[2003] UKIAT 00193 S (Algeria)

IMMIGRATION APPEAL TRIBUNAL

Heard at Field House
On: 29 October 2003
Prepared: 7 November 2003

Before

Mr Andrew Jordan
Mr D. R. Bremmer J.P.

Between:
	Claimant

and

The Secretary of State for the Home Department
	Respondent

For the claimant: Mr R. Martin, counsel
For the Secretary of State: Miss N. Hough, HOPO

DETERMINATION AND REASONS

1.	The claimant is a national of Algeria.  The Secretary of State appeals against the decision of an adjudicator, Mr D. J. B. Trotter, in which he dismissed the claimant's asylum appeal but allowed the claimant's appeal under Article 3 of the ECHR and directed that the Secretary of State grant the claimant exceptional leave to remain up to and including 1 January 2004.
 
2.	The claimant was born on 14 May 1975.  He has a wife, born 1 February 1973, whom he married in Algeria.  They travelled together to the United Kingdom using their own passports and claimed asylum on their arrival on 14 April 2002. 

3.	The adjudicator rejected the claimant's claim for asylum and there is no appeal against that finding.

4.	The adjudicator, however, noted that the claimant and his wife had experienced the tragedy of the death of their child born prematurely in October 2002.  At the date of the hearing before the adjudicator, in February 2003, the adjudicator saw a medical report from the Leicester Royal Infirmary confirming that, following an ultrasound investigation, the claimant's wife was eight weeks pregnant.  Happily, the couple's son, Adam, was born on 2 October 2003.

5.	Bearing in mind the death of the couple's first child, the adjudicator took the view that the claimant and his dependant wife and child should not be returned to Algeria until the child was about eight weeks old.  It was for this reason that he found it would be a breach of the claimant's Article 3 rights to return him to Algeria.  This was also the explanation for the adjudicator’s attempt to grant the claimant and his family exceptional leave to remain until 1 January 2004.  At the hearing before the adjudicator, no Home Office presenting officer was present.  

6.	The Secretary of State appeals to the Tribunal.  Whilst the adjudicator was, no doubt, prompted by humanitarian considerations, the appeal raises the simple but nonetheless important issue as to the adjudicator's use of his powers under the Human Rights Convention to regulate the return of an appellant and members of his family.

7.	The powers of an adjudicator are derived from statute.  An adjudicator has no power to grant exceptional leave to remain.  Accordingly, the adjudicator was wrong in his direction to the Secretary of State requiring him to grant exceptional leave to remain.

8.	In using his powers under the ECHR, the adjudicator is concerned to ascertain whether the claimant's removal from the United Kingdom will involve a violation of the obligations owed to the claimant by the UK government.  The breach may arise because of his removal from the United Kingdom or it may arise because of the circumstances he is reasonably likely to encounter in the receiving state.  In the process of removal, however, the adjudicator should not assume that the Secretary of State will disregard ordinary legal obligations or humanitarian principles.  Thus, for example, the removal of a person liable to deportation whilst he is receiving treatment for a broken arm in the Accident and Emergency Department of his local NHS hospital might well be unlawful (or even criminal) activity on the part of those seeking to enforce removal.  That arises, however, by reason of the various duties owed by any person when dealing with another, arising both under the civil and criminal law.

9.	We have no doubt that there are well-established principles governing the safety of pregnant women who wish, or are required, to fly by air.  We have no doubt that the Home Office has its own internal procedures dealing with the removal of pregnant women.  As we have said, these procedures are directed at compliance with the government's ordinary civil obligations and have nothing to do with the Human Rights Convention.  It is a misuse of the adjudicator's powers under the ECHR to seek to use those powers to require the Secretary of State to comply with his ordinary obligations.  

10.	Whilst it may appear tempting to require the Presenting Officer to give an undertaking that a person should not be removed pending a critical period, it should be unnecessary. Quite apart from the efficacy of extracting undertakings, the precise circumstances in which a person liable to removal will be removed is likely to fall within the administrative discretion of the Secretary of State, albeit subject to review by the courts.  It is best not performed by adjudicators.

11.	Neither is it part of the adjudicator's statutory function to make recommendations.  Adjudicators have, from time to time, made recommendations but it is for the Secretary of State to decide whether he will give effect to a recommendation to act outside immigration law or the Immigration Rules. In recent times, the Secretary of State has set out the circumstances in which he is prepared to consider recommendations made by adjudicators.  In others cases, it may well be useful for the adjudicator to note any relevant factor so that when the file is being reviewed by a caseworker, he will be alerted to it. The pregnancy of the claimant's wife was a factor that might properly have been drawn to the Secretary of State's attention by the adjudicator, although it seems unlikely the claimant would not have given the information directly to the Secretary of State himself. No more was necessary. 

Decision: The appeal of the Secretary of State is allowed. 

Andrew Jordan
Vice President
7 November 2003