Case Comment: MS (Uganda) v Secretary of State for the Home Department  UKSC 33
10 Wednesday Aug 2016
The appellant is a citizen of Uganda who was granted limited leave to remain in the United Kingdom as a student on 27 September 2010 lasting until 30 April 2012. Before his leave had expired he made an asylum claim and on 7 February 2012 the Secretary of State rejected the claim. Therefore when his asylum claim was refused the appellant had only 11 weeks remaining of his student leave.
During his appeals the Upper Tribunal and the Court of Appeal both came to the same conclusion; that there had never been any right of appeal, and for that reason they declined to investigate the case any further.
This case was heard before five Justices of the Supreme Court, having been appealed from the Court of Appeal. It concerned the additional right of appeal specific to asylum claims, which is contained in s.83 of the Nationality, Immigration and Asylum Act 2002 (now s.15(3) of the Immigration Act).
This section gives a specific right of appeal against the refusal of an asylum claim, in specified circumstances. It states:
(1) This section applies where a person has made an asylum claim and –
(a) his claim has been rejected by the Secretary of State, but
(b) he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).
(2) The person may appeal to the Tribunal against the rejection of his asylum claim.
The respondent’s primary argument was that the leave to enter or remain in the UK for a period exceeding one year must have been granted after the Secretary of State rejects the asylum claim.
In a unanimous decision the Supreme Court found that “the natural meaning of s.83 is that any grant(s) of leave to remain totalling more than 12 months bring the claimant within the section and afford him the right of appeal. It matters not whether the grant of leave to remain came before or after the refusal of the asylum claim.” The court actually went on to take this even further saying that even if the grant had expired before the asylum claim had been made this would still be enough to bring the claimant under s.83.
This has given the widest possible interpretation possible of the right under s.83. The Supreme Court gave a strong policy reason for this stating that refugee status “is a matter of significance and engages this country’s international obligations.” However, they did also provide the more analytical argument that, if they had gone with the Secretary of State’s argument, that ss. (1)(b) applies only when the grant is made after the asylum claim, then the right of appeal would effectively hinge on the leave to remain decision and not on the decision to refuse asylum. This was not what they believed s.83 was designed to do.
This post first appeared on Gherson Blog. Reproduced here with kind permission.