Secretary of State for the Home Department v IA (Turkey) [2010] EWCA Civ 625

CA (Civ Div) (Wilson LJ, Sullivan LJ, Sir Paul Kennedy) 15/6/2010

Alan Payne for the Secretary of State

Rebecca Chapman for IA

The secretary of state appealed against the determination of a Senior Immigration Judge that the secretary of state had acted unlawfully by refusing to grant IA further leave to remain in this country.

IA had been convicted and sentenced to 14 years imprisonment for possessing Class A drugs with intent to supply. In 2003 his application for asylum was refused and a deportation order was to be made against him; he appealed against both decisions. The Adjudicator allowed the appeals on the basis that IA’s return to Turkey would breach his Article 3 rights. Agreeing with the Adjudicator, the Asylum and Immigration Tribunal also stated that although T could be refouled to Turkey under the Convention relating to the Status of Refugees 1951 (United Nations) art.33 due to his conviction, art.33 did not exclude his consideration as a refugee and did not affect his human rights to remain pursuant to art.3.

In 2004, following this determination, the Secretary of State refused IA’s claim for asylum, deciding that in light of Article 33 he was not entitled to indefinite leave to remain, and granted him instead 6 months discretionary leave. She also stated that the decision was not an appealable decision under section 82 of the Nationality, Immigration and Asylum Act 2002.

IA did not apply for judicial review of this decision, but did appeal against the Secretary of State’s decision in 2008 not to allow his application for an extension of his discretionary leave. In refusing his appeal the judge held that although the Secretary of State’s decision in 2004, not to grant him asylum, was unlawful IA was time barred from challenging it. Senior Immigration Judge McKee allowed IA’s appeal, holding that TB(Jamaica) applied and as such the 2004 decision not to grant asylum was unlawful.

Sullivan LJ, giving the judgment of the court, held that:

1) The secretary of state's first decision not to grant asylum was not unlawful. The decision was not inconsistent with the AIT's determination, as art.33.2 had been raised on behalf of the secretary of state before the AIT but the AIT had left the point open as it felt it was unnecessary to resolve it, TB (Jamaica) distinguished. It followed that the secretary of state could refuse T further leave to remain in the UK.

(2) T could not challenge the secretary of state's first leave decision at such a late time. That decision was not unlawful on its face, and it had been treated by all parties as a lawful decision unless and until it was quashed by a court of competent jurisdiction.

(3) The AIT did not have jurisdiction to consider the lawfulness of the first leave decision. It was common ground that it was not an "immigration decision" under s.82(2) of the 2002 Act. There was therefore no right of appeal against it to the AIT. An earlier immigration decision by the secretary of state that could have been appealed to the AIT but was not so appealed or had been appealed out of time had to be treated by all parties as lawful. Therefore, it was impossible to see how it could be within the AIT's jurisdiction to review the lawfulness of an earlier decision by the secretary of state that was not an immigration decision, that could not have been the subject of an appeal to a tribunal and that could have been challenged by judicial review.

The case was remitted to the AIT to consider the remaining grounds of appeal.