 34 In all the circumstances, I have no doubt that it would be disproportionate to the legitimate aim of immigration control to require this appellant to return to Iraq or to go to some other country to make an application to return to the United Kingdom. I do not reach such a decision lightly given the decision in Mahmood which is binding on me but all the circumstances point to this being a case where the appellant should not have to travel abroad to make the necessary application under the immigration rules." The adjudicator therefore allowed the appeal under Article 8 of the European Convention on Human Rights. 12. The Secretary of State then made an application to appeal to the Immigration Appeal Tribunal. It is agreed that there must be an issue of law demonstrated to ground the jurisdiction of the Immigration Appeal Tribunal. That issue must be identified in order to give that body jurisdiction. Mr Patel, in his able submissions to the Secretary of State, did not contend otherwise. The grant of permission by a Vice-President to the Immigration Appeal Tribunal was in these terms: "It is arguable that the adjudicator did not pay enough attention to what was said in Amjad Mahmood... about difficulties in getting entry clearance not amounting to 'insurmountable obstacles' to family life. The Home Office may also challenge the adjudicator's conclusions based on the claimant's medical condition." 13. For my part, I find it very difficult to identify issues of law in that grant. The first part of it, that is to say the reference to what was said in Mahmood about difficulties in getting entry clearance, appears to be a criticism of the weight that the adjudicator gave to that point. I have to say that it is not clear that this court in Mahmood did address itself to entry clearance in those terms. However I pass that by. The last sentence - "the Home Office may also challenge the adjudicator's conclusions based on the claimant's medical condition" - seems to me, with respect, to be, at best, ambiguous. The challenge envisaged by the Vice-President may be one of fact. It is certainly now being contended (and was contended before the Immigration Appeal Tribunal) that the evidence before the adjudicator did not justify his conclusion as to the extent of Mrs Abbas's incapacity. Or, alternatively, it may be a criticism simply of the weight given by the adjudicator to this particular factor. Mr Patel did not concede either of those points, but he said that they did not prevent the Immigration Appeal Tribunal from going ahead and considering the appeal. He said that once permission is granted to appeal to the Immigration Appeal Tribunal, unless it was expressly limited to the points mentioned by the Vice-President in granting permission, then it

6 was in effect a grant of permission in respect of all the issues and matters raised in the grounds originally filed by the appellant. 14. I am very doubtful indeed about that submission. One wonders what is the point of a reasoned decision by the person granting permission to the effect that identified points are arguable if the effect of the permission is to grant permission on the whole of the grounds. If that were the intention of the person granting permission it would be extremely easy for him so to say. Furthermore Mr Patel sought to pray in aid in support of this applicant what was said in this court by Lord Justice Mummery in CA [2004] EWCA Civ 1165, paragraphs Lord Justice Mummery said: "39... I wish to say specifically that I do not agree with the submission made by [counsel for the Secretary of State] in paragraph 5 of her skeleton argument where she said this: 'In simple terms, the grant of permission, that is permission to appeal to the Immigration Appeal Tribunal, is the gateway to the tribunal giving an appeal for consideration on the basis of the up-to-date evidence as to the background conditions in the relevant home country and any developments in an appellant's personal circumstances that are relevant to their claim.' 40 In my judgment, grant of permission to appeal to the Immigration Appeal Tribunal is only a gateway to that tribunal considering at a full hearing whether or not there was an error of law in the determination of the adjudicator." 15. Whatever else Lord Justice Mummery was laying down in those paragraphs, I cannot agree that he was viewing the grant of permission in the terms urged by Mr Patel. Indeed, I would read Lord Justice Mummery's judgment as saying the reverse of that. He said it was the permission, but only the permission, that gives the Immigration Appeal Tribunal jurisdiction to consider whether the adjudicator had committed an error of law. It seems to me implicit in what Lord Justice Mummery said that the error that the Immigration Appeal Tribunal has jurisdiction to consider is that identified in the permission. However, despite those doubts, I will assume, without deciding, that the permission granted by the Vice-President in the terms set out was sufficient to grant the Secretary of State permission on the whole of the complaints that he set out. Those are listed at some length in his application to the Immigration Appeal Tribunal. They criticise a number of aspects of the adjudicator's reasoning but, I have to say again, in terms that sound like criticisms of findings of fact or of the weight given to those facts. 16. Pressed on this point, Mr Patel said that the application by the Secretary of State could and should be read as complaining of two points in particular: (1) the adjudicator's finding as to why it was unreasonable to expect Mrs Abbas to travel to Jordan in the course of ill health was perverse or not properly analysed, and (2) that it was perverse of the adjudicator to consider that the obstacles in this unusual case were insurmountable. That, I have to observe, was not said in terms, and nothing really like it was said in terms, in the grounds formulated by the Secretary of State. Nor did it seem to occur to the Vice-President that that was what was being alleged. As Mr Patel rightly accepted, to accuse a judicial officer of perversity, as opposed simply to error, is a very serious matter. It must, in my view, be alleged in terms, so that when the matter comes before the Immigration Appeal Tribunal that body know what it is dealing with. 17. In that connection I would venture respectfully to cite some observations made by Lord Phillips of Worth Maltravers MR in B [2005] EWCA Civ 61 (paragraph 18 of the judgment of the court):

7 "While a court will always wish to ensure that the substance of the case is not lost just because of court drafting, the grounds form the agenda on which the IAT considers the grant of permission and, if granted, conducts the appeal. As this case shows, with the recent limitation of the jurisdiction of the IAT it is particularly important that the grounds should clearly establish that the appeal does at least in form fall within that jurisdiction." Therefore if perversity is alleged it must be alleged expressly. That was not done here. 18. I would therefore hold that no sufficient jurisdictional ground was laid for challenging the adjudicator's determination before the Immigration Appeal Tribunal. The Immigration Appeal Tribunal should have rejected this appeal in limine whether or not a jurisdiction point was expressly taken before it, and the appeal to this court must succeed on those grounds alone. 19. If I am wrong about that, did the Immigration Appeal Tribunal sufficiently find the error of law that is alleged against the adjudicator? Because that issue was never identified properly (and here I revert again to what was said by the Master of the Rolls in B) the Immigration Appeal Tribunal never distinguished satisfactorily between (1) the issue of law as to whether the adjudicator was perverse, and, (2) on the assumption that they were deciding the case themselves, that he was simply wrong. Mr Patel, I think, accepted that that distinction had not been made. 20. True it is that the Immigration Appeal Tribunal engages in a lengthy criticism of the adjudicator's findings indicating that its view would have been, as it was, significantly different, and concluded in paragraph 22 (page 146): "For these reasons we are satisfied that the adjudicator made an error of law in his assessment of the Article 8 claim. In our judgment the claimant's return to Iraq for the purpose of seeking entry clearance in Amman will not violate her right to private or family life." 21. The nature of that error of law is difficult to elucidate from what has gone before. Moreover, as Lord Justice Sedley pointed out in granting permission to appeal to this court, the issue stated by the Immigration Appeal Tribunal (paragraph 22) is plainly the wrong issue, not least if the question is perversity. 22. To find that return to Amman will not interfere with Mrs Abbas's rights to private or family life is simply wrong; plainly it will. No one is suggesting otherwise. The question is, or should be, whether it is proportionate in the context of immigration control. That is the question that the Immigration Appeal Tribunal, at least in paragraph 22, does not seem to have faced. Accordingly, therefore, even if the Immigration Appeal Tribunal was seised of a question of perversity, they made no finding as to whether or not there had been that error, and no finding of error of law in relation to that question. Since the Immigration Appeal Tribunal had no jurisdiction to consider the Secretary of State's appeal, the Immigration Appeal Tribunal's decision must be quashed. The effect of that determination is to leave the adjudicator's determination in place, and binding upon the Secretary of State. That is for the reason set out in the unanimous judgment of this court in paragraph 28 of its judgment in Miftari v Secretary of State for the Home Department [2005] EWCA Civ I would add two further points. First, in Miftari this court accepted that the adjudicator in that case had objectively reached a perverse decision, but because of the lack of the Immigration Appeal Tribunal's jurisdiction this court could not interfere. I wish, out of fairness to the adjudicator, to make clear that that is not my view in this case. In my judgement, he properly directed himself on Mahmood, despite receiving no help at all from the Secretary of State, and took the view that this was a truly exceptional case

8 because of the process of return to make the application out of her own country for a lady in poor health, involving, if family life were to be maintained, her husband uprooting himself. That was an unreasonable step to be demanded of her in order to maintain the principles of efficient immigration control, principles that the adjudicator fully respected. Not only was that decision within his power, I would respectfully agree with it. 24. Secondly in paragraph 35 of his determination the adjudicator said: "I would like the respondent to reflect long and hard on the many failings of his officers in this case." We were disappointed - though not wholly surprised - to be told by Mr Patel that he had no instructions with regard to that sentence in the adjudicator's determination. That will not do. This court has a responsibility to ensure that criticisms made by judicial officers, for whom it is responsible, are treated with proper respect. It also has a responsibility to ensure that the judicial process is conducted economically and efficiently, something that is not likely to be achieved if there is non-attendance upon adjudicators in circumstances such as described in this case. 25. The time has come for something more than protest. The court therefore requests that the Treasury Solicitor will furnish to the Permanent Secretary to the Home Office a copy of the adjudicator's determination and of this judgment. I, for my part, will be disappointed if the Permanent Secretary is not able to assure the court that the failings noted by the adjudicator have been corrected, and that the policy of nonattendance on adjudications is being reviewed. 26. LORD JUSTICE WALL: I entirely agree with my Lord's judgment, but do not wish to add anything. 27. SIR PETER GIBSON: I also agree. I add a few words of my own on one point which has arisen in the course of this appeal and to which Lord Justice Buxton has referred. 28. The grant of permission to appeal from the adjudicator's decision to the Immigration Appeal Tribunal may be limited to a particular ground or particular grounds or given generally. The practice is for reasons to be given for the decision and sometimes those reasons are given in general terms to explain why permission has been given or refused. In the present case the Vice-President has given two reasons which cover some but by no means all the grounds of appeal on which the Secretary of State sought to appeal. But the operative part of the Vice-President's order was simply in these terms: "permission to appeal granted". It seems to me that good practice requires that the person taking the decision to grant permission to appeal, where there are several grounds of appeal and where that person wishes to comment on only some of the grounds, should specify whether he is granting such permission limited to those matters to which he has adverted specifically or whether he is granting permission to appeal generally, so as to avoid the difficulty which arose in the present case. However, despite the doubts which I share with Lord Justice Buxton as to whether the Vice-President did intend to grant permission to appeal quite generally on a basis favourable to the Secretary of State, for the reasons given by my Lord with which I am in full agreement, I, too, agree that this appeal should be allowed. 29. I specifically endorse the comments which my Lord has made at the end of his judgment. Order: Appeal allowed with costs.