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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Dupovac v. Secretary of State for home Department [2000] EWCA Civ 10 (21 January 2000) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/10.html Cite as: [2000] EWCA Civ 10

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Mr Blake QC, for the appellant, submitted that the statute should be strictly construed against the SSHD so as to limit the circumstances in which a refugee's appeal must be treated as abandoned in those cases where the circumstances would suggest no intention whatever on the part of the refugee to give up an appeal. He identified for us the different categories of persons to whom the section could apply if the SSHD's construction of the sub-section is correct. First he identified a limited class of persons, who, even if they left the United Kingdom while their appeal was pending, would have a right to return without leave. As I understood the submission that class was likely to be small, being diplomats, crew members or possibly persons who went on one day bus trips to the continent on one passport. Second was the class of persons such as the appellant who had exceptional leave with a limit on duration, where that duration had not expired when they left and then returned to the United Kingdom. In their case if they went to a country or territory outside the common travel area their leave lapsed (see Section 3(4) of the 1971 Act), but as a matter of practice that leave would be renewed on their return within the limit of the original duration subject to the same conditions as contemplated by Section 3(3)(b). Third there was the category of persons, who, if they left and went to a country or territory outside the common travel area, simply could not re-enter without further leave. In this category would be a vast number of persons who, for example, had had orders for deportation made or been refused asylum and were remaining in the United Kingdom and were protected from being deported while their appeals were pending; those for example to whom section 14(2) and section 15(2) of the IA 1971 applied, and those to whom section 6, and paragraph 8 of Schedule 2 of the Asylum and Appeals Act 1993 applied.

It was Mr Blake's submission that it was really to this last category of persons that the amendment was directed, persons who were in the United Kingdom only because appeals were pending, and who, if they left, should be presumed to have abandoned their appeals.
If the statute has the effect of deeming appeals to be abandoned in circumstances such as those that existed in the appellant's case, I accept that the result is draconian. If a person goes on a social visit to a territory outside the common travel area, and returns well within the duration of the period of exceptional leave already given and which is as a matter of practice bound to be given on her return, and who in no sense has intended to abandon her appeal, it seems harsh that she should be deemed to have done so.
The difficulty is however that there is nothing in the statute which would allow a different construction of the section depending on whether the person concerned fell within the third category identified by Mr Blake or the category in which the appellant falls. Mr Blake cannot spell out of the language, as he was arguing at one stage, that in the third category case leaving the United Kingdom will be as good as deemed abandonment, but in others it will be a question of fact as to whether abandonment has taken place. To succeed in his argument Mr Blake has to satisfy us that leaving the United Kingdom is never by itself determinative of the question whether an appeal is abandoned.
To put it another way he must show that in addition to showing that a person has left the United Kingdom the SSHD would have to demonstrate in every case that the person had also abandoned their appeal.
The fundamental problem for Mr Blake is that as has been confirmed in R v Immigration Appeal Tribunal and the Lord Chancellor ex parte Ali [1998] INLR 526 persons may abandon their appeal without leaving the United Kingdom. If (as on Mr Blake's construction would be necessary) an investigation is required even where a person has left the United Kingdom as to whether in addition they have actually abandoned their appeal, why are the words "by reason of the appellant leaving the United Kingdom" there? As Carnwath J in Ali himself decided they are not there so as to demonstrate that it is only if the person leaves the United Kingdom that he or she can be taken to have abandoned their appeal. They are not there because persons within the United Kingdom never do abandon their appeals. They can only be there as the determinative factor so far as any person who leaves the United Kingdom is concerned.
Mr Blake sought to gain some comfort from the fact that the 1996 Procedure Rules seemed to acknowledge that an appeal can exist where an appellant is out of the country. He relies on Rule 33(1)(a) and Rule 35(1)(b) which do allow for the determination of an appeal in the absence of an appellant if he is not within the United Kingdom. These rules still have an application, as it seems to me, in relation to appeals under section 3(2) of the 1996 Act. Mr Blake places great emphasis on the fact that under section 3(2) appeals cannot be brought, or, (as he emphasises) pursued whilst the Appellant was in the UK. He submits thus that it would be unlikely that a procedure rule was designed to give an adjudicator a discretion to hear an appeal in a person's absence with words in the primary legislation of that kind.
I am not clear why the procedural rule should not give that discretion, but in any event this point cannot alter the plain meaning of the words in section 33(4) as amended.
I should finally add one caveat which may be relevant in construing the 1999 Act as well. That Act I should say has put beyond doubt in relation to those to whom it applies that simply leaving the United Kingdom will be deemed an abandonment of an appeal (see Section 55(5) and (8)). What Mr Blake did not, and possibly could not, argue on the facts of this appeal was that the appellant had not left the United Kingdom. It was put to Mr Blake in the course of the hearing before us, the question as to what would be the position if someone simply sailed out to sea and then back again during one afternoon. He rightly declined to wrestle with that problem. I would wish to reserve the question as to whether there may not be circumstances when despite a physical leaving of the shores of the United Kingdom, the physical leaving will not constitute "leaving" the United Kingdom within the words as used in the statute.
I would dismiss the appeal.
LORD JUSTICE CHADWICK:
As Lord Justice Waller has pointed out in his judgment, with which I entirely agree, the short issue raised by this appeal is whether the words "by reason of the appellant leaving the United Kingdom" in the context of section 33(4) of the Immigration Act 1971 are to be construed as determinative, or as merely permissive or presumptive. To put the point in a slightly different way, the question is whether the words "is abandoned by reason of the appellant leaving the United Kingdom" require the adjudicator or the Appeal Tribunal (as the case may be) to treat an appeal as abandoned on the appellant leaving the United Kingdom; or require the adjudicator or the Appeal Tribunal to consider whether the fact that the appellant has left the United Kingdom does, in the circumstances of each particular case, lead to the conclusion that the appeal has been abandoned.

The appellant contends that there must be consideration to the particular circumstances of each case. But, if that is correct, the inclusion of the words "by reason of the appellant leaving the United Kingdom" must, as it seems to me, lead to the conclusion that Parliament has determined that it is only in cases in which the appellant has left the United Kingdom that the question of an abandonment of the appeal can arise, at least in the context of section 33(4) of the 1971 Act. On that hypothesis it would not be open to the adjudicator or to the Appeal Tribunal to conclude, however strong the evidence, that the appeal has been abandoned in a case where the appellant has not left the United Kingdom. I would find that a strange conclusion; given that it is not difficult to think of factual situations from which (notwithstanding the appellant's continued presence in the United Kingdom) the only proper inference was that he had abandoned his appeal. That that conclusion is not only strange, but wrong, has been demonstrated by Mr Justice Carnwath in R v Immigration Appeal Tribunal and the Lord Chancellor, ex parte Ali [1998] INLR 526, to which Lord Justice Waller has referred.

If the words "by reason of the appellant leaving the United Kingdom" have not been included in order to restrict cases of abandonment to those in which the appellant has left the United Kingdom, then there is no escape from the question: for what other purpose have they been included? Mr Blake QC, on behalf of the appellant, was unable, as it seems to me, to provide any answer to that question. In my view, the only answer which can be given to that question is that the words have been included in order to require the adjudicator, or the Appeal Tribunal, to treat an appeal as abandoned on the appellant leaving the United Kingdom, without further inquiry into the facts of the particular case. That may seem a draconian result; but I see no escape from it. In the light of section 58 of the Immigration and Asylum Act 1999 it may, perhaps, seem less surprising than it would otherwise have done that that was Parliament's intention when the words were introduced into the 1971 Act by paragraph 4(2) of schedule 2 to the Asylum and Immigration Act 1996. But the conclusion to which I am driven does not depend on hindsight derived from the 1999 Act. It is, in my view, the necessary effect of the words introduced in 1996.
I should add that I express no view on the circumstances in which a person will be held to have left the United Kingdom in the context of section 33(4) of the 1971 Act - a question which may well arise, also, under the 1999 Act. It does not arise in this appeal; it being accepted that, whatever the precise nature of that requirement, it was satisfied in the present case.
SIR CHRISTOPHER SLADE:
I agree with both judgments and think it unnecessary to add anything of my own.
Order: Appeal dismissed - no costs. Order does not form part of approved judgment.