Court of Appeal

Published September 09, 2008

TB (Jamaica) v Secretary of State for the Home Department

Before Lord Justice Thorpe, Lord Justice Rix and Lord Justice Stanley Burnton

Judgment August 14, 2008

It would be wrong as a matter of principle if the Secretary of State for the Home Department could circumvent the decision of an immigration appeal tribunal by an administrative decision.

The Court of Appeal so held in a reserved judgment when dismissing an appeal brought by the Home Secretary against the decision of Mr Justice Bean on November 30, 2007, in which he held that it was an abuse of process and unlawful for the Home Secretary to have refused to grant refugee status to TB and five years leave to remain in this country following his successful appeal to the Asylum and Immigration Tribunal.

Mr Robert Jay, QC, for the Home Secretary; Mr Manjit Gill, QC and Miss Joanne Rothwell for TB.

LORD JUSTICE STANLEY BURNTON said that TB was born in Jamaica in 1977. He first arrived in this country in 1998. According to the Home Secretary he was found to be in possession of 17 packages of cannabis, although that was denied by him. He was refused leave to enter and removed.

In 1999, he again arrived. He was refused leave to enter but granted temporary admission. He absconded and was subsequently arrested for supplying class A drugs.

In 2001, he began a relationship with a dual British and Irish national and in 2002 their daughter was born. In 2003, he pleaded guilty to the drugs supply offence and breach of bail, and was given a custodial sentence.

TB married on the same day as the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order (SI 2004 No 1910) came into force. It specified the offence of supplying class A drugs as an offence which consituted a particularly serious crime within the meaning of section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002.

The Home Secretary notified TB of his intention to make a deportation order. TB claimed asylum and alleged that his removal would breach his human rights under articles 2, 3 and 8 of the European Convention on Human Rights. The Home Secretary refused both claims. The decision letter did not refer to section 72 and nor did it contend that TB was a danger to the community.

TB appealed to the Asylum and Immigration Tribunal before Judge Goldfarb. She allowed TB’s appeal on both grounds. The Home Secretary did not seek to have that decision reconsidered or set aside.

In accordance with the normal policy, TB should have been given five years leave to remain. None the less, the Home Secretary informed TB’s solicitors that she refused asylum and granted him six months discretionary leave, the practical consequence of which was that if he wished to remain he had to regularly apply for an extension of that leave.

Mr Justice Bean held that the decision of the Home Secretary was an abuse of process.

As a matter of principle, it could not be right for the Home Secretary to be able to circumvent the decision of an immigration appeal tribunal by administrative decision. If she could do so, the statutory appeal system would be undermined and would be inconsistent with the statutory scheme.

Lord Justice Rix and Lord Justice Thorpe agreed.

Solicitors: Treasury Solicitor; Irving & Co, Camden Town.

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