MS, a Ugandan citizen with limited student leave, was refused asylum while about eleven weeks of that leave remained. The Supreme Court decided when section 83 of the Nationality, Immigration and Asylum Act 2002 gave a separate appeal against refusal of an asylum claim. It held that the right arose only if, counting from the refusal or any later grant, the person had leave of more than twelve months. MS did not, so his appeal was dismissed.
The case turned on a right of appeal that has since been repealed, but which still applied to MS. Section 83 of the Nationality, Immigration and Asylum Act 2002 gave some people a specific appeal to the Tribunal against rejection of an asylum claim. Section 15(3) of the Immigration Act 2014 repealed it and replaced it with a wider right. Lord Hughes, with whom Lord Neuberger, Lady Hale, Lord Wilson and Lord Toulson agreed, said that it remained in force for MS and perhaps for some others.
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The two appeal routes
The ordinary route was section 82. That gave an appeal against listed immigration decisions, including the main decisions leading to removal, such as a decision to remove or a refusal to vary leave which left the person with none. A refusal of asylum was not itself one of those listed decisions. If there was a section 82 appeal, the person could argue under section 84(1)(g) that removal would breach the Refugee Convention. In that indirect way, refugee status could usually be tested.
There was no section 82 appeal if asylum was refused but leave to remain was granted, because the person could lawfully stay and there was no removal decision to challenge. Refugee status still mattered, because legal consequences follow if it is established. Section 83 filled part of that gap. It applied where an asylum claim had been rejected but the person had been granted leave to enter or remain for a period exceeding one year, or for periods exceeding one year in total. The person could then appeal against the rejection itself.
What happened to MS
MS had student leave when he sought asylum. The decision on that claim came shortly before the leave was due to expire.
On 7 February 2012 the Secretary of State rejected the asylum claim and refused to vary the leave, but she did not curtail it. About eleven weeks of student leave therefore remained.
MS appealed to the First-tier Tribunal. His claim to refugee status was refused on the merits. No one raised jurisdiction, and the appeal appears to have been treated, without the point being stated, as a section 82 appeal. In the Upper Tribunal, Upper Tribunal Judge Clive Lane held that there had never been a right of appeal and declined to examine the case further. The Court of Appeal reached the same conclusion. The question for the Supreme Court was one of statutory construction: when did section 83 apply?
Four possible readings
MS’s principal case was that any grant or grants of leave totalling more than twelve months brought a person within section 83, whenever they occurred and even if they had expired before the asylum claim. His alternative was that such leave had to be current when the asylum claim was decided.
The Secretary of State’s principal case, accepted by the Upper Tribunal and the Court of Appeal, was that the leave had to be granted at the same time as, or after, the refusal. Her alternative, if that failed, was that the person qualified if leave totalled more than twelve months counting from the refusal or from a later grant, whether the grant came before or after the refusal.
An older argument, that the refusal and the grant had to be logically connected, was no longer pursued. It had been rejected in earlier litigation, and Lord Hughes said that the Upper Tribunal was wrong to rely in part on such a connection. Multiple grants totalling the required period showed that no such link was required.
A condition, not a general right with exceptions
Lord Hughes rejected the idea that section 83 first created a general appeal against refusal of asylum and then limited it. The requirement of leave exceeding one year was the condition on which the right arose: a key to admission, not a partial barrier. The section did not give an appeal where no leave had been granted at all.
The wording focused on the time when the asylum claim was rejected and on whether, when the person wished to appeal, the leave condition was met. It was concerned with leave still operative after the refusal, not with leave that was already spent. A grant made before the refusal could still meet the condition.
Why Parliament created the extra appeal
The purpose of section 83 was to add a more targeted appeal to the ordinary section 82 route. It provided a way for the Tribunal to decide refugee status where no other route existed and none would exist within a reasonable time.
If asylum was refused and there was no other basis for remaining, a removal decision would normally follow and a section 82 appeal would be available. If only a short period of leave was granted, as often happened with unaccompanied children allowed to remain until adulthood, the immigration position would be reconsidered relatively soon. A further grant, or a refusal and removal decision, would then provide a route. Section 83 was aimed at people with a longer period of leave, whose immigration position would not be reconsidered in the near future, and whose refusal of asylum was not accompanied by a decision to remove them. Lord Hughes also referred to the point that, where conditions in a home country may change quickly, tribunals should not be clogged with cases due to be reviewed before long.
The reading adopted
That purpose was best served by the Secretary of State’s alternative reading. A person could use section 83 if limited leave totalled more than twelve months counting from the date of refusal or, if later, the date of grant. The same applied, all the more so, to indefinite leave. It did not matter whether the leave had started before the refusal, or whether it came from one grant or several.
If, when the person sought to appeal, any current leave had twelve months or less to run from the refusal, or from a later grant, there was no section 83 appeal. The person was left to a section 82 appeal in due course.
The reading preferred by MS would have counted leave already spent, even leave that had expired years before the refusal. The Court found no reason for that result.
Support from the surrounding provisions
Other parts of the Act supported this reading. Under section 78, a section 82 appeal prevents removal until it is decided. Under section 94, the Secretary of State may certify a section 82 claim as clearly unfounded and prevent an in-country appeal. Neither applies to section 83. That makes sense if the section 83 appellant is lawfully present and there is no adverse decision creating unlawful presence to suspend. Those protections would be needed if section 83 covered people whose leave was already spent or soon to be spent. Their absence therefore told against the wider readings.
The word “but” between rejection of the claim and the grant of leave did not require the grant to come later. Nor did the later section 83A, dealing with people originally recognised as refugees and later held to have ceased to be refugees, support the Secretary of State’s principal reading. Lord Hughes said it was unsafe to construe an earlier provision by a section drafted afterwards. In any event, that section looked to the person’s position at and after the decision, not to whether the grant itself was later.
Verdict: The Supreme Court unanimously dismissed the appeal. MS had only about eleven weeks of leave remaining after refusal and therefore had no section 83 right of appeal. The Court did not decide whether he qualified for asylum.
Source: MS (Uganda) v Secretary of State for the Home Department [2016] UKSC 33
