Problems entering Palestinian Territories not enough to prevent removal from UK

17 June 2010 by

The Gaza Strip

[2010] UKSC 25, 16 June 2010 – read judgement

The Supreme Court has ruled against a man who challenged his immigration decision to remove him to the Palestinian National Authority on the basis that he could not go back as he would not be allowed back in to the place of his birth.

The challenge was based on the contention that the “country” or the “territory” stated in the notice of the decision was not one that satisfied the requirements of the 1971 Immigration Act 1971, and therefore the decision was unlawful under Section 82 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”)

The appellant, who was born in Gaza in 1985, had been living in Libya since the age of 5. In 2007 he entered the UK clandestinely in a lorry, and subsequently claimed asylum. This was rejected by the Secretary of State. His appeal of this decision was dismissed by the Immigration judge. She also dismissed this appeal insofar as it was based on the contention that the original immigration decision to remove him was “not in accordance with the law”.

The argument advanced was that removal directions could not lawfully be given to remove the appellant to the Palestinian Territories pursuant to Schedule 2 of the 1971 Act, since it was not a country to which there was reason to believe that the appellant would be admitted. Evidence was advanced on behalf of the appellant that a Palestinian could not return to the Palestinian Territories without an ID card. The appellant had no birth certificate, no living parents and no ID.

Central to this appeal was the question whether the specification of a particular country in a notice of an immigration decision to remove an illegal entrant within the meaning of the 2002 Act is an integral part of the decision. If it is, then there is a right of appeal under the Act if it is not in accordance with the law to specify that particular destination country.

Appeal dismissed

The Supreme Court dismissed the appeal. In an immigration decision, the Secretary of State needs to do no more than show that the destination country or territory to which he proposes to remove an illegal entrant is one to which there is “reason to believe” that the illegal entrant will be admitted within a reasonable time of the making of the immigration decision.

The language of Section 82(2)(h), when read in its statutory context, does not support the argument that the proposing of a destination country is an integral part of an immigration decision. The only case where Parliament has provided a right of appeal against a decision to remove by reference to the potential illegality of the removal, is where the removal would breach the Refugee Convention or the ECHR. The 2002 Act does not permit a challenge to removal directions on any grounds: this is shown by the fact that when Parliament has provided in other legislation for a right of appeal against removal directions, it has done so in express terms.

On practical and policy grounds, it may be very difficult for the Secretary of State at the decision stage (and then the Immigration Tribunal at the appeal stage) to decide whether, when the removal directions come to be given in the future, the Palestinian Territories will be a country or territory to which there is a reason to believe that the appellant will be admitted. In the unlikely event that removal directions are given which cannot be implemented and the Secretary of State stands by his directions despite the problems identified by the person to be removed, then judicial review is available.

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