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On Monday and Tuesday, 26 and 27 April 2010 a five judge bench, Lord Rodger, Lady Hale, Lords Mance and Collins, and Sir John Dyson will hear the case of MS Palestinian Territories (FC) v Secretary of State for the Home Department.  This is one of a series of immigration cases which will come before the court this term.  The case arises out of the Secretary of State’s decision to refuse MS’s application for asylum and follows the dismissal of MS’s appeals by the Asylum and Immigration Tribunal and the Court of Appeal (Civil Division) [2009] EWCA Civ 17 .

The issue is whether it is possible to challenge by way of an appeal to the AIT an immigration decision to remove an illegal entrant, where the ground of appeal is an allegation that removal directions for the proposed country of return could not lawfully be made pursuant to Schedule 2 of the Immigration Act 1971.   MS is a Palestinian, born in Gaza who arrived in the UK in the back of a lorry. He did not claim asylum immediately. When he did, he claimed it would breach his rights under Articles 2, 3 and 8 to be returned to the Palestinian National Authority (“the PNA”).  By a letter dated 24 May 2007, the Secretary of State rejected all his claims. On the same day, the Secretary of State issued a notice of immigration decision under the hether under the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) with ‘Removal Directions,’ indicating that MS would be removed from the UK to the PNA. MS appealed unsuccessfully.

MS applied for review on grounds relating to the removal direction: evidence from the Palestinian Delegate Office in London was that MS would not be admitted to the Palestinian Territories.   The AIT rejected this appeal and the Court of Appeal agreed.  It held that removal directions were not themselves an immigration decision subject to appeal, nor were future removal directions that had not yet been made an inherent part of an immigration decision.   As Rix LJ, giving the leading judgment, said

“The essential decision … is the immigration decision or decisions pursuant to which an applicant’s asylum or human rights claims (or other claims within the immigration rules) have been adjudicated, and by which, where entry has been illegal, the Secretary of State must be entitled to decide to remove the illegal entrant. If that removal thereafter turns out to be, for other reasons, lawfully and practically impossible, that is another question which has to be dealt with at that time”.  [30]

As a result, the appellant was not entitled to challenge the removal directions by way of an appeal under the 2002 Act.

Although the case does not directly raise human rights issues, it appears that the appellant contends that there are human rights implications of the decision as it impinges on interests protected by Article 8 of the Convention.  The point is mentioned in the Supreme Court’s Case Details which are to be found here.

On appeal from the Court of Appeal Civil Division (England and Wales)Issue Whether under the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) it is possible to challenge by way of an appeal to the AIT an immigration decision under section 82(2)(h) of the 2002 Act to remove an illegal entrant, where the ground of appeal is an allegation that removal directions for the proposed country of return could not lawfully be made pursuant to Schedule 2 of the Immigration Act 1971.Facts MS is a Palestinian, born in Gaza. MS arrived in the UK in the back of a lorry. He did not claim asylum immediately. When he did, he claimed it would breach his human rights (Arts 2, 3 and 8) to be returned to the Palestinian National Authority (“PNA”). By a letter dated 24 May 2007, the Secretary of State rejected all his claims. On the same day, the Secretary of State issued a notice of immigration decision under the 2002 Act, with ‘Removal Directions,’ indicating that MS (if he did not appeal) would be removed from the UK to the PNA. MS appealed unsuccessfully. MS applied for review on grounds relating to the removal direction: evidence from the Palestinian Delegate Office in London was that MS would not be admitted to the Palestinian Territories. IJ Lloyd of the AIT rejected this appeal.