Anwar & Anor v Secretary of State for the Home Department

These three appeals raise a common issue: if the immigration decision which is being appealed to the Immigration and Asylum Chamber carries no right of in-country appeal, but the point is not taken on appeal to the First-Tier Tribunal, can it thereafter be contended that there was no jurisdiction to entertain the appeal?

Mr Adjo’s case raises an important further issue: even if the principal ground attracts no right of appeal, does the introduction of a human rights ground carry an in-country right of appeal?

For present purposes the facts can be shortly stated. For reasons which will become apparent, we include the facts of Ms Pengeyo’s case notwithstanding that on the eve of the hearing the material decision was withdrawn by the Home Secretary and the appeal accordingly compromised.

Ms Pengeyo, a Namibian national, enrolled in December 2006 as a dental nursing student at the London School of E-Commerce, an institute at that time recognised as bona fide by the Home Office, and was granted leave to remain for this purpose until January 2009. In May 2008, however, the college was removed from the register of training and education providers because it had been found to be issuing bogus qualifications and providing no real training. Ms Pengeyo asked the Home Office for advice and was advised to find a new provider, which she did. Despite this, the Home Office in November 2008 made a decision to remove her from the United Kingdom on the ground that she had obtained leave to remain by deception. It was subsequently found by the then Asylum and Immigration Tribunal (AIT) (IJ Jamieson) – subject to the question of jurisdiction to which I will come – that Ms Pengeyo had acted honestly throughout and had been deceived by the college into parting with a substantial amount of money for tuition which, while unsatisfactory, was by no means non-existent. The Home Office, he found, had had “no sufficient basis upon which to infer that the appellant ought to have known [the college] was not a genuine institution”.

Very much the same happened to Mr Anwar, a national of Pakistan. He had leave to remain until January 2009 in order, latterly, to study at the London School of E-Commerce. In November 2007, while the college was still on the register, he left it because its service was substandard and joined a more reputable institute. Yet, in consequence of the removal of the college from the Home Office register the following year, he too was notified of an intention to remove him on the ground that he had obtained leave to remain by deception. On appeal to the AIT, IJ Bailey-King unsurprisingly acquitted him of any deception. His counsel did not seek to press his Article 8 claim if, as in the event happened, his appeal was allowed on its merits.

Neither Ms Pengeyo nor Mr Anwar received anything remotely resembling a hearing, or even notice of what was contemplated, from the Home Office. Each was presented out of the blue with a decision – as it turned out, a wholly unfounded one - that they had been guilty of obtaining leave by deception (a criminal offence: Immigration Act 1971, s. 24A) and that they were to leave forthwith the country where they were lawfully and at considerable expense pursuing their studies. I will return to the legal implications of this arbitrary and unjust conduct.

Mr Adjo, a Ghanaian national, is an overstayer who in October 2007 was served first with notice of liability to removal and then with a removal decision. His appeal against this decision on human rights and other grounds failed. In November 2008 he submitted a human rights application based on a relationship with a person settled in the United Kingdom. The Home Secretary turned it down, but IJ Callender Smith allowed his appeal under Article 8 on the ground that removal would be a disproportionate interference with his primary rights.

On reconsideration, all three appeals were dismissed, the first two (by SIJs Allen and Eshun, and by SIJ Warr) on the ground that the immigration judge had lacked jurisdiction, since these were appeals which could by law not be pursued while the appellant was still in the United Kingdom, the third (by SIJ Chalkley) on the ground that there was no right of appeal at all. The jurisdictional challenge was renewed when permission was sought to appeal to this court. Sullivan LJ and I on 14 Dec 2009 held - see [2009] EWCA Civ 1495 – that this court had jurisdiction to hear and determine the question of the AIT’s jurisdiction. Lord Neuberger MR and Sullivan LJ subsequently granted permission to appeal in the present cases. Pending her appeal, judicial review proceedings brought on Ms Pengeyo’s behalf in the Administrative Court, challenging the Home Secretary’s election to use a power carrying no right of appeal in-country when another less draconic power was available to her, have been stayed.

On the eve of the hearing of these appeals the Home Secretary withdrew the deception decisions made against Ms Pengeyo and Mr Anwar. Ms Pengeyo withdrew her appeal on agreed terms, but Mr Anwar continued with his for fear, as his counsel Mr Malik put it, that a similar decision might be substituted. It was only when Ms Chan, for the Home Secretary, undertook in open court not to do so that Mr Malik accepted that he had now achieved by consent as much as he could achieve by judgment. But at the court’s request both sides were heard on the question of jurisdiction.

The most material provisions are these:

It is relevant to these appeals to locate the point of time at which the Home Secretary’s objection on grounds of jurisdiction was taken.

In Ms Pengeyo’s case the Home Office presenting officer took the point before IJ Jamieson that the appeal, being against a decision to remove for deception, could be pursued only if she was outside the United Kingdom. The judge decided that he was able to proceed by virtue of the decision of SIJ Lane in CD (India) [2008] UKAIT 00055. At that stage the contrary decision of the High Court in Saleh [2008] EWHC 3196 Admin had been given but was unknown to the presenting officer, though the decision of this court in Lim and Siew [2007] EWCA Civ 773, [2008] INLR 60 presumably was known to her. At all events, these authorities satisfied the AIT on reconsideration that “the Tribunal had no jurisdiction to entertain an in-country appeal in this case as it is an out-of-country appeal”.

If her appeal to this court had failed, Ms Pengeyo would have reverted to her judicial review challenge, on grounds spelt out by HH Judge Thornton QC in his written grant of permission to apply, to the Home Secretary’s deliberate choice of a course which denied her an in-country appeal against a seriously damaging decision on which she had never had a hearing. It was moreover a decision which might well prevent her from re-entering the United Kingdom in the future and which could equally well have been a decision, for example to curtail leave to remain, that allowed an independent judicial tribunal to determine, without her leaving the country, whether she had been guilty of any deception at all.

Notwithstanding this, it appears clear that objection to the AIT’s entertaining the appeal was taken at the outset of the hearing before IJ Jamieson. The fact that it was inadequately backed up with authority is regrettable, but at least it had the effect of enabling the judge to proceed to determine, on the evidence, that Ms Pengeyo had been guilty of no deception at all. The question for us is whether the AIT on appeal was right to uphold the objection. The answer to that question, for reasons I will come to, depends importantly on whether and when the point was taken.

In Mr Anwar’s case, likewise, objection to pursuit of an appeal in-country was evidently taken by the Home Office at an early stage, since counsel’s skeleton argument on Mr Anwar’s behalf acknowledged and sought to deal with the point. IJ Bailey-King followed the course adopted in CD (India) of treating the decision as a curtailment of leave and hence as appealable in-country. He went on:

“As was pointed out in CD, it seems little short of astonishing that the respondent should seek to apply such legislation to a student with an exemplary past record who has fallen foul of a failing college.”

For reasons I will come to, this is in my view more than a passing comment. Nevertheless, in Mr Anwar’s case, as in Ms Pengeyo’s, the in-country point was clearly taken before the immigration judge. If it was sound, as the AIT on reconsideration thought it was, it ought to have succeeded. But had it done so, Mr Anwar’s Article 8 claim, which was certainly not without substance, would have had to be determined. Had it been, I have difficulty in seeing how the injustice of the decision that he had been guilty of deception – injustice both in the way it was reached and in the absence of any evidence to support it – could not have weighed decisively in the scales if and when the proportionality of removal came to be decided.

Mr Adjo’s was a pure Article 8 claim. Without it he had no basis for remaining here; with it, his removal was, as IJ Callender Smith held, unlawful. The refusal to grant leave to remain was, however, held on reconsideration to be not to be an immigration decision and hence not to be appealable. Although the reconsideration decision does not spell it out, it is to be inferred that SIJ Chalkley took the view that was therefore nothing to which to attach the human rights appeal, which he accordingly dismissed.

Mr Adjo, by his counsel Mr Ahmed, contests not the premise but the conclusion. The fact that a refusal to grant an overstayer leave to remain does not rank as an immigration decision does not mean that he may not have, independently, an Article 8 claim which the AIT has jurisdiction to entertain. For reasons touched on above, the point impacts contingently on Mr Anwar’s case too.

Was the AIT right in Ms Pengeyo’s and Mr Anwar’s cases to hold that the respective immigration judges had acted without jurisdiction? In my judgment they had jurisdiction to embark on the hearing notwithstanding that neither appellant had left the United Kingdom, but once the point was taken by the Home Office (and assuming it to be factually correct, since they might have been absent from the hearing) it operated in bar of the proceedings. Had the point not been taken in either case, the immigration judge would have been bound to proceed with the appeal.

The reason for this ostensibly subtle distinction is one which matters. It is the distinction between constitutive and adjudicative jurisdiction which I sought to draw in a dissenting judgment in Carter v Ahsan [2005] EWCA Civ 990, ICR 1817, §16-27, which secured approval on appeal [2007] UKHL 51, 1 AC 696. The constitutive jurisdiction of a tribunal is the power to embark upon trying specified kinds of issue. Whether a foreign national has obtained leave to enter or remain by deception is, by common consent, such an issue. Its adjudicative jurisdiction may then depend on a number of factors, such as whether the appeal has been brought within time or – as here - whether the appellant has left the United Kingdom.

This in turn may depend on several other things. First it must depend on whether the out-of-country rule applies at all, which is likely to be a mixed question of fact and law. IJ Callender-Smith concluded in Mr Anwar’s case that it did not apply. Secondly it may depend on whether the appellant has in fact left the country: he or she may be absent from the hearing but not, or allegedly not, from the United Kingdom. This will then be a triable issue. Until such issues have been decided it is impossible to say that the tribunal cannot hear the appeal.

One must not, of course, lose sight of the words of s.92(1) of the 2002 Act: “A person may not appeal … while he is in the United Kingdom unless his appeal is of a kind to which this section applies” – and the section does not apply to an appeal against a deception decision under s.10(b): see s. 82(2)(g). But it is not every such formula which bars the door to justice. To take only the best-known example, the Limitation Act 1980, s. 2, provides: “An action founded in tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.” It is trite law that unless the point is taken, this provision constitutes no bar. In consequence it can be waived by agreement or by unilateral decision. Another example can be found in requirements for leave to bring proceedings: see Adorian v Metropolitan Police Commissioner [2009] EWCA Civ 18.

Any apparently absolute bar to justice has to be scrutinised very carefully. The one contained in the 2002 Act is not of the kind which operates independently of the will of either party so as to bind the tribunal regardless. It offers a point which can be but need not be taken. In the present two cases, it was taken.

In the judicial review proceedings brought by Ms Pengeyo, albeit now likely to be abandoned, a challenge was made to the decision of the Home Secretary to use the deception route, enabling her effectively to stifle any appeal, rather than the variation route carrying a right of in-country appeal. Judge Thornton QC, rightly in my judgment, granted permission to argue this. Had it been sought, permission would also have properly been granted to argue that the election of the Home Office, having used the deception route, to take the out-of-country point in order to stifle an appeal was a serious abuse of power. Once it is established that the point is good only when taken, to take it in order to prevent the exposure of a shameful decision – the effective criminalising and enforced removal of an innocent person without either worthwhile evidence or the opportunity to answer – is without doubt justiciable by way of judicial review.

There is a further concern which it has not been necessary to address in argument. A decision taken in defiance of basic standards of fairness and morality may be impeached as a nullity. In Board of Education v Rice [1911] AC 179, Lord Loreburn famously said that a decision-making body “must act in good faith and listen fairly to both sides, for that is a duty lying upon everyone who decides anything”. In the CCSU case [1985] AC 374, 410, Lord Diplock included in the category of the irrational “a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”. Although we have not been called on to determine the question on the instant appeals, it is right to flag up a concern which all the members of the court share that, on the evidence before us, the powers of one of the great offices of state appear to have been so misused as to rob the successive administrative decisions of legal authority. We wish this to be brought to the Home Secretary’s attention.

Because, and only because, the Home Secretary has at the eleventh hour withdrawn an oppressive and unjust decision which ought never to have been made and has now undertaken not to retake it, Mr Malik accepts that there is no longer anything against which to appeal. For this reason alone his appeal will be formally dismissed.

Mr Adjo’s case differs from those of Ms Pengeyo and Mr Anwar because the question in his case is not whether he was entitled to appeal under section 82(1) while he was in the United Kingdom, but whether he had any right of appeal at all under section 82(1). Section 82(1) confers a right of appeal upon a person in respect of whom an “immigration decision”, as defined in sub-section (2), is made.

An immigration decision was made in respect of Mr Adjo in 2007, but his appeal against that decision failed. Although he made an Article 8 application for leave to remain in November 2008, and the Secretary of State refused it on 3^rd June 2009, his application was not accepted as a “fresh claim” for the purposes of rule 353 of the Immigration Rules

In these circumstances, Miss Chan submits that there was no immigration decision against which Mr Adjo could appeal under section 82(1), and in the absence of such a decision section 92(4)(a) did not apply to Mr Adjo’s human rights claim so as to give him such a right of appeal.

Mr Ahmed submitted that the 2007 removal directions were an immigration decision within section 82(2)(g). Those directions were still in force. Therefore, there was still an appealable immigration decision, Mr Adjo had made a human rights claim, and section 92(4)(a) applied. Alternatively, he submitted, relying on the decision of the Supreme Court in BA (Nigeria) [2010] 1 AC 444, that rule 353 had no role to play, and it mattered not that the Secretary of State had not treated Mr Adjo’s human rights claim as a fresh claim for the purposes of rule 353. There was a human rights claim, and the Secretary of State was required to make a decision on that claim against which there was a right of appeal subject only to certification under sections 94(2) or 96.

On 30^th July the judgment in R on the application of ZA (Nigeria) and SM (Congo) v Secretary of State for the Home Department [2010] EWCA Civ. 926 was handed down. That decision disposes of Mr Ahmed’s alternative submission. BA (Nigeria) is confined to those cases where there is an appealable immigration decision. Rejection of a person’s human rights claim is not, of itself, such a decision, although in very many cases it will result in such a decision being taken in respect of that person.

I do not accept the submission that there was an appealable immigration decision in respect of Mr Adjo at any time after the Asylum and Immigration Tribunal dismissed his appeal against the 2007 decision. Although the removal directions continue in force, their continued existence following the dismissal of Mr Adjo’s appeal does not give rise to any new immigration decision against which there is, or was in 2009, a right of appeal under section 82(1). Mr Adjo made a human rights claim in 2008, but section 92(4)(a) applies to such a claim only if there is an appeal against an immigration decision. It does not convert the refusal of his claim in 2009 into an immigration decision against which he could appeal to the Asylum and Immigration Tribunal.

Although for very different reasons, I would dismiss both surviving appeals.

I agree.

I also agree.