AS (Afghanistan) v Secretary of State for the Home Department & Anor

Shorthand expressions are often very useful to communicate ideas quickly. But they are also often ambiguous, and they are not always accurate. On these appeals, the principal question we have to consider is the effect of what are called "one-stop” notices, or warnings, pursuant to section 120 of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”) on appeals in immigration cases. The appellants say that the effect of a one-stop notice is that the appeal covers not only any ground before the Secretary of State when he made the decision under appeal but also any grounds raised in response to a “one-stop notice” even if they had not been the subject of any decision by the Secretary of State and does not relate to the decision under appeal. This is the wider interpretation of the relevant provisions. The Secretary of State contends that one-stop notices have a far narrower effect on appeals. His case is that the only grounds that can be put in issue on appeal are grounds placed before the Secretary of State when he made his decision or grounds raised in answer to a “one-stop notice" which relate to that decision. This is the narrower interpretation of the relevant provisions. The Asylum and Immigration Tribunal (“the AIT”) in both cases before us agreed with the submissions of the Secretary of State.

We are concerned with grounds other than human rights grounds or grounds for seeking asylum. It is accepted that they can be raised in any event.

The expression “one-stop notice”, or “one-stop warning”, is not used in the 2002 Act but the latter expression can be found in the explanatory notes to the Act. The expression “one-stop appeals” does not appear in the 2002 Act or the explanatory notes but is in common currency: see, for example, Macdonald’s Immigration Law and Practice (7 ed. 2008, para. 18.42), which states among other things that the basic idea of one-stop appeals is that “all the grounds relied on to remain in the UK should be considered in the course of a single appeal, so as to avoid delay and abuse.” The phrase “one-stop appeals” has received judicial recognition: Laws LJ in JM (Liberia) [2006] EWCA Civ 1402 at [23] observed that: “It is clear that [the 2002 Act] leans in favour of what are called one-stop appeals”. But this dictum does not determine how far the 2002 Act “leans in favour of” such appeals.

So far as the principal question is concerned, the course I propose to take is (1) to examine the background in each of the cases to show the setting in which the principal issue arises, (2) to explain the similarities between the appeals, (3) to outline the relevant statutory provisions (at the same time explaining the procedure adopted following service of a one-stop notice), and then (4) to analyse the principal question and to state my conclusions on it. There is a separate subsidiary issue (5), with which I will deal at the end of my judgment. This subsidiary issue is directed to whether the Immigration Judge was entitled to reach certain findings of fact. Finally, I set out the order which in my judgment should be made on these appeals.

The principal issue is one of statutory interpretation: thus the precise terms of the statutory provisions are central to resolving it. We have been shown other documents such as White Papers and instructions by the Immigration Directorate. I do not propose to refer to these as they are not admissible for the purposes of interpreting the relevant legislation in this case. What follows in this section of the judgment is an outline of the relevant statutory provisions. The relevant legislation is set out in the Appendix to this judgment for ease of reference. Save as stated, the legislation as set out in the Appendix is in the form in which it is now in force, including any amendments to date that have come into force.

BACKGROUND

The appellant is a citizen of Afghanistan. She was born on 4 May 1974. On 15 December 2005 she was granted a student visa valid until 31 August 2007. She then re-entered the United Kingdom and was granted further leave to remain as a student until 1 January 2008. In December 2007 she was awarded a degree in international relations by Middlesex University. On 16 January 2008, that is, before the expiry of her leave to remain, she submitted an application to leave to remain as a person intending to establish herself in business under Immigration Rule 206E (set out, so far as relevant, in the appendix to this judgment). This application was refused on 19 February 2008, and the notice of decision included a one-stop notice. On 10 March 2008 she submitted an application to leave to remain under the International Graduate Scheme (“IGS"). On 10 March 2008 she lodged a notice of appeal with the AIT against the refusal of the Secretary of State dated 19 February 2008. On 20 March 2008 the Secretary of State sent a letter to the appellant confirming that her documents regarding her application under the IGS had been forwarded to the AIT to be considered as part of her existing appeal.

On her appeal, Immigration Judge James concluded that the AIT had no jurisdiction to consider her second application and in addition dismissed her appeal under Rule 206E. Reconsideration was ordered. On 13 August 2009 Senior Immigration Judge Waumsley decided that the decision of Immigration Judge James should stand.

On this appeal, there is a subsidiary issue as to whether the Immigration Judge was wrong to say that the appellant had not qualified under the Immigration Rules.

The appellant on this appeal was born in Sri Lanka on 19 March 1976. She has entered the United Kingdom with leave to enter several occasions since January 1997. Her leave was due to expire on 30 September 2007. On 25 September 2007, the appellant, acting without legal advice, submitted an application for leave to remain on the basis of 10 years’ residence in United Kingdom. This application was refused by the Secretary of State on 16 October 2007. The Secretary of State also served a one-stop notice. On 1 November 2007, the appellant appealed against the Secretary of State’s refusal on the grounds (among other grounds) that the decision was not in accordance with the law and the Immigration Rules. On 13 November 2007, the appellant served a statement of additional grounds. This raised the grounds specified above and sought a variation of her leave to remain on the basis that she was a student. Since entering United Kingdom, the appellant has undertaken several courses at different universities. On 29 November 2007, the AIT (Immigration Judge Knowles) decided that the AIT had no jurisdiction to hear her appeal on the student basis. Reconsideration was ordered. On 6 August 2008, Senior Immigration Judge Perkins promulgated a determination finding no material error of law in the determination of the Immigration Judge.

THE POINTS OF SIMILARITY BETWEEN THE TWO APPEALS

In both cases, the appellants had limited leave to remain in the United Kingdom. Both applied for an extension and both were refused an extension by the Secretary of State. The Secretary of State refused the application of both appellants. They then had a right of appeal against his decision under s 82 of the 2002 Act (set out in the appendix to this judgment). The Secretary of State also served both appellants with one-stop notices.

Both appellants, having been refused leave to remain in the United Kingdom and served by the Secretary of State with a one-stop notice, appealed against the decisions made on their application for leave to remain, and in addition put forward grounds in response to the one-stop notice served on them which were not related to the grounds on which they had been refused leave to remain.

In both cases, the AIT held that they were not required to determine the new grounds put forward in response to a one-stop notice.

STATUTORY PROVISIONS

The relevant statutory provisions are s 3C of the Immigration Act 1971 (“the 1971 Act”) and various sections of the 2002 Act dealing with appeals and one-stop notices. The former deals with applications to vary leave to enter or remain. Appeals from decisions on such applications are governed by 2002 Act and thus it is appropriate to proceed on the basis, until the contrary appears, that Parliament intended those provisions to be coherent and to work as a harmonious whole.

This section was recently considered the decision of this court in JH (Zimbabwe) [2009] EWCA Civ 78. The effect of s 3C is that the person with limited leave to remain can make an application for variation of his leave before his leave expires. If he does so, his leave will be extended until that application is determined. However, he can make no further application to vary his leave to enter or remain until that happens: he may only apply to vary the application that he has already made (s 3C(4)). Richards LJ, with whom Laws and Wall LJJ agreed, held in JH (Zimbabwe) that this was true interpretation of s 3C and that its purpose was to prevent abuse of the system by the making of successive applications "leading to a successive extension of the original leave to remain." ([35]).

Against the backdrop of s 3C of the 1971 Act, the 2002 Act deals with immigration procedure and the procedure for appeal. The relevant provisions may be summarised as follows:

It is of some assistance to understanding the issue in this case to know how responses to one-stop notices are dealt with in practice. I set out the position in the next paragraph of this judgment.

A person served with a one-stop notice who wishes to adduce additional grounds ordinarily serves a statement of additional grounds. MacDonald’s Immigration law and Practice (para. 18.43) states:

“There is no statutory time limit for the making of a statement [of additional grounds] nor are there any statutory provisions as to the form in which such a statement is to be made. The IDI [Immigration Directorate Instruction] says, however, that when a person is served with a one-stop notice, the caseworker should tell him or her when a decision is likely to be made and that the obligation to state additional grounds in response to the warning is a continuing one. There is no statutory requirement for the Secretary of State or immigration officer to respond to a statement of additional grounds, but there is a statutory obligation on the tribunal hearing an appeal to consider any further grounds relied on in such a statement. The additional grounds could be further grounds for leave to enter or remain under the Immigration Rules, under a relevant Home Office policy, asylum or human rights or discrimination grounds.”

ANALYSIS AND CONCLUSIONS ON THE PRINCIPAL ISSUE

The arguments on the principal issue fall to be considered into three groups:

I have already noted that the expression “ one-stop appeal" is not to be found in the Act or the explanatory notes. It seems to be a phrase that has sprung into use primarily to describe an appeal in which a response to a one-stop notice is relevant. As I have already also noted, the consequences of failing to comply with a one-stop notice are not set out in the section which provides for such notices: namely, s120. The effect of such notices on an appeal has to be found by looking at s 85.

The essence of the case for the wider interpretation is this: it is said that the clear purpose of these various provisions is to bring as many decisions as possible within a single appeal, and to require all relevant matters to be determined within that single procedure. The scheme of the relevant provisions is more fully achieved if the wider interpretation contended for by the appellants is correct. If the narrower interpretation contended for by the Secretary of State is correct, the one-stop procedure would not include claims arising out of subsequent events, for example, a marriage contracted subsequent to the decision of the Secretary of State. Additional claims could not be put in issue in the appeal even if the appellant had made a mistake in identifying the proper basis of his application for leave to enter or remain

To test which interpretation is correct, it is necessary to descend to the detail of the relevant provisions. On this, counsel have focused on the concluding words of s 85(2) (“against the decision appealed against"), the words “ground of appeal” also in s 85(2), the expression “ the substance of the decision" in s 85(4) and the terms of s 96(2).

What is the function and meaning of the concluding words of s 85(2) (“against the decision appealed against")? By way of introduction to this point, as I see it, s 85 draws a distinction between decisions and material produced in response to a one-stop notice. So far as decisions are concerned, s 85(1) makes it clear that any decision in respect of which an appellant has a right of appeal is treated as included in any subsisting appeal. That is a provision, and as far as I can see, the only unambiguous provision in the 2002 Act in terms of a comprehensive "one-stop" procedure. It clearly provides for all decisions to be appealed at the same time. This is not as narrow a provision as it might at first sight appear because, when an appellant puts forward, in response to one-stop notice, a fresh ground for leave to enter or remain, the Secretary of State can investigate the matter and make a decision on it. He does not have to wait until the appeal from his earlier decision is concluded.

The provisions of s 85(2), which deal with material produced in response to a one-stop notice, are in stark contrast to s 85(1). The AIT does not have to consider every matter raised in response to a one-stop notice. It is only obliged to consider any such matter if two requirements are fulfilled: namely, (i) that the ground of appeal is of a kind listed in s 84(1), and (ii) that the ground of appeal is against the decision appealed against.

The argument of the appellants, put forward in the case of NV by Mr Scannell and in the case of AS by Mr Malik, is that the second requirement is satisfied in the case of a decision to refuse leave to enter or remain by showing that there is some other basis under the Immigration Rules on which leave to enter or remain could have been granted. In other words, a wholly new ground for leave to enter or remain can constitute a basis on which it can be said that the decision already made was not in accordance with Immigration Rules.

In support of this point, it can be seen that the first requirement of s 85(2) is cast in terms directed to a generic analysis of the ground of appeal. So the question is whether the ground of appeal at that level of abstraction falls within one of the subparagraphs of s 84(1). The satisfaction of this requirement does not turn on any communality of the facts in issue in the matter raised in response to the one-stop notice and the decision under review. On the same reasoning, it would be odd if the second requirement of s 85(2) fell to be determined at a wholly different level of abstraction.

These are formidable arguments. However, simply looking at the matter on a textual basis, I do not consider that that approach to the concluding words of s 85(2) is correct. If that is what Parliament had intended, it would have said "against a decision of a kind listed in s 82(2)” or omitted the second requirement altogether. The insertion into s 85(2) of the words "against the decision appealed against" must be assumed to have been the result of a deliberate decision by Parliament and the only purpose of such insertion can have been to limit the circumstances in which a matter raised in response to a one-stop notice would be required to be considered by the AIT.

As against this, the appellants draw attention to the reference to "substance of the decision" in s 85 (4). They say this is an indication that references to “the decision” in s 85(2) do not include the detailed grounds on which the decision was made. They say that a decision to refuse leave to remain on (say) the student basis is simply a decision to refuse leave to remain and that accordingly it can be shown that such decision is not in accordance with the Immigration Rules if in fact there is a ground on which the contrary decision could have been made.

Mr Scannell thus submits that Senior Immigration Judge Waumsley had wrongly relied on SZ (Applicable immigration rules) Bangladesh [2007] UKAIT 00037 to reach the contrary conclusion. Mr Scannell submits that SZ is distinguishable because it was a decision under Immigration Rule 310 (adoption). In that case, the AIT observed that:

“11.

It is important to bear in mind that the Tribunal is not the primary decision-maker in immigration cases. It hears appeals against decisions taken (see, EA (s 85(4) explained) Nigeria [2007] UKAIT 00013 at [7] clarifying the relevance in appeals of post-decision facts and the application of s 85(4) of the 2002 Act). Consequently, the focus of enquiry by the Tribunal must always be the basis upon which the application was made. It is that application, which leads the decision which is the subject of any appeal before the Tribunal. If an appellant seeks to assert a different basis from that put forward in his application upon which he should have been granted entry clearance or leave under the immigration rules, that is properly a matter for a fresh application, or possibly a variation of the existing application. It is not a matter for the tribunal to consider on an appeal against a decision made on the existing application.” (emphasis added)

Later in its decision, the AIT accepted that there would occasionally be situations where the basis of the application, or the scope of the decision, or the grounds themselves, would require it to go beyond the self-evidently applicable immigration rule in issue in that particular case, for example, where was an obvious link or connection with another rule. But that qualification is too narrowly drawn to have any bearing on the issue of interpretation on these appeals.

I do not accept Mr Scannell’s argument on this point. In my judgment, it is not correct to say that the decision was not in accordance with the Immigration Rules if the new ground raises a fresh basis for leave to enter or remain and does not undermine the correctness of the decision appealed against. A ground of appeal is not a ground of appeal “against the decision appealed against” if it would not, if accepted, lead to its reversal, as opposed to its being superseded by a new decision on the new evidence that leave to enter or remain should be granted. SZ affords some support for this conclusion in so far as it is dealing with the general position about appeals to the AIT. My conclusion on this point is also supported by the holding of the AIT in EA (s 85(4) explained) Nigeria [2007] UKAIT 00013 (a decision already referred to in the citation from SZ, above) where the AIT held:

“ …it is thus not open to an appellant to argue simply that, on the date of the hearing, he meets the requirements of the Immigration Rules. He can succeed only if he shows that the decision that was made was one that was not in accordance with the Immigration Rules… The correct interpretation of s 85(4) is perhaps best indicated by saying that the appellant cannot succeed by showing that he would be granted leave if he made an application on the date of the hearing: he can succeed only by showing that he would be granted leave if he made, on the date of the hearing, the same application as that which resulted in the decision under appeal." ([7])

Moreover, s 85(4) supports the wider interpretation. That provision is limited to empowering the AIT to accept new evidence relevant “to the substance of the decision". In its decision in EA, the AIT held that these words meant that the new evidence had to be relevant to the decision actually made. It added that:

“…a decision on a matter under the Immigration Rules is a decision on the detailed eligibility of an individual by reference to the particular requirements of the Rule in question in the context of an application that that person has made.” ([6])

In my judgment, this interpretation of s 85(4) is plainly correct. I accept that, if the effect of s 85(2) is that the AIT must consider all matters raised in response to a one-stop notice, without limitation, power to direct the service of evidence and skeleton arguments on the new grounds would be found in the case management powers of the AIT under rule 43 of the Asylum and Immigration Tribunal (Procedure) Rules 2005. But that does not diminish the point that it is odd, if that is the case, that the power to receive further evidence contained in s 85(4) does not extend to new evidence on all matters which might be brought forward by a one-stop notice. Mr Malik points out that there was no one-stop notice in EA but s 85(4) applies whether or not there is a one-stop notice. On the basis that this decision is correct in its interpretation of that provision, the wider interpretation faces the substantial difficulty that the express power to admit further evidence does not apply to grounds for leave to enter or remain on some new basis adduced in response to a one-stop notice.

The appellants will not be prejudiced if s 85(2) is limited to the grounds which relate to the grounds on which the Secretary State has refused permission. The Secretary of State accepts that the new claims, which do not relate to decisions of the Secretary of State would fall outside s 96(2). That provision requires, however, closer examination.

I have not overlooked the fact that the appellants’ argument is on the face of it supported by the terms of s 96(2). Logically, s 96(2) should mirror s 85(2): In other words, if the AIT is not obliged to deal with a matter had it been raised in response to a one-stop notice, it ought to be excluded altogether from s 96(2). Yet that situation is not in terms excluded from the potential operation from s 96(2). The Secretary of State’s submission has therefore to be that a Secretary of State could not reasonably form an opinion in that case that there was no satisfactory reason for the matter not having been raised earlier. However I accept that as a plausible approach because of the form of s 96(2). Parliament has not legislated by specifying a list of the conditions in which a s 96(2) certification can be made, but by conferring a discretion on the Secretary of State. While this is structured, this gives him considerable flexibility. In an area that is as complex in practice as immigration it is reasonable to suppose that it might have been felt that this was a more sensible way to proceed.

For the reasons given above, I conclude the textual indications support the narrower interpretation. I will now look at the contextual position.

In their decisions in each of the cases before us, the AIT was particularly concerned with the effect on the appellate function of the AIT if all matters raised by a one-stop notice had to be considered on an appeal. As is already apparent from the citation above from SZ, the AIT is not, in general, at least, a primary decision-maker.

If new matters are raised in response to one-stop notice, the Secretary of State might by the date of the hearing of the appeal have made a decision on some of those matters himself. However, he may not be in a position to make such a decision in the time between the response to one-stop notice (for which there is no stipulated time) and an appeal. This may be due to shortage of time or other reasons such as the difficulty of making enquiries. As a result, I would observe that the cases in which the AIT has on the wider interpretation to act as a primary decision-maker could be quite random, and their selection could be unsystematic. In addition, given the well-known pressure of immigration applications to the Secretary of State, it seems reasonable to conclude that there would be a substantial number of cases in which new grounds would be raised but which would not have been the subject of a decision by him and by the time of the hearing of the appeal to the AIT. On the wider interpretation they have to be decided by the AIT as a primary decision-maker. This would not be consistent with the usual role of the AIT, which is one of hearing appeals against decisions actually made.

Mr Jason Beer, for the Secretary of State, submits that the AIT would not necessarily have all the documents it needed to be a primary decision-maker, and that the AIT might also be called on to exercise the discretions conferred on the Secretary of State. He submits that it would be inappropriate for the AIT to become a primary decision-maker, or to exercise discretions conferred on the Secretary of State. Moreover, he points out that the applicant would lose one tier of appeal.

There are a number of possible answers to these objections. First, if a new matter is raised in response to a one-stop notice, the Secretary of State can, if appropriate, pre-empt any decision by the AIT and himself make a fresh decision. If this happens, the Secretary of State will retain his role as primary decision-maker. Secondly, even on the Secretary of State’s case, the AIT becomes to some extent a primary decision-maker because it is obliged under s 85(2) to deal with at least some new grounds raised in response to a one-stop notice. Thirdly, the Secretary of State has issued statements of his policy in a number of areas and so the scope for the exercise of discretion has been narrowed. Fourthly, in answer to the point that the applicant loses one tier of appeal, it may be said that it is often open to Parliament to restrict the tiers of appeal available to an applicant. Fifthly, although it was suggested in argument that the wider interpretation would mean that the AIT would have to conduct a wide-ranging enquiry to elicit whether any other ground for leave to enter or remain might be available to the applicant, there would be no need on the authorities for the AIT to consider grounds that had not been raised (see Uddin v IAT [1991] Imm AR 134). There is one qualification to be made to this, namely “Robinson obvious” grounds, including human rights grounds (see R v Secretary of State for the Home Department, ex parte Robinson [1998] QB 929). In that case this court held that although in seeking to appeal an immigration decision a claimant was required to state the grounds of his appeal, the appellate authorities were neither limited by the arguments actually advanced nor required to engage in a search for new grounds. Since the appellate authorities were obliged to ensure that the claimant's removal would not contravene the United Kingdom's obligations under the Refugee Convention, where there was a readily discernible and obvious point in his favour, which had not been taken on his behalf, they, and the High Court exercising its supervisory jurisdiction by way of judicial review, should nevertheless apply it. An "obvious" point is one that has a strong prospect of success (see per Lord Woolf MR at 946).

In the case of NV, Senior Immigration Judge Perkins considered that it was significant that s 120(2)(c) required the recipient of a one-stop notice to state any ground on which he should not be removed. The Senior Immigration Judge deduced from this that the primary function of a one-stop notice is to require an appellant to raise human rights grounds when they appeal an immigration decision. Mr Beer adopts this line of argument and submits that the narrower interpretation fulfils the intention of Parliament which, on his submission, is to give effect to human rights and asylum grounds only, in accordance with the United Kingdom’s treaty obligations.

In my judgment, these answers to the point that the AIT would on the wider interpretation become a primary decision-maker merely qualify the result: they do not dispose of the point completely. The AIT on the wider interpretation must be taken to be a primary decision-maker in a greater number of cases. In my judgment, having regard to the normal role of the AIT, it is unlikely that Parliament intended that the AIT would become a primary decision-maker on the substantial scale that the wider interpretation necessitates for all the reasons that the Secretary of State gives. That is not its normal role and there are obvious difficulties in its assuming this wider role. The more natural primary decision-maker would be the Secretary of State.

For the reasons given in this part of the judgment, I consider that the fact the wider interpretation would result in the AIT becoming a primary decision-maker in a significant number of appeals is in reality a further indication against the wider interpretation.

Mr Beer puts these arguments at the forefront of his argument. His contention is that it would be unlikely to be the true construction of s 85(2) that the AIT should consider all matters raised a one-stop notice, because this would enable an appellant by the back door to raise new grounds when by virtue of s 3C (see [6] above) he would be out of time if he tried to make a new application for leave to enter or remain based on it. In my judgment, this is a compelling argument. What reason would there be for Parliament, in a case to which s 3C applies, to require the AIT to consider a new ground for leave to enter or remain when it had already legislated in s 3C that such an application could not be made?

Mr Beer submits that by the time of the second application made by each appellant, s 3C(4) applied so that no such application lay. In effect, the raising of additional grounds in response to the one-stop notice constituted an abuse of s 3C because it amounted to the making of an application for variation after the time for doing so had expired.

In their response to this point, Mr Scannell and Mr Malik rely on the provisions of the 2002 Act. However, the critical provisions are ambiguous. In my judgment, this court should interpret them consistently with the clear policy in s 3C so as to produce a coherent whole of all these related provisions. The policy of s 3C has been considered and declared by this court to be to prevent successive extensions of applications for leave to enter or remain. Successive applications are likely to prolong the period in which a person’s status is uncertain and undetermined. The wider interpretation is simply inconsistent with this policy.

For these reasons, I consider that the inconsistency between the wider interpretation and s 3C of the 1971 Act is a strong reason for rejecting the wider interpretation. Every appellant for leave to remain who is seeking to extend their leave will have to make an application for variation of their leave to remain, and thus s 3C will be applicable to appellants in a substantial proportion of appeals to which s 85 applies.

It follows that I consider that the grounds for accepting the narrower interpretation are stronger than those for accepting the wider interpretation in relation to the textual indications, the contextual indications and the coherence of the statutory scheme when read with s 3C of the 1971 Act. In my judgment, the narrower interpretation represents a true interpretation of the obligation imposed on the AIT by virtue of s 85(2) of the 2002 Act.

The court has no discretion to modify the effects of s 3C(4), and so the narrower interpretation may have harsh results where an appellant makes an application for a variation of leave to enter or remain on a mistaken basis. In my judgment, that is a result of the true interpretation of the statutory scheme. Again there is no express provision for the situation where there is a change in circumstances because of an event subsequently occurring and resulting in a wholly different ground for leave to enter or remain. But of course the Secretary of State would be able to make a fresh decision if he thought fit. S 96(2) would be unlikely to apply in this situation.

In the case of AS, the second application was not one which the applicant could make: see s 3C(4) of the 1971 Act and the decision of this court in JH (Zimbabwe). The Secretary of State treated the matters that AS raised in her new application as if they had been made in a statement of additional grounds in response to a one-stop notice. The AIT then considered whether it was obliged to deal with the matters. In my judgment, this was the correct course of action.

Contrary to the appellants’ submissions on the facts, the AIT was not in my judgment wrong to reject AS’s further submission that the new grounds were sufficiently connected with those on which the Secretary of State had determined the application to fall within s 85(2). The ground raised in response to the one-stop notices was entirely separate from the grounds for leave to remain previously relied on. The application under the IGS was obviously different in substance from an application by AS to establish herself in business. Therefore, the AIT had no obligation to consider it. Similarly, in the case of NV, her additional grounds seeking leave to remain on the student basis was an entirely different basis from her previous application for leave to remain on the basis of ten years’ residence in United Kingdom.

SUBSIDIARY GROUND OF APPEAL RAISED BY AS

Essentially, this issue asks whether the Immigration Judge was entitled in law to reach certain findings of fact.

AS relied on Immigration Rule 206E. This sets out the requirements for an extension of stay as a person intending to establish himself in business in the United Kingdom. So far as relevant they require that the applicant:

“(ii)

has obtained a degree qualification…; and

(iv)

meets each of the requirements in paragraph 201(i) to (x).”

Under rule 201, the requirements to be met by a person seeking leave to enter the United Kingdom to establish themselves in business include requirements:

“(ii)

that he has not less than £200,000 of his own money under his control and disposable in the United Kingdom which is held in his own name….

(v)

that his level of financial investment will be proportional to his interest in the business.”

Certain matters decided by the Immigration Judge were successfully appealed or are no longer in issue, but those matters did not lead to the decision being set aside on reconsideration. As a result, a challenge to the decision is made based on what is submitted to be the consequence of her success on appeal.

The Immigration Judge held that AS was outside Immigration Rule 206E because she had not set up in business by the date of the decision. The Secretary of State conceded before the Senior Immigration Judge that the Immigration Judge was in error in this regard.

Likewise, the Senior Immigration Judge also found that the Immigration Judge had wrong to hold that AS had not obtained a degree. The Senior Immigration Judge was satisfied that she had done so. In those circumstances, the finding of the Immigration Judge on credibility had to be set aside.

The Immigration Judge went on in her decision to make detailed adverse findings about the business plan and intentions of AS that were not upset on reconsideration. Those findings are contained in a lengthy passage which I must set out in full. The Immigration Judge held at paragraphs 16 to 18 of her decision:

“16.

Even if this were not the case, the representative for the Appellant confirmed that there were no company books or company premises or certificate of incorporation in existence as no company had yet been set up by the Appellant. This is an embryonic business arrangement at the most early stages of start up. However, there are a number of apparent contradictions and concerns that are raised, which the Appellant does not satisfactorily answer in the submission of her written evidence and testimony. The copy agreements submitted are apparently signed by both the Appellant and her husband, and the funds apparently provided for this enterprise have been solely provided by her husband. There is no company in existence either in the UK or abroad in regard to this proposed business, there is no partnership deed executed by the Appellant and her husband, she is not a director in a company, and she is not a sole trader. It is not known on what formal basis she holds her husband’s assets, although she states in her witness statement she will be a sole trader who holds 100% of the assets, which contradicts the agreements submitted which are signed by her husband or herself. Clause 26.1 of the franchise agreement states that the Appellant is not a partner or agent of the franchisor and nor are they joint venturers. So the Appellant is also not in the position of joining an existing business. This also raises concerns about the Appellant’s right to control and dispose of the funds held in her account, and whether this is a disguised employment or whether the Appellant can meet her liabilities, due to the lack of information submitted.

17.

The business plan and financial projections for the proposed business appear not to relate to or be informed by the business accounts of work2go. The work2go accounts state that Mr Leung had a turnover of £305,000 for that financial year. However the financial projections of the Appellant refer to an income of £37,000-£40,000 per month, such that this would be in significant excess of the franchisor’s declared income and profit. In her testimony this discrepancy is explained away by stating that work2go accounts do not include all their businesses. This is not accepted. The accounts refer to the franchising business of the owner, Mr Leung, and refers to a profit for the financial year ending April 2007 as £279 after tax of £67. Bearing in mind the significant figure to be paid by all franchisees to the franchisor, it is questionable whether there is currently any franchisee operating in anything other than nominal profit based on Mr Leung’s accounts. The Appellant’s business plan refers to work2go stating that there are 3 stores in Manchester, although the oral evidence of the Appellant believes there is also a restaurant, despite the documentary evidence that this is a takeaway business. Furthermore in her testimony the Appellant confirmed that the figures in wok2go’s accounts did not represent 1,000s of pounds. Therefore it is of serious concern that work2go’s accounts refer to an extremely modest profit of 3 figures. It is of even more concern that the Appellant despite her apparent qualifications both her and abroad, does not know the difference between net and gross profit, yet is proposing to set up a business here. Once Mr Leung’s modest accounts are contrasted with the financial forecast for the proposed business in the Appellant’s business plan, referring to a revenue of £37,000 per month leading to a total revenue of £450,000 and a net income of £270,000, this lends serious weight to the finding that the figures submitted to the court cannot be relied on, on the balance of probabilities. The viability of this proposed business is seriously doubted in the face of such information.

18.

The Appellant’s business plan states that a start up figure of £200,000 is required for this embryonic proposed business. However she only has just over £1000 in her current account as at December 2007 and although holding £201,000 in her savings account for January 2008, this appears not to provide her sufficient money for accommodation and maintenance for herself and her son during the start up period. It is highly probable that this sum is insufficient for the Appellant to start up this business without resorting to employment or public funds. Furthermore, the source of the larger sum is not known. The Appellant states this has been provided by her husband but that she has lost the relevant documents to show this. The Appellant states she has no income from other sources other than her husband. However she has failed to show the source of this money to show that she has control over it and can apply it in the proposed business. Again this raises serious and doubts about the share profit arrangements entered into and whether the Appellant has control over the disposal of the funds in her accounts, such that the appeal is fatally undermined.” (emphasis added)

Mr Malik submits that the adverse finding on credibility also infected the adverse findings that the Immigration Judge made in the passage cited in the preceding paragraph about the lack of clarity in AS’s business plan and intentions, the various discrepancies referred to by the Immigration Judge and other unexplained matters.

In my judgment, the various findings were not based on the credibility but on various matters relating to the documents and other evidence produced by AS. Her reasons for rejecting AS’s case included what might be called structural reasons related to the way the business was set up and financial reasons relating to the funding for the business and AS’s participation in it. There is only one reference to AS’s evidence and I have italicised that reference. It can be seen from that italicised passage that the Immigration Judge in fact dealt with this evidence by holding that AS had not produced evidence to support her contention that she had control over certain sources of income and could invest her income in the business. The contention made was one which ought to have been supported by documentation and thus the Immigration Judge's rejection of her evidence was not the result of the adverse finding on credibility but the result of her failure to produce documentation which it would have been reasonable for her to produce.

Those reasons, I reject AS’s appeal on this ground.

DISPOSITION

For the reasons given above, I would dismiss AS’s appeal. As to NV, we were informed by the parties after these judgments were circulated in draft that NV had left the United Kingdom on 14 or 15 September 2009. Her appeal must therefore be taken to have been abandoned as from that date: s 104(4) of the 2002 Act. Had that not been the case, I would have dismissed her appeal also for the reasons given above in relation to the principal issue. The shorthand expression “one-stop appeals” does not mean that every ground raised by an appellant for leave to enter or remain in the United Kingdom in response to a one-stop notice served pursuant to s 120 of the 2002 Act must be considered by the AIT. Unless there has been a further decision by the Secretary of State, or human rights grounds or grounds for granting asylum are raised, only those grounds raised in response to a one-stop notice that relate to the decision under appeal need to be considered by the AIT.

Since writing this judgment I have had the privilege of reading the judgments of Lord Justice Moore-Bick and Lord Justice Sullivan and note that they have reached a different conclusion from me on the true interpretation of s 85(2). For the reasons given above, I respectfully disagree with their conclusion. It may be helpful if I note the principal grounds of my disagreement with what they say in their judgments:

a.

In my judgment, the words “against the decision appealed against" at the end of section 85 (2) cannot be read as meaning “against an immigration decision of a kind described in 82(2)” (cf per Lord Justice Moore-Bick at [81] and per Lord Justice Sullivan at [113]). Those are not the words that Parliament has used.

b.

My interpretation achieves the statutory purpose if, as I infer from the statutory language used, what Parliament wished to happen was that there should be a mechanism for removing the incentive in the system for successive disclosure of grounds for leave to enter or remain, with consequent delays.

c.

In my judgment, it is not correct to hold that Parliament intended that the Secretary of State should have to exercise a choice between relying on s 3C of the 1971 and s 120 of 2002 Act, and I am not persuaded that it matters that not all appellants will be subject to s 3C (cf per Lord Justice Moore-Bick at [86]).

d.

So far as coherence of the system is concerned, in my judgment, a statutory scheme that preserves the Secretary of State’s role as primary decision maker in all cases apart from asylum and human rights cases is a coherent one (cf per Lord Justice Sullivan at [99] et seq).

e.

As I see it, the function of s 120 is to give the Secretary of State a new and additional power to elicit further grounds for leave to enter or remain. While a court is bound to have sympathy for the unrepresented applicant who makes a mistake and inadvertently misses the time limit in s 3C, s 120 has not been inserted so as to give such an applicant a means of rectifying mistakes in his original application (cf per Lord Justice Sullivan at [106]).

Accordingly, I adhere to my conclusion explained above.

The main question raised by these two appeals concerns the effect of sections 85 and 120 of the Nationality, Immigration and Asylum Act 2002 (“the Act”), sometimes referred to as the “one stop” appeal provisions.

Section 82(1) of the Act provides a person in respect of whom an immigration decision has been made with a right of appeal to the Asylum and Immigration Tribunal (“the Tribunal”) against that decision. An immigration decision is defined in subsection (2) as including a wide range of decisions affecting a person’s right to enter or remain in the United Kingdom. The grounds on which an appeal may be made are set out in section 84(1). They include

“(a)

that the decision is not in accordance with the immigration rules;

and

(e)

that the decision is . . . not in accordance with the law.”

Section 85 of the Act deals with the matters to be considered by the Tribunal when hearing such an appeal. The material parts provide as follows:

“(1)

An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).

(2)

If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.”

Section 120 gives the Secretary of State the power to require a person in respect of whom an immigration decision has been or may be taken to state any additional grounds on which he should be permitted to enter or remain in the United Kingdom. It provides as follows:

“(1)

This section applies to a person if—

(a)

he has made an application to enter or remain in the United Kingdom, or

(b)

an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him.

(2)

The Secretary of State or an immigration officer may by notice in writing require the person to state—

(a)

his reasons for wishing to enter or remain in the United Kingdom,

(b)

any grounds on which he should be permitted to enter or remain in the United Kingdom, and

(c)

any grounds on which he should not be removed from or required to leave the United Kingdom.

(3)

A statement under subsection (2) need not repeat reasons or grounds set out in—

(a)

the application mentioned in subsection (1)(a), or

(b)

an application to which the immigration decision mentioned in subsection (1)(b) relates.”

Finally, it is necessary to refer briefly to section 96 of the Act which sets out the consequences of failing to respond to a notice given under the provisions of section 120. Subsection (2) provides as follows:

“(2)

An appeal under section 82(1) against an immigration decision (“the new decision”) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies–

(a)

that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,

(b)

that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and

(c)

that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice.”

The appeal of NV

The first appeal concerns NV, a young woman of Sri Lankan origin, who between January 1997 and October 2002 spent various periods of time in this country as a student pursuant to leave to enter granted from time to time for that purpose. She returned to this country on 27^th September 2002 with leave to remain here until 31^st August 2004. Subsequently pursuant to various applications her leave to remain was extended until 30^th September 2007. On 25^th September 2007 the appellant submitted an application for indefinite leave to remain on the grounds that she had been lawfully resident in this country for ten years. On 16^th October 2007 the Secretary of State refused her application on the grounds that she was unable to show that she had at least ten years continuous lawful residence and served on her a notice of decision to remove her, together with a notice under section 120 of the Act which included the following:

“You must now make a formal statement about any reasons why you think you should be allowed to stay in this country. This includes why you wish to stay here and any grounds why you should not be removed or required to leave.

. . .

You do not have to repeat any reasons you have already given us but if you do have any more reasons you must now disclose them.

If you later apply to stay here for a reason which you could have given us now, you may not be able to appeal if the application is refused

If after you have completed this form the reasons why you think you should be allowed to stay in this country change, or new reasons arise, you must tell us as soon as possible. Do not wait until your appeal has been heard.

If you later apply to stay here for a reason which you could have raised earlier, you may not be able to appeal if the application is refused.”

On 1^st November 2007 the appellant, then unrepresented, appealed against the Secretary of State’s decision on the grounds that the decision was “not in accordance with the law and the Immigration Rules.” On 13^th November she produced a statement of additional grounds repeating the ground referred to in her notice of appeal and adding that she had been in this country as a student, that her leave to remain had been extended for that purpose and that she was entitled to a further extension because she continued to fall within the relevant provisions of the Immigration Rules.

On 29^th November 2007 there was a hearing before Immigration Judge Knowles at which the Secretary of State submitted that the Tribunal did not have jurisdiction to consider the appellant’s argument that she should be permitted to remain in this country as a student and on 11^th December 2007 he promulgated a decision to the effect that that argument was well-founded. Following an application to the High Court Lloyd Jones J. directed that the Tribunal reconsider its decision and that led to the decision of Senior Immigration Judge Perkins upholding the decision of Immigration Judge Knowles against which this appeal is brought.

At the hearing before Senior Immigration Judge Perkins the appellant, who was represented by solicitors and counsel, was constrained to accept that she was unable to bring herself within the provisions of the Immigration Rules relating to lawful residence, having been out of the United Kingdom for more than eighteen months during the period on which she relied in support of her application. The senior immigration judge emphasised that she had made no attempt to conceal the true position; her application had been misconceived, but not dishonest. However, he concluded that the Tribunal had no jurisdiction to consider the appellant’s case that she should not be removed from this country, basing himself on the decision of the Tribunal in EA (Nigeria) v Secretary of State for the Home Department [2007] UKAIT 00013. His reasoning may be summarised as follows: section 85(4) entitles the Tribunal to consider evidence relevant to the substance of the decision; the substance of the decision was that the appellant had not been continuously resident in this country for ten years; the tribunal could not consider evidence relating to different grounds on which leave to remain might have been sought and granted; therefore it did not have jurisdiction to consider any such grounds.

The second appeal concerns a young woman, AS, of Afghan origin. She entered this country as a student in December 2005 and was subsequently granted leave to remain until 31^st January 2008. On 5^th December 2007 she graduated as a Master of Arts at the Middlesex University. On 16^th January 2008 the appellant applied for leave to remain as a graduate intending to establish herself in business, but on 19^th February 2008 her application was refused by the Secretary of State, who also served on her a notice under section 120 of the Act. (That notice was in terms similar, but not identical, to that served on NV, but the differences are immaterial for present purposes.) On 10^th March 2008 she made a second application for leave to remain under the International Graduate Scheme and on the same day she lodged an appeal against the rejection of her first application. On 20^th March the Secretary of State wrote to the appellant informing her that her second application had been sent to the Appeals Directorate for consideration as part of her existing appeal.

The appeal was heard by Immigration Judge James on 8^th April 2008. On 21^st April 2008 she promulgated a decision in which she held that the Tribunal had no jurisdiction to consider the appellant’s second application and dismissed the appeal relating to her first application. That decision was the subject of reconsideration by Senior Immigration Judge Waumsley, who held that the original decision should stand. It is his decision against which AS now appeals.

Several grounds were advanced on behalf of the appellant for challenging Immigration Judge James’s decision. I shall come to consider the others at a later stage, but for the moment I propose to deal only with the first of them, namely, that Immigration Judge James had been wrong to hold that the Tribunal had no jurisdiction to consider the second application. As to that, Senior Immigration Judge Waumsley rejected the submission on the grounds that the point had not been raised until the hearing itself and had not been the subject of any application to the Secretary of State, who had therefore made no decision on it. He emphasised that the Tribunal was not the primary decision-maker in immigration cases and held there had been no decision by the respondent that could form the basis of an appeal.

Section 85(2) of the Act imposes a duty on the Tribunal to consider any matter raised in a statement made by an appellant in response to a notice given under section 120 which constitutes a ground of appeal of a kind listed in section 84(1) against the decision the subject of the appeal. On behalf of NV Mr. Scannell submitted that the relevant “decision” to which section 85(2) refers is a decision of a kind mentioned in section 82(2), in this case the decision to refuse to vary the appellant’s leave to remain in the United Kingdom as contemplated by paragraph (d). He submitted that the Tribunal had confused the substance of the decision (the refusal to vary the appellant’s leave) with the reasons for the decision (the appellant’s inability to establish ten years’ lawful residence) and that as a result it had misinterpreted the statutory provisions. Similar submissions were made by Mr. Malik on behalf of AS.

Mr. Beer for the Secretary of State accepted that the critical issue in this appeal is the meaning of the expression “the decision appealed against” in section 85(2). He submitted that the effect of the appellants’ submissions was to require the Tribunal to consider in each case whether the appellant met the requirements of any of the immigration rules, even if they had not previously been raised in the course of the proceedings. That was said to follow from the terms of section 86(3), which requires the Tribunal to allow the appeal if the decision against which it is brought was not in accordance with the law. He submitted that that would undermine the primary decision-making role of the Secretary of State. He also submitted that it would undermine the detailed provisions of the rules governing the procedure before the Tribunal, which require the appellant to set out his case, including his grounds of appeal, and restrict his right to vary them without permission. As to the construction of the statutory provisions, Mr. Beer submitted that the purpose of section 82(2) was simply to identify in summary terms the classes of decision that attract a right of appeal and that a distinction is to be drawn between the expression “the decision” as used in section 85 (1) and (2) and “the substance of the decision” as used in section 85(4). He also relied on the effect of section 3C of the Immigration Act 1971, which, he submitted, was inconsistent with the interpretation of the Act put forward by the appellants.

In common with Arden LJ I do not think that any reliance can be placed on expressions such as such as “one stop notice”, “one stop appeal” or “one stop process”, the use of which has now become widespread. Such shorthand expressions have their uses, but are apt to mislead and in any event are no substitute for a proper analysis of the statutory provisions. However, the language of those sections of the Act to which I have referred, in particular sections 85(2), 96(2) and 120, does in my view demonstrate that they are intended to form constituent parts of a coherent procedure designed to avoid a multiplicity of applications and appeals. Section 82 establishes a general right of appeal against an “immigration decision” and provides the context in which the word “decision” in sections 84 and 85 is to be interpreted. In my view it is clear that the expression “immigration decision” in section 84(1) has the same meaning as in section 82(1) and that the word “decision” in that subsection must bear the same meaning.

Sections 82 and 84 provide the context for the interpretation of section 85. Here again, the word “decision” in subsection (1) must in my view mean an immigration decision of the kind identified in section 82(1); and the word “decision” in subsection (2) must have the same meaning. Section 85(2) imposes a duty on the Tribunal to consider any matter raised in a statement made under section 120 insofar as it constitutes a ground of appeal of a relevant kind against the decision under appeal. Thus far, it seems to me, the natural meaning of these provisions is to impose on the Tribunal a duty to consider matters raised by the appellant insofar as they provide grounds for challenging a substantive decision of a kind identified in section 82 that affects his immigration status. On the face of it they do not restrict that duty to considering grounds that relate to the reasons for that decision or to the original grounds of appeal.

The terms of sections 120 and 96(2) reinforce that interpretation. Section 120 applies to a person in respect of whom an immigration decision has been or may be taken. That harks back to section 82. Section 120(2) allows the Secretary of State to require that person to state any grounds on which he should be permitted to enter or remain in this country (or should not be removed), but subsection (3) expressly provides that such a statement need not repeat any grounds set out in the application to which the decision relates. That seems to me to contemplate that the statement provided under section 120 will generally contain new grounds for challenging the decision rather than additional evidence or material supporting the original grounds. Section 96(2) reinforces that interpretation, because it contemplates a decision made in respect of a new application based on grounds which the applicant could have raised in response to a notice under section 120. That indicates that the matters intended to be raised in response to such a notice are of a kind that would be capable of supporting a fresh application and that the purpose of the notice is to impose on the appellant a duty to put forward in response to it any grounds he may have for challenging the substance of the decision made against him, rather than simply the grounds on which it was made. It is interesting (but no more) to note that the terms of the notices served on the two appellants whose appeals are before us were consistent with that interpretation.

All these provisions point towards a procedural scheme under which the appellant is required to put forward all his grounds for challenging the decision against him for determination in one set of proceedings and the Tribunal is placed under a corresponding duty to consider them. To that extent they may fairly be described as comprising a “one stop process”. It follows, however, that the notice is not intended to be restricted to matters relating to the original grounds of application or that the decision being challenged can be defined by reference to the particular facts on which it was based. In my view the provisions only make sense if the decision to which section 85(2) refers is understood to be an immigration decision of a kind described in section 82(2).

In the case of NV Senior Immigration Judge Perkins reached the opposite conclusion, relying in part on what he considered to be the anomaly of allowing an appellant to challenge the decision on grounds quite different from those on which the original application was based and in part on what he understood to be the effect of certain passages in EA (Nigeria) relating to the effect of section 85(4). In the case of AS Senior Immigration Judge Waumsley rejected the appellant’s argument because her additional grounds were unconnected with the grounds of her original application and because the Tribunal was not intended to be a primary decision-maker: SZ (Bangladesh) (Applicable Immigration Rules) [2007] UKAIT 00037.

I do not find any of those reasons persuasive. There would be little point in requiring a person to put forward all the grounds on which he says he should be allowed to enter or remain in this country if he were not able to add to those on which he had previously relied. The whole tenor of the legislation points to the conclusion that the purpose of section 120 is to flush out all the grounds on which the applicant may seek to rely so that they can be considered at the same time. Section 85(4) itself, in my view, has little bearing on the present case, being concerned only with the evidence that the Tribunal may consider when hearing an appeal. The argument that an appellant will be unable by reason of section 85(5) to adduce evidence in support of a completely new ground of challenge and that therefore the interpretation of subsection (2) favoured by the appellant must be wrong goes far too far. It may be that in a limited class of cases the prohibition on hearing evidence of matters that post-date the decision under appeal will prevent the appellant from effectively pursuing an additional ground, but that is not the case with either of the present appeals, in which the matters relied on all pre-date the decision, and it is unlikely to be so in the majority of cases.

Nor do I consider that there is a great deal of force in the argument that the effect of the appellants’ argument is to make the Tribunal the primary decision-maker in relation to any additional grounds. Of course, the Secretary of State is normally the primary decision-maker in immigration matters, but in practice the Tribunal makes many decisions which are indistinguishable from those made by the Secretary of State and is quite capable of carrying out that function and it is the responsibility of the appellant to ensure that it has all the material it needs to make a decision. Ultimately, however, the question must be whether the Act was intended to impose on the Tribunal a responsibility of that kind in relation to matters raised in response to a notice under section 120. There is no deeply entrenched presumption that such matters are the exclusive responsibility of the Secretary of State and therefore no strong presumption that that is not what Parliament can have intended. It must be borne in mind that the service of a notice under section 120 is in the discretion of the Secretary of State. He is not obliged to take that step and will presumably do so only if he is content that the Tribunal should consider any matters put forward in response to it. In any event, the language of the statutory provisions is in my view quite clear.

Mr. Beer submitted that section 3C(4) of the Immigration Act 1971 (“the 1971 Act”) pointed strongly against the interpretation for which the appellants contend. Section 3C operates in favour of a person who has applied for a variation of limited leave to enter or remain in this country to extend that leave while the application is pending. However, subsection (4) prohibits a further application for variation being made while leave is extended under the statutory provisions: see the decision of this court in JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78. Mr. Beer therefore submitted that to interpret the provisions of section 85(2) as requiring the Tribunal to consider entirely new grounds of challenge to the Secretary of State’s decision would be inconsistent with the provisions of that subsection. The point is potentially of some importance to appellants in that situation because their leave to remain will lapse on the determination of the original application and they will be liable to immediate removal. Any new application to enter and remain in this country would then have to be made from abroad.

If the interpretation of section 85(2) put forward by the appellants were invariably at odds with the provisions of section 3C(4) Mr. Beer’s argument would have more force, but section 3C(4) only applies to those whose existing leave to enter or remain is extended by statute and has no application to those who make their applications well before their existing leave expires. More important, however, is the fact that the service of a notice under section 120 is entirely in the option of the Secretary of State. He can choose not to serve a notice, in which case the appellant who falls within section 3C(4) is restricted to the scope of his original application. If, however, the Secretary of State chooses to serve a notice under section 120, he invites and requires the appellant to put forward any additional grounds that may be available to him. I do not think that section 3C(4) of the 1971 Act is inconsistent with the appellants’ interpretation of section 85: taken as a whole the statutory scheme gives the Secretary of State the power either to rely on the restrictive effect of section 3C(4), with the prospect of further proceedings at a later date, or to ensure that grounds for seeking the same relief that would otherwise have to be pursued in those further proceedings can be swept up into, and considered as part of, the existing proceedings.

For these reasons I have reached the conclusion that the decision of the Tribunal on this point was wrong and would allow each of these appeals on this ground alone.

AS relied on two other grounds in support of her appeal against the Tribunal’s decision: that it had misinterpreted the provisions of 201 and 206 of the Immigration Rules; and that it had wrongly held that certain errors of law identified in the original decision were immaterial and did not provide grounds for reaching a contrary decision.

The principal ground advanced under this head related to the nature of the business which the appellant proposed to establish in this country. As a person seeking leave to remain in this country under paragraph 206E of the Immigration Rules it was necessary for her to satisfy the requirements of paragraph 201. These include: that she held at least £200,000 in her own name in this country which she would be investing in the proposed business; that she had sufficient additional funds to support herself and any dependants without recourse to employment or public funds until such time as the business produced an income; that she would have a controlling or equal interest in the business; and that her share of the profits would be sufficient to maintain herself and any dependants without recourse to employment or public funds.

Immigration Judge James found that the business that the appellant proposed to set up based on a franchise for take-away food was at best at an embryonic stage. The structure of the business was unclear: the appellant’s husband had provided the capital and was a party to certain agreements relating to the franchise, but the appellant herself said that she was proposing to act as a sole trader. That caused the Tribunal to doubt whether she did in fact control the funds in her name and to think that she might in fact be a disguised employee. Moreover, the immigration judge did not consider that the funds available to the appellant were sufficient to maintain her during the start-up period as well as to finance the business. She also found that the business plan and financial projections provided by the appellant were not supported by the franchisor’s accounts and that it was doubtful whether the business would be profitable, let alone produce sufficient income to support the appellant and any dependants. For all those reasons she held that the appellant was unable to satisfy the requirements of paragraph 201. On reconsideration Senior Immigration Judge Waumsley held that, insofar as the decision proceeded on the basis that the appellant had not already established her business, there had been an error of law, but one that was immaterial.

Mr Malik submitted that Immigration Judge James had wrongly approached the matter on the basis that in order to bring herself within the rules the appellant had to show that she had already established a business. That, he submitted, was an error or law and the fact that the appellant’s business was at an embryonic stage was irrelevant. He submitted that the error was significant and not one that could properly be dismissed as immaterial.

Mr. Malik may be right in saying that Immigration Judge James was wrong to proceed on the basis (if she did) that in order to satisfy paragraph 201 the proposed business must be more than embryonic, but in my view his submission did not do justice to her decision. It is true that she did draw attention to the fact that little had been done to set it up and did describe it as “embryonic”, but as I read her decision she did so in the context of giving rather broader consideration to whether the various aspects of paragraph 201 were satisfied. The substance of her finding is that, taken in the round, the material before her did not support the conclusion that the proposed business was capable of being established successfully or, if it were established, would be viable. Nor was she satisfied that the appellant had sufficient assets to support herself during the start-up stage or thereafter. I doubt whether she did commit any error of law, but if she did she was entitled to make those findings and the error was immaterial. In these circumstances I do not think it can sensibly be argued that the other errors of law identified by Senior Immigration Judge Waumsley, relating to the date on which the appellant obtained her degree and her original intention to leave this country following graduation, were material to her decision. For these reasons I do not think that there is any merit in either of the additional grounds.

In principle, therefore, I would allow these appeals and in each case remit the matter to the Tribunal for consideration of the additional grounds raised by the appellant in response to the notice given under section 120. However, we have been informed that since the conclusion of the hearing NV has left the United Kingdom for Sri Lanka and accordingly by virtue of section 104(4) of the Nationality, Immigration and Asylum Act 2002 her appeal is to treated as abandoned.  It is therefore agreed that no order should be made on her appeal, save in relation to costs.

Arden LJ has set out the factual background to these two appeals, explained the similarities between them, and outlined the relevant statutory provisions. I agree with her view that it is appropriate to proceed on the basis that Parliament intended those provisions to be coherent and to work as a harmonious whole. For the reasons set out below, I do not agree with her conclusion that the narrower interpretation produces such a result.

I readily accept the proposition that, since the principal issue is one of statutory interpretation, the precise terms of the statutory provisions are of central importance, and the other documents to which we have been referred are not admissible for the purpose of interpreting the relevant legislation. However, I think that it is instructive to examine in a little more detail how the Secretary of State’s “One-stop” procedure operates in practice, to see whether the procedure fairly reflects the narrower interpretation of the primary legislation contended for on behalf of the Respondent in these appeals.

The “One-stop” procedure
The procedure is largely governed by subordinate legislation made under the 2002 Act. The Notice of Immigration Decision dated 17^th October 2007 given to NV in compliance with the Immigration (Notices) Regulations 2003 made under section 105 of the 2002 Act told her that she was entitled to appeal under section 82(1) of the 2002 Act, enclosed a Notice of Appeal in the prescribed form, and contained the following, standard form “One-stop” warning:

“One-Stop Warning – Statement of additional grounds

•

You must now make a formal statement about any reasons why you think you should be allowed to stay in this country. This includes why you wish to stay here, and any grounds why you should not be removed or required to leave.

•

The statement should be made on the form NOTICE OF APPEAL if you are appealing this decision. If you are not appealing but have further reasons you wish us to consider you should send them to reach us within the next 10 working days (5 working days if you are detained).

•

You do not have to repeat any reasons you have already given us but if you do have any more reasons you must now disclose them.

•

If you later apply to stay here for a reason which you could have given us now, you may not be able to appeal if the application is refused.

•

If, after you have completed the form, the reasons why you think you should be allowed to stay in this country change, or new reasons arise, you must tell us as soon as possible. Do not wait until your appeal has been heard.

•

If you later apply to stay here for a reason which you could have raised earlier, you may not be able to appeal if the application is refused.

•

This ongoing requirement to state your reasons is made under section 120 of the Nationality, Immigration and Asylum Act.”

The notice served on AS was in similar terms.

The Notice of Appeal for in-country appeals to the AIT – Form AIT-1 – approved by the President of the AIT pursuant to rule 8 of the Immigration Tribunal (Procedure) Rules 2005 tells Appellants by way of introduction that:

“It is in your interest to complete this form as thoroughly as possible, and state all your grounds in order for your appeal to be dealt with efficiently.”

Section 4 of AIT-1, headed “Grounds of Appeal”, requires the Appellant to:

“set out the grounds for your appeal and give the reasons in support of these grounds – that is, why you disagree with the decision. You must do this now because you may not be allowed to mention any further grounds at a later date…..You should include in this section any parts of your claim that you think have not been addressed in the refusal letter. You must say if you have raised these issues before.”

Section 5 of AIT-1 is headed “Statement of additional grounds”. The Appellant is told:

“If your notice of decision requires you to make a Statement of additional grounds, you should make the statement in this box. This section refers to any other reasons why you think:

◦

You should be allowed to stay in the United Kingdom, including any reasons relating to the European Convention on Human Rights

◦

You should not be removed or required to leave.

Do not repeat here any grounds and reasons that you have already given in Section 4.

You must give all these additional grounds and reasons now because you may not be able to make any other applications to appeal if this current application is refused. You should explain why you did not give these reasons before.”

It will be noted that the “One-stop” warning and Form AIT-1 tell Appellants that their Statements of additional grounds must contain “any” or “any other” reasons why they think that they should be allowed to stay in the UK. These “other reasons” may include but, implicitly in the case of the One-stop warning, and explicitly in the case of Form AIT-1 are not limited to human rights grounds. The express purpose of the Statement of additional grounds is not to amplify, or repeat the Appellant’s reasons for disagreeing with the decision appealed against. Section 4 of AIT-1, when read in the light of the introductory advice to Appellants, makes it clear that they must set out in Section 4 all, and not merely some, of the reasons why they disagree with the decision, including any issues, not raised before; and having done so they should not repeat those reasons in Section 5 of the Notice.

Compliance with a paragraph or paragraphs of the Immigration Rules (“the Rules”) not previously relied upon by the Appellant, perhaps in error because of a lack of legal advice, or because of a change of circumstances, such as marriage to a UK citizen, after the making of the application would, on the face of it, appear to fall squarely within the many and various “other” reasons why Appellants might think that they should be allowed to stay in the UK. Having been told that they must raise such an additional ground, on pain of not being able to appeal against a later application on that ground if they fail to mention it in Section 5 of their Notice of Appeal to the AIT, it seems to me that Appellants would have good reason to question the coherence of the statutory scheme if they were then to be told by the AIT that it had no jurisdiction to consider the additional ground that they had been ordered by both the Secretary of State and the AIT to put forward.

In referring to these features of the statutory “One-stop” procedure I do not suggest that it is permissible to use forms prescribed by subordinate legislation as an aide to interpreting the primary legislation. It should, however, be recognised that there is a marked discrepancy between the contents of the statutory notices served by the Respondent on Appellants, many of whom are not legally represented, and the Respondent’s narrower interpretation of the primary legislation. The terms of the notices served by the Respondent are consistent with the wider interpretation contended for by the Appellants.

I gratefully adopt Arden LJ’s three-fold grouping of the arguments on the principal issue, but find it convenient to consider them in reverse order, as follows:

The effect of section 3C of the 1971 Act as interpreted by this Court in JH (Zimbabwe) [2009] EWCA Civ 78, is set out in paragraph 14 of Arden LJ’s judgment. I do not consider that the wider interpretation of the relevant statutory provisions in the present case produces any inconsistency, or lack of coherence with section 3C as interpreted in J H (Zimbabwe). Section 3C prevents Appellants from making, of their own volition, new applications for leave to enter or remain, thereby giving themselves the benefit of successive extensions of their original leave to remain. The position under section 120 is quite different. If an Appellant is served with a section 120 notice he is given no choice in the matter: he must state any reasons he may have for wishing to enter or remain in the UK, and any grounds on which he should be permitted to do so. The Secretary of State is not required to elicit those reasons if he does not wish to do so. Section 120 provides that he “….may by notice in writing require…” a Statement of additional grounds. If the Secretary of State chooses to exercise his discretion to impose such a requirement on an Appellant there is no obvious reason why these additional grounds – which are not limited to human rights grounds – should not be considered in the appeal process.

It is clear that the underlying legislative policy is to prevent successive applications which, as Arden LJ says, are likely to prolong the period in which a person’s status is uncertain and undetermined. In my judgment, that policy is better served by a “One-stop” procedure that enables all, rather than merely some, of an Appellant’s “other grounds” for remaining in the UK to be considered by the AIT at one appeal hearing. The inconsistency between the narrower interpretation and the underlying policy objective – to prevent successive applications – is a powerful reason for preferring the wider, rather than the narrower, interpretation, since the latter encourages a “Multi-stop” appeal process.

Adopting the wider interpretation would result in the AIT having to take on the role of primary decision-maker in an increased number of cases. There is no material before the Court which would indicate what the extent of that increase might be, but in any event I do not consider that the prospect of some increase is a significant argument in favour of adopting the narrower interpretation. It is common ground that section 85(2) requires the AIT to consider additional asylum and human rights grounds if they are raised by an Appellant in response to a “One-stop” notice. The issues raised by such grounds – whether an Appellant would face a real risk of persecution on return, whether any interference with his family life would be disproportionate – tend to be much more open-textured than the issues raised by Appellants under the Rules.

The Rules comprise a very comprehensive, detailed and for the most part highly prescriptive, code. Although the code does leave some scope for the exercise of discretion, since in practice very few decisions are taken by Ministers and the great majority of decisions are taken by, often relatively junior, officials on their behalf, there is a great deal of very detailed, non statutory, guidance in the form IDIs and other published material as to how the various discretionary powers under the Rules should be exercised. The role of primary decision-maker in respect of any additional grounds based on alleged compliance with the Rules is likely to be more straightforward, and require a lesser element of discretionary judgement, than the role of primary decision-maker in respect of additional asylum and human rights grounds.

Moreover, there is in practice often a degree of overlap between additional grounds based on compliance with the Rules and asylum and human rights grounds. By way of example, an unrepresented Appellant who mistakenly applied for leave to remain on the wrong basis and failed to mention their marriage to a UK citizen, or who married after making their application, and who raised the issue in response to a section 120 “One-stop” notice would be able on appeal to the AIT to rely on the marriage as an “other” reasons for being allowed to stay in the UK insofar as it was the basis of additional grounds relying on Article 8 of the European Convention on Human Rights, but would not, on the narrower interpretation, be able to rely on the marriage for the purpose of demonstrating compliance with the Rules, unless, presumably, the Appellant’s compliance with the Rules was a “Robinson obvious” point which the AIT should take of its own motion in any event. Long residence is another example where the evidence of long residence may well be relevant for the purposes of both the Rules and Article 8. An Appellant who erroneously failed to rely on 10 years residence in the UK in his rejected application could rely in his additional grounds of appeal on his length of residence for the purposes of Article 8, but not as demonstrating compliance with the Rules. A coherent “One-stop” appellate system would enable the AIT to consider all, and not merely some, of an Appellant’s potentially overlapping grounds.

If there is a concern that the AIT would be overburdened by an increased role as primary decision-maker, the remedy lies in the hands of the Secretary of State: having chosen to require the Appellant to state any additional grounds the Secretary of State should make the necessary administrative and procedural arrangements to enable him to make a decision or decisions on them. Although section 120 does not stipulate a time limit for responding to a “One-stop” notice, Mr Beer accepted that the power to make Rules under section 106 of the 2002 Act is broad enough to enable the imposition of a time limit for raising additional grounds. In practice, there is such a time limit because of the very tight deadlines within which Notices of Appeal, incorporating section 5 in AIT-1, must be received by the AIT: 5 or 10 working days depending upon whether the recipient of the Secretary of State’s decision is, or is not, detained under the Immigration Acts. For these reasons I consider that the contextual arguments tend to support the wider rather than the narrower interpretation.

The starting point is section 120. Bearing in mind the provisions of section 96(2), the reference in paragraph (a) of subsection 120 (2) to “his reasons” means all, not merely some of the applicant’s reasons. “Any grounds” in paragraphs (b) and (c) of subsection 120 (2) means what it says: any grounds, not “any human rights or asylum grounds”. When Parliament wishes to refer to the human rights or refugee conventions in the 2002 Act it does so expressly: see for example section 84(1)(c) and (3).

The consequences of a failure to state all of the reasons or any grounds in response to a section 120 notice are spelt out in section 96(2). No appeal may be brought against the Secretary of State’s rejection of another application which relies on those reasons or grounds if the Secretary of State or an immigration officer certifies that the application:

“relies on a matter which should have been, but has not been raised in a statement made in response to [the section 120] notice.”

Bearing these provisions in mind it would, in my judgment, be the antithesis of a coherent and harmonious statutory scheme if the AIT had jurisdiction to consider on appeal only some, but not all, of the additional grounds which the Appellant had been required to state on pain of being prevented from basing any further appeal upon them. Since that would be the consequence of adopting the narrower interpretation, I would adopt that interpretation only if compelled to do so by very clear words in section 85.

The words “against the decision appealed against” at the end of subsection 85 (2) would appear to be the only justification for the narrower interpretation. Is “the decision appealed against” the decision to refuse to vary the appellant’s leave to remain in the UK, or the decision to refuse to vary leave to remain under paragraph X of the Rules? I accept that, looking at the words in isolation, in ordinary speech practitioners referring to “the decision appealed against” would be referring to the Secretary of State’s decision in response to the particular application made by the applicant: not simply a refusal to vary leave to remain, but a refusal to vary leave to remain under paragraph X of the Rules.

However, section 84 (2) does not stand alone. It must be construed in the context of a statutory scheme which requires the appellant to state any additional grounds, which are not confined to the merits of the Secretary of State’s decision in respect of paragraph X of the Rules, but which challenge the refusal of leave to remain: “his reasons for wishing to….remain…” “any grounds on which he should be permitted to remain”.

The 2002 Act defines those decisions in respect of which an appeal may be made to the AIT and the grounds on which such an appeal may be brought in sections 82 and 83 respectively. It is readily understandable that the AIT should not be required to consider a matter raised in a statement of additional grounds if it does not constitute one of the grounds on which an appeal may be brought under section 83, or if it seeks to challenge either a different category of immigration decision as defined by subsection 82(2) to that which has been taken (e.g. refusal to vary leave where entry clearance has been refused), or some other decision against which there is no right of appeal under section 82. Since section 85 (2) is concerned with Statements of additional grounds which must include any reasons why an appellant should be allowed to remain, and which are expressly not confined to the reasons why he should be allowed to remain under Rule X of the Rules, I am not persuaded that the reference to “the decision appealed against” must be a reference to the decision to refuse to vary leave to remain under Rule X, rather than the decision to refuse to vary leave to remain, being one of the immigration decisions as defined by section 82 (2). Such an approach to section 85 (2) would be consistent with the reference in section 85 (4) to “the substance of the decision”.

I note the Tribunal’s Determinations in SZ (Applicable immigration rules) Bangladesh [2007] UKAIT 00037 and EA (section 85 (4) explained) Nigeria [2007] UKAIT 00013, referred to in the judgment of Arden LJ, but the AIT in those cases did not consider how section 85 (2) should be interpreted so as to be coherent, and work in harmony with sections 96 and 120, bearing in mind the statutory purpose underlying those provisions.

I agree with Arden LJ that the subsidiary ground of appeal raised by AS must be dismissed for the reasons given in her judgment.

For the reasons set out above I would allow both appeals on the principal issue. Since NV has left the United Kingdom, the only order in respect of her appeal should be an order as to costs.