The Court of Appeal has upheld the right of a Tunisian refugee to appeal in the UK against cancellation of his residence rights.

We have become used to dodgy manoeuvres on the part of the Home Office and the UK Border Agency (UKBA) in their war on asylum seekers, terror suspects and other ‘undesirables’. Campaigns have been fought and limited victories secured against the unbridled use of secret evidence and secret allegations in the context of control orders. A fairly new development is the attempt to hobble appeal rights of those deemed undesirable by curtailing their leave to enter while they are out of the country, and then arguing that they have no right to come back in to prosecute their appeal. The case of MK, which was decided on 23 March 2011, provides a window on these new tactics.

MK is a Tunisian refugee, granted asylum in 2001, who lived in Manchester with his wife and daughters until 2007, when the Italian authorities demanded his extradition. He was arrested on a European Arrest Warrant and extradited to Italy in November 2008, where he was put on trial for terrorism-related offences and an offence relating to false documents. In July 2010 he was acquitted of all the terrorism-related offences. The Italian authorities then tried to send him to Tunisia, but were prevented from doing so by the European Court of Human Rights. In the meantime, however, in April 2010, the Home Office served him with a notice saying it intended to revoke his refugee status, on the basis that there were ‘reasonable grounds for believing him to be a danger to national security’. And on 16 July, the UK authorities cancelled his indefinite leave to enter in the UK.

Naturally, MK sought to appeal against the decision of the UK authorities – but he had been told by UKBA – wrongly – that he had no right to return to the UK for his appeal. When he was released from custody in Italy in August 2010, he was given five days to leave the country. But where could he go? He went to Zurich, but was arrested trying to check in on a flight to Dublin. Unbeknownst to him, UKBA had even cancelled his refugee travel document. He was sent to London City Airport, where he was arrested on arrival. The immigration authorities tried to send him back to Zurich, but his lawyers got an injunction to prevent that, and a ruling from the High Court that the law gave MK a right of appeal in the UK and that the cancellation of his leave did not take effect while he exercised that right of appeal. The judge, Mr Justice Collins, accepted that appellants should not be deprived of the right to attend their own appeal unless that was the clear intention of parliament.

The Home Office refused to accept that ruling and appealed. It argued that the sort of appeal appellants were entitled to – in-country or outside the country – depended on where they were at the time of the decision to cancel their leave or exclude them from the country. The purpose of exclusion would be defeated, its lawyers argued, if appellants who had left the UK could come back for an appeal. As MK’s lawyers pointed out, the argument raised the spectre of someone settled in the UK for decades going abroad on a short holiday and finding themselves suddenly and shockingly banished from the country for ever – a prospect which was evidently what the Home Office intended. The judges agreed that this would give rise to ‘potential injustice’ – a description that feels like something of an understatement. Had the judges not intervened, the Home Office would once more have got away with a sleight-of-hand erosion of appeal rights in the name of national security.

Amanda Weston, a barrister who represented MK, has expressed profound concern at UKBA practice apparently aimed at subverting appeal rights and skewing procedures against appellants. She is speaking at an IRR lunchtime seminar on 18 April, on Deprivation of citizenship – by stealth.

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Attend an event at the IRR on Monday 18 April: Deprivation of citizenship – by stealth.