LB (Jamaica) v Secretary of State for the Home Department

This is an appeal on behalf of Mr Brown which raises a question of the jurisdiction of this court. It is only necessary to deal with such of the factual background as is necessary to explain how the issue arises.

The appellant originally arrived as a Jamaican national in the United Kingdom back in July 2000 and for various reasons remained here, he contended lawfully, for 10 years. The length of his lawful residence here, and the key question whether he had been lawfully resident for 10 years, was the subject matter of dispute with the Secretary of State for the Home Department and led to a refusal of an extension of student leave and a failure of two appeals, one to the First-tier Tribunal, and secondly to the Upper Tribunal. A further appeal to this court raised the question whether leave, pursuant to section 3C of the Immigration Act 1971, counted as lawful residence for the purposes of calculating the length of this applicant’s lawful residence within the United Kingdom.

Once permission to argue these points had been given by Sedley LJ, the Secretary of State for the Home Department reviewed the matter and came to the conclusion that she should grant the appellant indefinite leave to remain on the basis of 10 years’ lawful residence. Accordingly, on 7 April 2011, she wrote confirming grant of leave with effect from 5 April 2011, but – and here comes the sting in the tail – informed the applicant that by virtue of section 104 of the Nationality Immigration Asylum Act 2002 the appellant’s appeal was to be regarded as abandoned from the moment that leave was granted. Little did she know that representing this appellant was not one who would be prepared to lie down on the basis of the success of his particular client, but one who had the interests of those who practised in the field and others like him very much at heart, namely Mr Zane Malik. He contends that this court does have jurisdiction and, notwithstanding the grant of leave, the appeal is not to be regarded as abandoned. If he is correct, he then wishes this court to pronounce upon the issue which led permission to be given to this court and which he contends is of significant and particular importance to those in a similar position to Mr Brown, the appellant. None of that is of concern to this court unless the court has jurisdiction. This is not a case where it is appropriate to consider the propriety of deciding the arguments whether section 3C of the 1971 Act counts towards the lawfulness of residence on the assumption that this court has jurisdiction. No question of discretion as to whether to decide an academic appeal arises, absent jurisdiction.

In order to determine the point it is necessary to consider the statutory scheme. The right of appeal against an immigration decision as defined in section 82 of the Nationality Immigration and Asylum Act 2002 is conferred by section 82(1). The right of appeal is conferred on a person in respect of whom an immigration decision is made to the First-Tier Tribunal by reference to the definition section, section 81. The immigration decision in the instant case was a decision to refuse Mr Brown’s leave to remain in the UK pursuant to section 82(2).

The question of whether the appeal was abandoned, as the Secretary of State contends, falls to be determined by analysis of section 104. Section 104, under the rubric of Pending Appeal, reads:

“(1)

an appeal under section 82(1) is “pending” during the period beginning when it is instituted and ending when it is finally determined, withdrawn or abandoned...

(2)

an appeal under section 82(1) is not finally determined for the purposes of subsection (1)(b) while -- an application for permission as to appeal under section 11 or section 13 the Tribunal Courts and Enforcement Act 2007 could be made or is awaiting determination.

Permission to appeal under either of those sections has been granted and the appeal is awaiting determination, or an appeal has been remitted under section 12 or 14 of that Act and is awaiting determination.”

It is relevant to observe that section 104(2) was substituted for its predecessor section 104(2) by the Transfer of Function of the Asylum and Immigration Tribunal Order 2010/21 (Schedule 1 paragraph 26(a) on 15 February 2010). The previous provisions of section 104(2) referred to the previous statutory regime for tribunals and referred to an appeal to the Court of Appeal by virtue of section 103C; an appeal under section 82(1) was under the previous statutory regime under the 2002 Act not finally determined whilst an appeal to the Court of Appeal under section 103C was awaiting the determination.

Section 104 continues by identifying a number of circumstances in which an appeal under section 82(1) would be deemed to be abandoned. Subsection (4) reads:

“An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant leaves the United Kingdom.”

Subsection (4A) reads:

“An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom (subject to subsections (4B) and (4C)). (neither of which apply in the instant appeal).”

It is section 104(4A), so the Secretary of State submits, which deprives this court of jurisdiction.

This appeal, as to the question of jurisdiction, turns on the meaning of the words “an appeal under section 82(1)”. Mr Zane Malik submits that an appeal under section 82(1) is not the same as an appeal to this court. Whilst an appeal under section 82(1) to a First-Tier Tribunal is clearly to be treated as abandoned by virtue of the grant to Mr Brown of leave to remain, non sequitur that the appeal to this court, permission having been given, is to be treated as abandoned. That argument turns on the statutory source of an appeal to this court which is contained not within the Nationality Immigration and Asylum Act 2002 but the Tribunals, Court and Enforcement Act 2007.

The source of the right to appeal to this court is contained within section 13 of the 2007 Act which reads:

“(1)

For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-Tier Tribunal other than an excluded decision.

(2)Any party to a case has a right of appeal, subject to subsection (8).”

The reference to a decision of the Upper Tribunal refers back to the statutory right of appeal to an Upper Tribunal conferred by section 11 of the 2007 Act. Thus Mr Zane Malik submits that the statutory right of appeal to this court remains untrammeled by any deeming provision which refers merely to an appeal under section 82(1). I disagree. In my view, the reference in subsection (4A) to an appeal under section 82(1) has to be read with the identification of the period during which an appeal under section 82(1) remains pending as identified in (1) and (2) of section 104. The appeal remains alive throughout the period until it is finally determined or abandoned. Subsection (2) identifies that period during which it is not finally determined by specific reference to the period pending final determination of an appeal to the Court of Appeal: see section 104(2)(b).

In those circumstances it seems to me impossible to confine the construction of what is meant by an appeal under section 82(1) to an appeal to the First Tier Tribunal without incorporating within it all those circumstances identified in the earlier part of the same section, namely an application for permission to the Court of Appeal that is awaiting determination or permission to appeal and the period up until final determination of that appeal.

There was in this case a live and pending appeal under section 82(1) and that must be deemed as abandoned once leave had been given. That must carry within that process of abandonment the abandonment of an appeal under section 13 of the Tribunals, Courts and Enforcement Act 2007 which maintains the life of that appeal under section 82(1).

Mr Malik, however, draws attention to the statutory predecessors of section 104 and section 82 which have formed the subject matter of a previous decision of this court binding upon us if the statutory regime has remained the same. He contends that the change in wording and structure has no actual effect on the reasoning of that previous decision.

In order to make sense of that previous decision it is, I believe, necessary briefly to refer to the previous relevant statutory regime. That regime was contained within section 58 under the rubric appeals of the Immigration and Asylum Act 1999. Section 58(1) reads:

“The right of appeal given by a particular provision of this part is to be read with any other provision of this part which restricts or otherwise affects that right.”

The relevant part was Part 4. Section 58(4) read:

“Part 3 of Schedule VI makes provision (a) with respect to the determination of appeals under this part [Part 4] and (b) for further appeals.”

Part 3 of Schedule VI contained provisions relating to determination of appeals to the Court of Appeal (see paragraph 23 (3)(b)). Section 58(5) read:

“For the purposes of the Immigration Acts an appeal under this Part [part 4] is to be treated as pending during the period beginning when notice of appeal is given and ending when the appeal is finally determined, withdrawn or abandoned.

(6)

An appeal is not to be treated as finally determined while a further appeal may be brought.

(7)

If such a further appeal is brought, the original appeal is not to be treated as finally determined until the further appeal is determined, withdrawn or abandoned.”

There then followed provisions in which section 58 deemed a pending appeal under Part 4 to be abandoned. Subsection (8) read:

“A pending appeal under this Part is to be treated as abandoned if the appellant leaves the United Kingdom.

(9)

A pending appeal under any provision of this Part other than section 69(3) is to be treated as abandoned if the appellant is granted leave to enter or remains in the United Kingdom.”

An appellant who had temporarily left the United Kingdom was said by the Secretary of State to have abandoned his appeal under the old regime in Sherazi v SSHD [2003] EWCA Civ 1562.

In his judgment, with which the other two members of this court agreed, Sedley LJ drew attention to the contrast in section 58 Part 4 of the Immigration Act 1999 between an appeal under section 58 and further appeals. He said:

“Mr Kovats [for the Secretary of State] accepts that the legislation on the face of it distinguishes between appeals under the part of the Act, Part IV, which contains s.58 and 'further appeals'. Ms Webber draws our attention to the origin of the concept of a 'further appeal' - namely to this court or the Court of Session - in s.9(1) of the Asylum and Immigration Appeals Act 1993. Nothing in the legislation says in terms that deemed abandonment touches such appeals. The Court of Appeal has always had its own system and its own principles for dealing with appeals which are either abandoned or become moot. It is in my judgment contrary to principle, except in obedience to an unequivocal statutory requirement, to introduce a rule which arbitrarily truncates access to justice in this court [my emphasis].

Sedley LJ went on to advance further reasons of principle why section 58 could not take away the jurisdiction of this court which has, as Mr Malik underlined, an important function in identifying correct legal principles, both in relation to statutory construction and otherwise in this important field of immigration.

In my judgment, the problem is that the previous conclusion of this court was not dealing with the same statutory regime. Section 104 of the 2002 Act provides an unequivocal statutory requirement that an appeal under section 82(1) incorporates within its concept any appeal arising from a decision which led to the original appeal under section 82(1) and, in particular, an appeal to the Court of Appeal founded upon the original appeal to the First-Tier Tribunal under section 82(1). No other sensible explanation can be given for the specific reference to section 104(2)(a). Mr Malik says the same reasoning might have been applied to section 58 in the Sherazi case. In my view, it could not whilst there remained that important contrast between further appeals and a pending appeal and the specific reference in section 58(9) to a “pending appeal under any provision of this part”, words which, in the view of the previous Court of Appeal, precluded any application of the deemed abandonment provisions to any appeal to the Court of Appeal.

For those reasons, I take the view that Sherazi is not authority in favour of the submissions advanced by Mr Malik but, on the contrary, the contrast underlines and highlights the effect of section 104(2) in providing an unequivocal statutory justification for the abandonment of the appeal to this court. It has, in short, the effect of depriving this court specifically of jurisdiction in this appeal.