Supreme Court

MS (Uganda) v Secretary of State for the Home Department

[2016] UKSC 33; [2016] WLR (D) 320

22 June 2016

Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC, Lord Wilson, Lord Hughes, Lord Toulson JJSC

Immigration — Asylum — Appeal — Student with leave to remain subsequently making asylum claim — Asylum refused — Whether claimant entitled to appeal against refusal of asylum where leave to remain pre-dating refusal — Nationality, Immigration and Asylum Act 2002 (c 41), s 83(1)(b)

Facts

The claimant, a Ugandan citizen, entered the United Kingdom as a student and in 2010 was granted limited leave to remain until 30 April 2012. In February 2012 the Home Secretary refused his claim for asylum and declined to vary his leave to remain. He appealed against the refusal of his asylum claim in reliance on section 83 of the Nationality, Immigration and Asylum Act 2002, pursuant to which a grant of leave to remain exceeding 12 months, referred to in section 83(1)(b) of the Act, was a prerequisite to the bringing of such an appeal . The First-tier tribunal dismissed his appeal on the facts. On his appeal the Upper Tribunal concluded that, on a proper construction of section 83, the claimant had no right of appeal. On his further appeal, the Court of Appeal affirmed that conclusion and gave the claimant permission to appeal to the Supreme Court.

On the claimant’s appeal —

Held

Held, dismissing the appeal, that, on a true construction, section 83(1)(b) applied where the grant of leave totalled 12 months or more, counting from the date of the refusal of asylum or later grant, whether the grant had been made before or after the refusal and whether the leave resulted from one or several grants; and that, since the claimant’s leave to remain fell well short of 12 months from the date of the refusal of his asylum claim, he did not come within section 83 of the 2002 Act.

Appellate History

Decision of the Court of Appeal [2014] 1 WLR 2766 affirmed on different grounds.

Law Reporter’s Note

Section 83 of the 2002 Act has now been repealed by section 15(3) of the Immigration Act 2014 and replaced by a wider right of appeal.

Appearances

Michael Biggs (instructed by Migrants Resource Centre) for the claimant.

James Eadie QC and Mathew Gullick (instructed by Treasury Solicitor) for the Home Secretary.

Reported by: Diana Procter, Barrister

© 2016. The Incorporated Council of Law Reporting for England and Wales.