[2003] UKIAT 00184 G (Nepal)

IMMIGRATION APPEAL TRIBUNAL

Date of Hearing: 15th May 2003
Determination delivered orally at Hearing
							    Date Determination notified:
	............................

Before:

Mr C M G Ockelton (Deputy President)
Mr K Drabu
Mr G Warr

Between:
SECRETARY OF STATE FOR THE HOME DEPARTMENT
APPELLANT

and

RESPONDENT

DETERMINATION AND REASONS

1.	The Appellant is the Secretary of State for the Home Department.  He appeals, with leave, against the determination of an Adjudicator, Mr D N Wynn-Simpson, allowing, on human rights grounds only, the appeal of the Respondent against his decision on 26th June 2001 to refuse to vary leave to enter.  The Respondent, whom we shall call the Claimant, is a citizen of Nepal.  Before us today the Secretary of State is represented by Ms Sigley, and the Claimant by Ms Matheroo, instructed by E J Winter & Son.

2.	The Claimant applied for asylum and was refused.  His appeal to the Adjudicator was on asylum and human rights grounds.  The Adjudicator dismissed the appeal insofar as it relied upon the asylum grounds, but allowed the appeal on human rights grounds.  We must deal firstly with matters relating to asylum. 

3.	The determination of the Adjudicator was sent to the parties on 15th May 2002, which happens to be exactly one year ago today.  The Claimant and those representing him have at no stage indicated any dissatisfaction with that determination until this afternoon when Ms Matheroo placed before us a brief application to amend the appeal as it stood before us by way of applying out of time for leave to appeal against the Adjudicator’s findings on asylum.  Ms Matheroo was unable to give us any reason why nobody had in the previous 364 days thought it appropriate to challenge the Adjudicator’s determination from the Claimant’s point of view.  Ms Sigley told us she had come to court today prepared to deal with the matters upon which she had been granted leave to appeal and was not prepared to deal with matters relating generally to the Claimant’s asylum claim.  She resisted the application made by Ms Matheroo.

4.	After consideration, we refused Ms Matheroo’s application.  We take the view that if the Claimant sought to challenge the Adjudicator’s determination he should have done so in proper time, and in particular not at such a late stage that it took the other party by surprise.  We note that it is probably technically the case that this appeal before us today is governed in this respect as in all others by the 2003 Procedure Rules and as Ms Matheroo readily acknowledged, she has failed to comply with the provisions of those Rules in relation to a Respondent’s notice.  It is fair to say that she could not comply with them in all respects because, at the time when the Adjudicator’s determination was promulgated, those Rules had not yet been written, let alone come into force:  but in the six weeks since the Rules came into force she and those instructing her have, as she readily acknowledges, done nothing to bring any concerns that there might properly have been about the Adjudicator’s determination to the attention of either the Secretary of State or of the Tribunal.  As we say it is for those reasons that we declined to allow this very late amendment to the entire substratum of the appeal and confine ourselves now to the Secretary of State’s grounds of appeal which are, of course, solely concerned with the Adjudicator’s findings on the human rights aspects of the Claimant’s claim.

5.	We do not need to set out the Claimant’s history in any detail.  The only fact which is of importance for the purposes of the discussion of his human rights claim is that as well as being a citizen of Nepal, he has served in the British Army as a Gurkha.  He was in the Army for fifteen years from 9th February 1985 until 9th February 2000.  The Claimant’s claim on human rights grounds is summarised in the final paragraph of the Adjudicator’s determination, which reads as follows:

“14.	With regard to the human rights appeal and in particular with regard to the submissions put forward in respect of Article 1 of the first protocol, Mr Heaver submits that a legal right is private property within the meaning of that Article, and that if that is the case it can be combined with a claim under Article 14 of ECHR.  He refers me to the case of Van Mari v Netherlands (1986 8 EHRR 483) which he regards as authority that a human right belongs to a person in much the same way as an incorporeal property right, such as the goodwill of a business.  If Mr Heaver is right in this submission it seems to me that following the judgment of the Court in Lithgow v United Kingdom (1986 EHRR 329) at paragraph 106, that the Appellant’s rights not to be discriminated against have been interfered with by the State.  Mr Heaver’s case is that all other overseas nationals serving in the British Army are entitled to apply for British passports and to seek naturalisation after five or more years of service.  This does not mean that their applications will be accepted but simply that they may be submitted for consideration.  In the case of the Gurkhas their standing orders prohibit this and would appear to be discrimination on the basis of their national origin.  Ms Hemmings in making her submissions said that this was not a n appropriate point to be argued before an Adjudicator at first instance and clearly needed to be determined by a higher Court.  On the basis of the evidence before me and in light of Mr Heaver’s submissions, I am persuaded that he is right and having regard to Ms Hemmings’ submissions consider that the most likely way of achieving the thrust of her submissions is to allow the appeal, which I do now.”

The Adjudicator therefore allowed the appeal.  That comprises the totality of his consideration of this difficult issue.

6.	The first comment which we must make is that that was, in our view, an entirely inappropriate way for the Adjudicator to deal with the submissions which had been made to him.  An Adjudicator is not entitled under the statute to allow an appeal unless he is satisfied that the grounds are made out.  It is right to say that the Adjudicator does formally say that, on the basis of the evidence before him, he is persuaded that the submissions made on behalf of the Claimant were, as he put it, right.  On the other hand, he appears to take into account the proposal that the matter should be considered elsewhere in order to reach the view that he did that he should allow the appeal – apparently for pragmatic rather than for legal reasons.

7.	The Immigration Appeal Tribunal is a Tribunal which hears appeals.  That should be apparent from its name.  An appeal can only be properly constituted when there is a proper decision at the lower level to be appealed.  The Adjudicator’s failure to set out exactly his reasoning process in his determination has put both parties before us in very grave difficulties.  Ms Sigley needed almost to make up the Adjudicator’s reasons for him in order to challenge him in her grounds, and, on the other hand, Ms Matheroo had no confidence that the Adjudicator had decided anything specifically in her favour.  It is vital that Adjudicators, whether allowing or dismissing appeals, set out their reasons for doing so in a way which is both justifiable in law and informative to the parties.  

8.	We pass from those comments to consideration of the substantive issue before us which is whether the Adjudicator was right to allow the appeal on human rights grounds.  The claim, as we see it, is that the Claimant, being a Gurkha, is not permitted to apply for British citizenship on the basis of his service in the Army whereas other foreign nationals serving in the British Army are entitled to make such application.  It is said, although we have not seen the regulations in question, that the prohibition derives from the Standing Orders of the Gurkha Regiment.  Those orders, we must assume, are made by or with the consent of the Ministry of Defence.

9.	The first problem that the Claimant has, as it appears to us, is that it is difficult to see why the refusal to vary the Claimant’s leave is itself contrary to his human rights in the way in which his claim is put.  It cannot, we think, be said that merely to refuse an alien leave to remain in the United Kingdom is discriminatory.  Nor, we think, can the Claimant show that other aliens in a similar position are not refused leave as he has been refused.  His claim relates to events which have not yet taken place.  He says that he cannot apply for British citizenship or, by implication, that if he did apply he would be refused.

10.	Our view is that the Claimant’s present position is not one which, even if all his other arguments were to be accepted, presently gives rise to a claim that he has suffered discrimination.  It is right to say that under Section 7(1)(b) of the Human Rights Act 1998 a person who alleges that his human rights are infringed may rely on those rights in any legal proceedings.  He cannot be criticised and we do not seek to criticise him for raising this issue during the course of his asylum appeal.  Nevertheless, the provision allowing him to rely on human rights does not itself establish the rights nor does it establish the decision which is to be the subject of criticism.

11.	In the present case, we take the view that the Claimant would need to show that he himself had either been the subject of discrimination in that he had been prevented from applying for citizenship or that he had been the subject of discrimination in that he had applied for but wrongly been refused citizenship.  His current position, that is to say that he has not yet made an application because he believes that he would not be able to, does not, in our view, show that he could yet have been the subject of discrimination himself.

12.	We must refer briefly to what the situation will be if in due course he chooses to attempt to proceed in the way in which we have suggested.  There are, we envisage, two possibilities.  One is that he will be prevented from making the application by an officer at the Ministry of Defence.  The other is that, having made the application, he might be refused citizenship by an officer of the present Appellant.  If he is prevented from making the application and seeks to establish that the rules operated against him are discriminatory, he will need to challenge the Ministry of Defence’s policy by way of Judicial Review.  If he seeks to show that, having made an application, the refusal of citizenship was discriminatory, he will need to challenge the Secretary of State’s decision by Judicial Review.  We say “by Judicial Review” because it appears that the jurisdiction of the Immigration Appellate Authorities in such cases has been removed by the 2002 Act.  Under the Immigration Acts 1971-1999, a person who was found by an officer of the Secretary of State to require leave to be in or to enter the United Kingdom or to be subject to immigration control had a right of appeal to an Adjudicator and hence of course to the Tribunal.  The most recent provision to that effect is s 59(1)(a) of the 1999 Act which reads as follows:

“A person who is refused leave to enter the United Kingdom under any provision of the 1971 Act may appeal to an Adjudicator against the decision that he requires leave.”

Of course, a person entitled to citizenship is a person who does not require leave.  Under the 2002 Act, an appeal to an Adjudicator must be against an immigration decision listed in s 82(2), (save in the special case covered by s 83 which is not relevant to the present discussion).  Under s 82(2), the refusal of leave to enter and the refusal of entry clearance are both appealable immigration decisions, but so far as we understand that section there is now no appeal to an Adjudicator against the decision that entry clearance or leave to enter is necessary.  It therefore follows that an allegation that a decision to refuse a passport or citizenship was made contrary to the Human Rights Act would need to be made in the appropriate Court or Tribunal under s 7(1)(a) of the Human Rights Act 1998 rather than to an Adjudicator.

13.	For those reasons, we consider that the proceedings before the Adjudicator challenging the Secretary of State’s decision to refuse leave to remain on the basis that the Claimant is a person who cannot apply for citizenship are doomed to failure.  In case we are wrong about that we propose to consider briefly the situation if the arguments put by the Claimant to the Adjudicator were to be considered.

14.	As we observed to the parties, we have had the opportunity of considering the judgment of Sullivan J in Purja and others v Ministry of Defence [2003] EWHC 445 Admin.  That, as is well known, was a challenge by, and on behalf of, a number of Gurkha soldiers, chiefly, though not entirely, related to their pensions.  As Ms Matheroo submitted, it was not a case in which the judge could be expected to have in mind issues relating to nationality or the right to apply for nationality, but there are nevertheless a number of features of that judgment to which we think we should properly have regard.  

15.	The first is the process of proving discrimination under Article 14 in which the learned judge adopts the process set out by the Court of Appeal in Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271.  In his judgment, Brooke LJ set out a process of considering discrimination claims under Article 14.  It would be presumptuous of us to say that we entirely agree with it.  We set it out here for the benefit of those who may read Immigration Appeal Tribunal decisions, but who do not have the advantage of seeing very many non-immigration decisions of the Court of Appeal and other higher Courts.  Brooke LJ sets out the process as follows:

“If a court follows this model, it should ask itself the four questions I set out below.  If the answer to any of the four questions is No, then the claim is likely to fail, and it is in general unnecessary to proceed to the next question.  These questions are:

(i)	Do the facts fall within the ambit of one or more of the substantive convention provisions (for the relevant convention rights, see section 1(1) of the 1998 Act?
(ii)	If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison (‘the chosen comparators’) on the other;
(iii)	Were the chosen comparators in an analogous situation to the complainant’s situation?
(iv)	If so, did the difference in treatment have an objective and reasonable justification:  in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved.”

As Sullivan J notes later in his judgment, the burden of proof as regards the first three questions falls typically on the Claimant.  Only if the Claimant is able to show that the answer to the first three questions is yes, is there a duty upon the Respondent to justify the difference in treatment.

16.	If we apply that model to the situation deriving from the facts in the present appeal, the first question is whether the Claimant’s claim falls within the ambit of one or more of the substantive Convention provisions.  That, of itself, poses two very considerable difficulties for the Claimant.  The first is that in order to raise the matter within the Convention, the Claimant is forced to allege, as indeed he did before the Adjudicator, that the right to apply for British citizenship is a property right.  Before the Adjudicator, as we have noted, the Claimant’s representative pointed out that rights do not have to be corporeal in order to be protected by the First Article of the Protocol.  Nevertheless, there is, in our view, a considerable difference between a right to exercise a profession as was the subject of the litigation in Mari and the right to make an application to a government as is the case here.  As at present advised, we would decide that the right, if there be a right, to make an application for naturalisation as a citizen of a country is not a property right protected by the European Convention on Human Rights Protocol.

17.	The second problem is a technical one and we approach it with some hesitation because it does not appear to have been taken in any of the other cases on the First Protocol and indeed has not been taken in this case.  In order to explain the difficulty we need to set out Article 14 of the European Convention on Human Rights which is in the following terms:

“The enjoyments of the rights and freedoms set forth in this Convention should be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

As we have said, the right upon which the Claimant bases his claim is contained not in the Convention but in Article 1 of the First Protocol to the Convention.

18.	Both Article 14 of the Convention and Article 1 of the First Protocol are contained in the Schedule to the Human Rights Act 1998 and indeed section 1(1) of that Act reads as follows:

“In this Act, the Convention rights means the rights and fundamental freedoms set out in:

(a)	Articles 2 to 12 and 14 of the Convention;
(b)	Articles 1 to 3 of the First Protocol, and
(c)	Articles 1 and 2 of the Sixth Protocol as read with Articles 16 to 18 of the Convention.”

And it is those rights which are Convention rights for the purposes of the United Kingdom’s own law on human rights.

19.	Looking back at Article 14, we note that the prohibition of discrimination relates only to “the rights and freedoms set forth in this Convention”.  The right to have property protected is not a right set forth in the Convention.  It is a right set forth in a Protocol to the Convention.  That difficulty was well appreciated by the draftsman of the Protocol and Article 5 of the Protocol is as follows:

“Relationship to the Convention

As between the High Contracting Parties the provisions of Articles 1, 2, 3 and 4 of this Protocol shall be regarded as additional articles to the Convention and all the provisions of the Convention shall apply accordingly.”

20.	As is well known, the 1998 Act is subtly and carefully drafted and its text was the subject of considerable discussion in and outside Parliament before it was enacted.  It is particularly notable that Article 5 of the First Protocol is not incorporated into English law by the Act.  Although the position in international law is therefore that discrimination in relation to matters in the Protocol may breach Article 14, in English law the position is different.  The rights secured by the Protocol are not rights set forth in the Convention and Parliament appears to have taken a deliberate choice to avoid them being so treated.

21.	We would therefore conclude that the first of the Michalak questions must be answered in the negative because the facts do not fall within the ambit of Article 1 of the First Protocol and discrimination in relation to property is not a “Convention right” within the meaning of the Act.  Even if the answer to the first Michalak question had been affirmative, however, the Claimant would be in difficulties with the second.  That, it will be remembered, requires the Claimant to show a different treatment between himself and chosen comparators.  At the hearing we enquired who precisely the chosen comparators were said to be.  We have set out the claim in general terms in our extract from the Adjudicator’s determination in paragraph 5 above, but doubt is cast on the bear assertion made there by paragraph 15 of Purja which reads as follows:

“15.	The defendant accepts that it does discriminate between (not against) Gurkha soldiers and British soldiers serving in the British Army, but is most anxious to emphasise that this discrimination is based upon factors relating to nationality – Gurkhas are, and remain at all times, citizens of Nepal – and not race.  National armies commonly discriminate on the ground of nationality.  Although there is no legal impediment to a non-British citizen joining the British Army, as a matter of policy, aliens (which for this purpose excludes Commonwealth citizens, British protected persons and citizens of the Republic of Ireland) are not eligible to enlist unless they also have British citizenship and are therefore dual nationals.  Unless special arrangements were made, citizens of Nepal, who are not dual nationals, could not in practice serve in the British Army.” (emphasis added)

22.	No doubt Sullivan J expressed himself in that way after careful consideration and having had the benefit of well-informed submissions from the Ministry of Defence, amongst others.  Nothing formally before us in this case throws any doubt upon the accuracy of the judge’s assessment of the situation.  We were told that there are a number of soldiers in the British Army who are of Hungarian nationality, but we have no information about the existence of any special arrangements relating to them.  There is a grave disparity between the broad assertion made to the Adjudicator and the more considered evaluation in Purja.  In these circumstances, our view would be that no comparators have, in fact, been identified.  If they had been, one would then pass on to the third question, but that question cannot be meaningfully answered without identified comparators.  All that we can say is that given that citizens of Nepal have, as such, no relation to the British Crown either as British citizens or Commonwealth citizens or British protected persons, nor any close geographical relationship to Britain, it is difficult to see why they should be treated as analogous to those who have.

23.	We summarise our conclusions as follows.

i.	The Appellant has failed to establish that an act has occurred in which his human rights have been arguably infringed.

ii.	The act or acts which he envisages may occur are not acts which, in the information before us, could be regarded as infringing any Convention right of his to be treated without discrimination in the enjoyment of property.

24.	For the foregoing reasons the Secretary of State’s appeal is allowed.  The effect of that is that his decision is restored because we find that there is no reason to suppose that it was affected by any unlawful discrimination.	

	

C M G OCKELTON
DEPUTY PRESIDENT