No Section 83 Right of Appeal for Asylum Decision

MS (Uganda) v Secretary of State for the Home Department [2016] UKSC 33 (22 June 2016)

This case is somewhat academic because it relates to the construction of section 83 of the Nationality, Immigration and Asylum Act 2002. The provision laid down an additional right of appeal specific to asylum claims and has been repealed by section 15(3) of the Immigration Act 2014 by a broader right of appeal but remains applicable to a limited class of persons such as MS. The appeal went to the Supreme Court against the decision of Elias, Lewison and Floyd LJJ, [2014] 1 WLR 2766, who dismissed MS’s appeal. Lord Neuberger (President), Lady Hale (Deputy President), Lord Wilson, Lord Hughes and Lord Toulson came to the same conclusion but for different reasons. MS was granted leave as a student in 2010 until April 2012 but before its expiry he claimed asylum on the ground that his family’s alleged political activities in Uganda would cause him to be mistreated. The claim was rejected. His leave was not varied but any existing leave was not curtailed. The question was whether under section 83 of the 2002 Act it was necessary for the relevant grant of leave to remain to be contemporaneous with or to post-date the refusal of the asylum claim in order for MS to benefit from the right of appeal.

His brother was a terrorism suspect in Uganda and he argued his brother’s situation put him in jeopardy and he faced a real risk of persecution in the event of return. When he was refused asylum, MS had approximately about 11 weeks of leave to remain as a student. The First-tier Tribunal dismissed his claim to refugee status. Its jurisdiction was not in doubt until the Upper Tribunal held he had no right of appeal. The Court of Appeal found likewise. Giving the Supreme Court’s unanimous judgment, on the “shortly-stated” question of statutory construction Lord Hughes remarked: “the brevity with which the issue can be identified does not reflect the intrinsic difficulty of resolving it.”

Lord Hughes held at para 21 that where an asylum seeker’s application had been refused the applicant could only avail an appeal under section 83 on the condition that he/she had limited leave totalling more than 12 months counting from the day of refusal, whether the leave was the result of a single grant or more than one. If, when the appeal was sought, any current leave had 12 months or less to run from the date of refusal of the asylum claim, or from a later grant, then the applicant was left to an appeal under section 82 in due course.

The theme is important because of the significance of refugee status and related legal consequences where it is positively found. Similar issues had recently also been aired in the Supreme Court in the context of UASC in TN (Afghanistan) v SSHD [2015] UKSC 40 (see here) where no right of appeal existed because of the claimants’ lawful continued presence until the age of majority.

MS agued that a general right of appeal is given under section 83 to those whose claim to refugee status has been refused. Limiting that right under section 83(1)(b) – which uses the words “been granted leave to remain or enter the [UK] for a period exceeding one year (or for periods exceeding one year in aggregate)” – should be construed generously/broadly because of the significance of refugee status and the UK’s obligations pursuant to international law. Restricting the right of access to the tribunal was an unviable construction because the natural meaning of statute was such that any grant(s) of leave to remain totalling more than 12 months brought MS within section 83 and afford him the right of appeal. It was irrelevant that the grant of leave to remain came before or after the refusal of the asylum claim and a grant or grants that had expired before the asylum claim was made would also produce a right of appeal. MS also contended the alternative construction advanced by the home office – that subsection (1)(b) applies only to grant(s) of leave to remain made after the refusal of the asylum claim – would be tantamount to making the right of appeal hinge on the leave to remain decision rather than, as it is clearly designed to do, on the decision to refuse asylum.

As held below, the home office said that under the true construction of section 83 the grant(s) of leave to remain needed to be contemporaneous with or to post-date the refusal of the asylum claim. The approach accorded with statute’s purpose, which was to give a right of appeal to those without one under section 82 and in the reasonably near future. Four interpretations/constructions, two each preferred by each party, were of particular relevance:

  • (i) it was MS’s primary case that any grant(s) of leave to remain adding up to more than 12 months brought him within section 83, whenever they occurred and whether or not they had expired before the asylum claim was made and determined.
  • (ii) he alternatively argued grant(s) of leave to remain adding up to more than 12 months brought him within the section providing such leave is still current at the time of the determination of the asylum claim.
  • (iii) the fallback position of the home office was that grant(s) of leave to remain brought MS within the section providing that such leave totalled more than 12 months counting from the date of refusal or later grant, and whether the grant(s) were made before or after refusal.
  • (iv) as held by the Upper Tribunal and the Court of Appeal, and as primarily stressed by the home office, grant(s) of leave to remain totalling more than 12 months bring the claimant within the section if but only if they (and all of them if more than one) are either contemporaneous with or post-date the determination of the asylum claim.

The Supreme Court’s view was that though correct Elias, Lewison and Floyd LJJ had like the Upper Tribunal in Win (section 83 – order of events) [2012] UKUT 365 (IAC) gone further than they should have done by adopting construction (iv); it is not clear that construction (iii) was put before either court, and the appellants in both cases failed to meet the test whichever was adopted.

Past official flirtations with the “nexus” argument – contending that the refusal of the asylum claim must be logically connected to the grant of more than 12 months’ limited leave – were disclaimed by the home office because the position had been dismissed in AS (Somalia) v SSHD [2011] EWHC 627 (Admin) and to that extent the Upper Tribunal was wrong to have been oblivious to that ruling. A failure the Court of Appeal (Maurice Kay, Sullivan and Davis LJJ, [2011] EWCA Civ 1319) subsequently upheld as plainly correct.

Moreover, as discerned by Elias LJ in the present case, three differences are observable between section 82 appeals in comparison to those under section 83. First of all, the home office cannot in relation to an asylum rejection under section 83, certify a claim [under section 82] as clearly unfounded under section 94 of the 2002 Act. Secondly, the home office cannot use section 96 to prevent repetitious appeals (if the grounds advanced ought to have been made in response to an earlier decision) in relation to section 83 appeals but can exercise this power with respect to section 82. Finally, by section 78, the suspensive effect of an appeal pursuant to section 82 was to preclude the appellant’s removal until the appeal’s determination but this did not benefit appeals under section 83.

Lord Huges observed that although section 83 lends itself to being read, as a matter of language, in numerous ways. Finding that some readings are more natural than others, his Lordship held:

14. … It is, however, not the most natural reading of it to construe subsection (1)(b) as if it read “he has been granted at any time, now or in the past, leave to enter or remain …”, as construction (i) would entail. Nor to my mind is it the most natural reading of the words that subsection (1)(b) must be taken as if it said “he has subsequently been granted leave to enter or remain …”, as construction (iv) would require. Section 83 appears to focus on the time when the asylum claim has been rejected, for it is concerned with appeals against this decision, and then to ask whether, when a claimant wishes to appeal, the condition in subsection (1)(b) is met.

15. This characteristic of section 83 suggests that it is concerned with grants of leave to remain which are operative after the refusal of asylum, but not with those which have existed in the past but which are spent before any question of asylum arises. On its face, however, the section (1)(b) condition of having been granted more than 12 months leave might be met by a grant or grants which came before the refusal of asylum, as well as by ones which came afterwards.

The first problem for MS was that subsection (1)(b) clearly does not apply where there is no grant of leave at all. Form and content were against his stance and it was clear that section 83 did not, as suggested, first create a general right of appeal against refusal of asylum, and then make that right subject to a limitation contained in subsection (1)(b).

Moreover, as argued, MS’s primary case would allow a past and expired grant of limited leave to open the door to his appeal against refusal of asylum. No conceivable reason existed for Parliament meaning to provide such a class of claimant with a separate section 83 right of appeal and the outcome in R (Omondi) v SSHD [2009] EWHC 827 (Admin) confirmed this as the right approach. It was held at para 21:

The purpose of section 83 is tolerably clear. It is to provide an additional – and more targeted – right of appeal beyond the ordinary one created by section 82. It is to provide a vehicle for the determination by the tribunal of refugee status, when that status is asserted but rejected by the Secretary of State, in those cases where no such vehicle otherwise exists, nor will exist within a reasonable time.

It was clear that section 83 is (a) designed to create an extra right of appeal for those who have a longer period of leave to remain and who would otherwise have no section 82 vehicle which they could use and (b) aimed at this class of applicant, so that he should not be deprived of his right to challenge the refusal of his asylum claim where that refusal is not accompanied by a decision to remove him. Moreover, as seen in FA (Iraq) v SSHD [2010] EWCA Civ 696, section 83 targeted people as regards whose cases “the immigration position” would not be reconsidered in the near future. Furthermore, as held in TN (Afghanistan), in circumstances where the environment in the home country may be fluctuating rapidly, it was sensible for tribunals not to become burdened with matters which fell to be reviewed before long in any event. As asserted by the home office, it was clear that construction (iii) most nearly served the purpose of statute because:

22. … That focuses on identifying those claimants in whose cases there will not be a section 82 vehicle for an appeal on refugee status for longer than the 12-month period which Parliament has set as the relevant one. Thus the claimant may avail himself of section 83 if he has limited leave totalling more than 12 months counting from the date of refusal or, if later, the date of grant (or, a fortiori, if he has been granted indefinite leave). That is so whether or not his leave started before the refusal, and whether his leave is the result of a single grant or of more than one. If, however, when he seeks to appeal, any current leave has 12 months or less to run from the date of refusal of the asylum claim, or from a later grant, then he is left to his section 82 appeal in due course.

The fact that the provisions of section 96 for prevention of repetitious appeals did not apply to an appeal within section 83 did not point to the correctness of constructions (i) and (ii). MS did not have much luck with his counter-points and dismissing his appeal the court held:

23. Conversely, neither construction (i) nor (ii) serves the purpose of the provision at all. Both would bring within section 83 those who do not need it, because there will, within a relatively short time, be a further decision of the kind which, if it involves an end to leave to remain, will bring with it a right to appeal under section 82, whilst if it extends leave to more than 12 months from refusal the claimant can take advantage of section 83. Construction (iv) would serve this statutory purpose, but would, as explained above, leave out some whose case falls within that purpose.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Africa, Appeals, Asylum, Immigration Act 2014, Persecution, Refugee Convention, Terrorism, Tribunals, UKSC and tagged , , , , , . Bookmark the permalink.

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