Chichvarkin & Anor, R (on the application of) v Secretary of State for the Home Department

This case concerns the lawfulness of the Secretary of State’s withdrawal of a decision refusing variation of leave to remain in the United Kingdom, in circumstances where the decision was the subject of an appeal to the tribunal under the “one-stop” procedure, the appellants had raised asylum and human rights grounds for the first time at the appellate stage and wanted those grounds to be determined by the tribunal, and the purpose of the withdrawal of the original decision was to enable the Secretary of State to reconsider that decision and to consider the new asylum and human rights claim as primary decision-maker. The appellants’ central contention is that the withdrawal of the original decision was inconsistent with the statutory scheme governing one-stop appeals. We were told that this is the lead case of a number of cases raising similar issues.

In a clear and closely reasoned judgment of the court, given by Kenneth Parker J, the Divisional Court dismissed the appellants’ challenge to the Secretary of State’s withdrawal decision: see [2010] EWHC 1858 (Admin). An appeal is now brought against the Divisional Court’s order, with permission granted by Pill LJ.

The appeal was listed before this court under the title EC (Russia). Subject to any further submissions by counsel, however, I see no reason for an order preventing identification of the appellants. No such order appears to have been made by the Divisional Court and the appellants’ full names are given in the judgment of that court. Moreover, it is evident from the submissions and evidence that the case has a very public background to it. For the sake of economy, however, I will refer to the appellants (who are husband and wife) as “Mr C” and “Mrs C” respectively.

The appellants’ evidence is that Mr C is a household name in Russia. In 1997 he and a business partner established Euroset, a mobile phone company which was eventually to become Russia’s biggest mobile phone retailer. In 2000 the company adopted a low price policy leading to a great increase in turnover and market share. Its rapid expansion and success placed Mr C within the top echelon among business people in Russia. Under pressure of criminal proceedings and against his will, in September/October 2008 Mr C sold Euroset. He claims that the criminal allegations are bogus and trumped up but that the criminal proceedings escalated because (1) he sold Euroset at the last minute to a party other than that to which he had come under sustained pressure to sell it, and (2) backed by substantial personal wealth, he turned to mainstream political opposition. The antagonism of the Russian establishment towards him is said to be exacerbated by his informal and flamboyant style.

Against that background, as they describe it, the appellants entered the United Kingdom as visitors, together with their two children, in December 2008. Not long afterwards, in January 2009, Mr C was finally charged in Russia, in his absence, with offences relating to kidnap and extortion and a Russian court issued a warrant for his arrest. In due course there was a request for his extradition to Russia from the United Kingdom.

In May 2009 Mrs C applied for her existing leave to be varied, to leave to remain as a Tier 1 (Investor) Migrant, under paragraph 245S of the Immigration Rules. Mr C and the children applied for leave to remain as her dependants. Mrs C did not have the entry clearance required by paragraph 245S, but she asked the Secretary of State to exercise a discretion to allow her in-country application, on the ground that the situation in Russia made it unreasonable for her to return to Russia for the purpose of making the application from there.

In Mr C’s accompanying statement and in a covering letter of 12 May 2009 from the appellants’ solicitors, it was stated expressly that Mr C was not at that time making an asylum claim or a human rights claim but he reserved the right to do so.

Mrs C’s application for variation of leave was considered by an official within the “Tier 1 Highly Skilled 7” section of the UK Border Agency, based in Sheffield. The application was refused on 21 August 2009, on the ground that Mrs C did not satisfy the requirement as to entry clearance and the Secretary of State was not minded to exercise discretion in her favour. The decision noted that Mr C had reserved the right to make an asylum application and stated that the UK Border Agency was prepared to consider such an application as and when it was made. The applications by Mr C and the children as dependants were similarly considered and refused. The decision notice sent to Mr C stated that his asylum application should be made in person at an Asylum Screening Unit (“ASU”).

The decision notices gave information as to rights of appeal and grounds of appeal, including grounds relating to asylum and human rights. Each notice also included a standard “One-Stop Warning – Statement of Additional Grounds” pursuant to s.120 of the Nationality, Immigration and Asylum Act 2002, stating inter alia that the relevant appellant must “now inform us of any reasons why you think you should be allowed to say in this country” and that “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”.

On 7 September 2009 Mr and Mrs C and the children appealed against the decisions. The grounds of appeal included the following:

“15(B) For the avoidance of doubt, all the appellants also appeal on the following grounds (applicable if and when it is finally determined that the in-country variation applications were lawfully and rightly rejected):

-

removal to Russia from the UK as a result of the decision would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellants’ human rights; and

-

such removal would breach the United Kingdom’s obligations under the Refugee Convention.”

No particulars were given of those grounds other than the following assertions:

“42.

Removal to the Russian Federation, would also breach the appellants’ human rights. The way in which such breaches arise are set out in the supporting evidence on which the appellants rely. As indicated above, SSHD says nothing at all in rebuttal of anything contained therein and is to be taken to have accepted the risks asserted ….

43.

Further, for similar factual reasons in respect of the human rights allegation (including the risk of abusive politically motivated prosecution), removal to Russia would breach the Refugee Convention.”

The statement in para 42 that the Secretary of State must be taken to have accepted the risks asserted was plainly misconceived and Mr Laurens Fransman QC, for the appellants, did not seek to defend it.

By letter of 2 October 2009, the appellants’ solicitors gave notice to the Secretary of State on behalf of Mr C “that he requires the protection of the United Kingdom and will make a formal asylum application in due course by attending the Asylum Screening Unit (ASU)”. The letter explained that extradition proceedings against Mr C had commenced in September 2009, triggering the need to apply for asylum or human rights protection. It repeated that the purpose of the letter was not to apply for asylum but to put the Secretary of State on notice, and that Mr C would pursue his formal application by attending the ASU as soon as could reasonably be arranged.

In the event, Mr C did not proceed with a formal asylum application as referred to in the letter of 2 October. At some point the appellants decided in the light of AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076, [2010] 2 All ER 21 (see, further, below) not to make a separate asylum application but to pursue the asylum matter solely as a ground of appeal in the existing proceedings before the tribunal.

In letters dated 7 January 2010 to the tribunal and the appellants’ solicitors the Home Office Presenting Officer, Mr Briant, acknowledged that once a “one-stop” notice had been issued the tribunal had to consider asylum and human rights issues if raised in the appeal, but pressed for a formal asylum claim to be made in the normal way at the ASU and referred to the possibility of the case being adjourned “for our normal process to be completed” if a claim was made before the date of the next hearing.

In a reply dated 11 January 2010 the appellants’ solicitors stated that the overriding concern was to proceed lawfully and as expeditiously as possible, that AS (Afghanistan) affirmed that protection issues were to be determined by the tribunal as part of the one-stop appeal process (a course which the appellants preferred because it put the tribunal in control of the timetable) and made clear that it was considered wrong and undesirable for Mr C now to attend the ASU and make an original asylum claim in the normal way.

In accordance with directions given in the one-stop appeal, the appellants served trial bundles on the Secretary of State towards the end of January. They consisted of six lever arch files and one ring binder, the vast majority of the material being new evidence. A skeleton argument served at the same time referred to the possibility that “a person (living in Russia, and therefore fearful of giving support) may provide evidence” and to the expectation that a specified expert would submit a supplementary report.

At a directions hearing on 1 February 2010 the Home Office Presenting Officer stated in error that the Special Casework Directorate of the UK Border Agency had agreed to consider the claim for asylum despite the fact that a formal application had not yet been made. He also requested a two-month adjournment prior to a further case management review. The tribunal listed a further directions hearing for 3 March on the basis that it was expected that progress would have been made in considering the asylum application and that the Home Office Presenting Officer would be able to report on the position and give a timeframe within which a decision would be made, but the case would be set down for hearing if no progress had been made. Counsel for the appellants stated that the full hearing would take five days if the Treasury Solicitor were not instructed but would otherwise take three weeks.

By letter dated 4 February 2010 the Asylum Casework Directorate wrote to the appellants’ solicitors, stating that in order for Mr C’s asylum application to be fully considered and an interview arranged they would need to see all the evidence that he wished to submit. An omission from that letter was made good in a letter of 10 February, informing the solicitors that Mr C would be required to attend the ASU in order to claim asylum. The solicitors responded on 18 February to the effect that the requirement to attend the ASU was in contradiction to the position adopted by the Home Office Presenting Officer at the hearing before the tribunal on 1 February and that Mr C would not be attending the ASU to initiate the normal asylum claim procedure.

By letter dated 26 February 2010 the Asylum Casework Directorate wrote in these terms to the appellants’ solicitors:

“The Secretary of State has decided to withdrawn [sic] the decision of 21 August 2009 to refuse leave to remain in the United Kingdom to your above clients for reconsideration.”

That decision is the subject of the application for judicial review.

In response to a written request for reasons and to a letter before claim, a letter dated 8 March 2010 gave the following reasons for the Secretary of State’s decision:

“The Secretary of State decided to withdraw his decision of 21^st August last refusing your client’s application for leave to remain as an investor in order to be able to consider the new matters raised by your clients in their grounds of appeal, specifically the claim that requiring them to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 and contrary to the UK’s obligations under the 1951 Refugee Convention.

It is the Secretary of State’s position that claims for leave to remain in the UK on that basis should be considered by his officials in the first instance, with a statutory right of appeal in the event that the application is refused. He does not accept that such first instance consideration by UK Border Agency officials in any way prejudices your clients, neither does he accept that his decision deprives clients of any appeal rights that may arise.”

The letter of 8 March also made clear that if Mr C wished to pursue an asylum application he was required to visit the ASU and he should also submit any evidence he wished to rely on for the purposes of such an application. It said that the Home Office Presenting Officer had been in error in suggesting at the hearing on 1 February that there was an extant asylum application and that the Asylum Casework Directorate was considering it. Once an application had been lodged, they would aim to complete their consideration and issue a fresh decision within 3 months.

Once notified of the Secretary of State’s withdrawal of the decision under appeal, on 19 March 2010 the tribunal sent the parties formal notice of withdrawal of the appeal. The notice was given pursuant to rule 17(2) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, which provides:

“An appeal shall be treated as withdrawn if the respondent notifies the Tribunal that the decision (or, where the appeal relates to more than one decision, all of the decisions) to which the appeal relates has been withdrawn.”

A letter dated 30 March 2010 from the Asylum Casework Directorate to the appellants’ solicitors, relating specifically to Mrs C’s application, reiterated that the original decision had been withdrawn and pointed to the Secretary of State’s discretion to act outside the Immigration Rules. It stated further:

“… at present the Secretary of State is in the process of reconsidering your client’s application and is taking into account the considerable representations you have submitted regarding your client’s husband’s situation in relation to the exercising discretion in reaching a decision ….”

Thereafter, on 12 April 2010, Mr C applied for asylum in person at the ASU. As explained below, the Secretary of State has not yet made a decision on that application, notwithstanding that the period of 3 months referred to in the letter of 8 March 2010 has been long exceeded.

The application for judicial review of the Secretary of State’s withdrawal decision of 26 February was commenced on 21 April 2010. In a witness statement made in the proceedings, Mr A Smith, Assistant Director in the UK Border Agency, explained that asylum claims and Tier 1 (Investor) Migrant applications are considered and decided by separate case working units and by staff within those units who have received specific relevant training. Mr Smith also gave examples of circumstances in which immigration decisions are withdrawn, triggering the operation of rule 17(2), and went on to state (at para 15):

“Deciding whether a decision needs to be withdrawn for reconsideration or can be considered in the context of the appeal (without the assistance from the specialist case work unit) will always be a highly fact sensitive exercise. However the introduction of a wholly different application at the point of an appeal against an unrelated application will very likely result in the withdrawal of the initial immigration decision. That said, whenever an immigration decision is withdrawn, this is done with the clear intention to re-take the decision in light of the up to date position or understanding, which in all cases may result in the applicant having their application or claim granted. If, after reconsideration, it is decided to maintain the earlier decision (for different or additional reasons), a new immigration decision will be made that will generate a fresh right of appeal to the Tribunal ….”

Whilst a new decision on a withdrawn case is sometimes taken by the Home Office Presenting Officer, Mr Smith said that where the case is complex, raises unique or broad-reaching issues, is high profile or contains a large amount of material, it is much more likely to be referred to a dedicated case working unit with expertise in dealing with such matters.

In relation to the withdrawal of the decisions relating to the appellants, Mr Smith made clear that the Secretary of State was reconsidering Mrs C’s Tier 1 (Investor) Migrant application, with the possibility of exercising discretion to allow the application to be made by Mrs C as a person with the immigration status only of a visitor, as well as considering the claim for international protection now made by Mr C. The relevant passage of the witness statement is set out in full at para 50 of the judgment of the Divisional Court.

The application for judicial review was dismissed by the Divisional Court on 21 July 2010. By the time of the hearing of the appeal in early December, there had still been no decision by the Secretary of State on Mr C’s asylum application. A letter of 1 December 2010 from the Treasury Solicitor explained that progress was being made in considering the application and that further clarification was awaited of the possible implications of the reported acquittal on 17 November 2010 of Euroset employees in the Russian criminal proceedings. We have heard nothing further.

As to the progress of the extradition proceedings, we were told that the initial extradition hearing has been adjourned to June 2011.

The appeal to this court is advanced on five grounds, which may be summarised as follows (I take them in the order in which they were developed in oral submissions on behalf of the appellants):

The statutory scheme relating to the one-stop procedure is conveniently summarised in the judgment of the Divisional Court:

“27.

Section 120 of the Act [the Nationality, Immigration and Asylum Act 2002] simplifies the so-called one-stop procedure previously contained in the Immigration and Asylum Act 1999 (sections 74-77). The section applies to every person who has made an application to enter or remain in the UK or in respect of whom any immigration decision within the meaning of section 82 of the Act (that is an appealable immigration decision) has been taken or may be taken. The SSHD or immigration officer may by notice in writing require that person to state any other reasons or grounds upon the basis of which he wishes, or believes he should be permitted, to enter or remain or not be removed from or required to leave the UK. Then, on an appeal under section 82(1) of the Act, the Tribunal shall treat the appeal as being against any and all appealable decisions against which the appellant has a right of appeal under that provision (see section 85(1), as amended by the Asylum and Immigration (Treatment of Claimants etc) Act 2004, section 26(7), Schedule 2, from 4 April 2005). The Tribunal shall deal, on the one appeal, with all permissible grounds (see section 84(1)) raised by the Appellant either initially as the basis of the original application or in his statement of additional grounds made in accordance with section 120. Such a statement can be made either before or after the appeal was commenced.

28.

The concept of an ‘additional ground’ has a wide ambit. It is open to an appellant to contend that an immigration decision is not in accordance with immigration rules relating to a category under those rules raised by the appellant in a one-stop notice but not in the original application that has been refused by the SSHD: AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076, [2010] 2 All ER 21. In the context of the present claim it is notable that in AS (Afghanistan) it was not controversial that asylum and human rights grounds can be raised in a one-stop notice (at [2], by Arden LJ, who dissented from the wider approach of the majority on the specific and different issue in the appeal).”

It is helpful to look in more detail at AS (Afghanistan), which has a central place in the argument before this court. The case concerned the tribunal’s jurisdiction to determine, in an appeal under the one-stop procedure, grounds of appeal contending that leave to remain should be granted on a basis that had not been the subject of any application to the Secretary of State or decision by the Secretary of State. The majority decision of Moore-Bick LJ and Sullivan LJ was that the tribunal had such a jurisdiction.

In the course of his judgment Moore-Bick LJ said that ss.85(2), 96(2) and 120 of the 2002 Act “are intended to form constituent parts of a coherent procedure designed to avoid a multiplicity of applications and appeals” (para 78) and that 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” (para 81). The whole tenor of the legislation “points to the conclusion that the purpose of s.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” (para 83).

He did not see great force in the Secretary of State’s objection that the effect of the appellants’ arguments was 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 …. Ultimately, however, the question must be whether the 2002 Act was intended to impose on the tribunal a responsibility of that kind in relation to matters raised in response to a notice under s.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 s.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” (para 84).

Sullivan LJ favoured the same interpretation, referred to in the judgment as the wider interpretation. He thought it clear that the underlying legislative policy was to prevent successive applications which were likely to prolong the period in which a person’s status was uncertain and undetermined, and he considered that that policy was better served by a one-stop procedure enabling all of an appellant’s other grounds for remaining in the United Kingdom to be considered by the tribunal at one appeal hearing (para 103). He continued:

“104.

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 s.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 … tend to be much more open-textured than the issues raised by appellants under the rules.

…

107.

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 ….”

Mr Fransman submitted that the Secretary of State’s decision of 26 February 2010 to withdraw the original decision refusing variation of leave was in flat contradiction and disregard of the statutory scheme as explained in AS (Afghanistan). The sole or primary reason for the decision was to prevent the tribunal from exercising the jurisdiction conferred on it by the statute, by causing the termination of the appeal (which the appellants had duly prepared for hearing) and leaving the subsequent decision-making procedure under the control of the Secretary of State rather than the tribunal. The only reason given in the letter of 8 March 2010 was to the effect that the Secretary of State should be the primary decision-maker, with a right of appeal to the tribunal if the application was refused; yet it was made clear in AS (Afghanistan) that the tribunal was to be the primary decision-maker in respect of additional grounds of appeal raised pursuant to the one-stop notice. Thus the withdrawal decision ran counter to, rather than promoting, the policy and objects of the legislation and was unlawful (see Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, 1030D; Laker Airways Ltd v Department of Trade [1977] 1 QB 643, 704B-E; R v Somerset County Council, ex p. Fewings [1995] 1 All ER 513, 525A-C; R v Braintree District Council, ex p Halls (2000) 32 HLR 770, 779). If the statutory procedure was considered to be defective, the remedy was not ignore or circumvent it but to amend it (see R v Liverpool County Council, ex p Baby Products Association [2000] LGR 171, 178g). As it was, the Secretary of State acted to “destroy” the appeal rather than allowing the issues to be dealt with in the context of the appeal as the legislation envisages should happen.

Mr Fransman accepted that it would be open to the Secretary of State to withdraw a decision for the purpose of genuine reconsideration with an open mind, but submitted for the reasons outlined above that withdrawal is unlawful if done for the purpose of avoiding the tribunal becoming the primary decision-maker. He said that the Divisional Court misunderstood or mischaracterised his argument when it attributed to him, at para 31 of the judgment of the court, the broad proposition that the Secretary of State was not at liberty to withdraw a decision unless the conduct of the appellant was “abusive”.

Be that as it may, it seems to me that the reasons given in paras 33-50 of the Divisional Court’s judgment for rejecting Mr Fransman’s submissions are for the most part equally applicable to the way in which he advanced the case before us; and subject to a few points considered below, I agree with those reasons. I will not take up space by incorporating the Divisional Court’s reasons in this judgment, but will confine myself to expressing briefly in my own way the key considerations as I see them.

AS (Afghanistan) decided that where the tribunal hears a one-stop appeal, it can and must determine grounds of appeal, including asylum and human rights grounds, even where they were not the subject of the original decision and were raised for the first time in the course of the appeal. That would have been the position if the appellants’ appeal to the tribunal had continued. The judgment in AS (Afghanistan) says nothing, however, about the circumstances in which the Secretary of State may withdraw the original decision and, by the operation of rule 17(2), bring the appeal to an end. The court was not concerned with, and did not refer to, the power to withdraw a decision.

It is not inconsistent with the statutory scheme or with the policy and purposes of the legislation for the Secretary of State to withdraw a decision because he considers it appropriate for the original application to be reconsidered or a new claim to be considered by him, as primary decision-maker, in the light of matters advanced in the appeal or of other developments. As the Divisional Court observed at paras 35-39, the Secretary of State is normally the primary decision-maker in respect of immigration matters; this was recognised in AS (Afghanistan) per Moore-Bick LJ at para 84; the Secretary of State’s primary role enables certain decisions to be taken more effectively and efficiently; and in many cases the appellate process is itself likely to benefit from a first instance decision by him. The fact that the tribunal has the capability to perform the role of primary decision-maker and may be required to perform that role if a one-stop appeal continues does not make it unlawful for the Secretary of State to take on his normal function of primary decision-maker by way of reconsideration of the original decision, or consideration of a new claim, in the light of matters raised in the appeal, or for him to withdraw the original decision for that purpose.

I do not accept that the Secretary of State withdrew the original decision in this case “for the purpose of avoiding the tribunal becoming the primary decision-maker”, as Mr Fransman put it. In the light of the reasons given in the letters of 8 and 30 March 2010 and in the witness statement of Mr Smith (which I consider to be consistent with the contents of the earlier letters), I think it clear that the decision to withdraw was made for the specific and positive purpose of reconsideration of Mrs C’s application and consideration of Mr C’s asylum claim. The issues and evidence raised in the course of the appeal proceedings were such that the Secretary of State thought it appropriate for them to be considered and decided in the first instance by officials with relevant expertise within the UK Border Agency, with a fresh right of appeal if an adverse decision was reached, rather than being dealt with solely in the context of the existing appeal. That was a rational assessment and was consistent with the statutory scheme. The letter of 8 March 2010 is not to be read in isolation as exhaustive of the reasons for withdrawal or as showing that the decision was based not on an assessment of what was appropriate in the circumstances of the particular case but on the view that the Secretary of State ought always to be the primary decision-maker.

It follows that, as the Divisional Court concluded at para 50, the power of withdrawal was exercised by the Secretary of State for a proper purpose.

On a point of detail, the Divisional Court referred at paras 41-42 to Sullivan LJ’s observation in AS (Afghanistan) that the Secretary of State could make “the necessary administrative and procedural arrangements” to enable him to make a decision or decisions on additional grounds raised in the one-stop appeal, and expressed the view that such arrangements could fairly and properly include the withdrawal of the decision under appeal with a view to reconsideration in the light of facts and matters advanced during the course of the appeal. I strongly doubt whether Sullivan LJ had withdrawal of the original decision in mind and, for my part, I would not rely on his observation as positive support for the conclusion reached in this case. Nonetheless I agree with the Divisional Court that there is nothing in AS (Afghanistan) to support the contention that withdrawal of the original decision in this case was unlawful.

I should also mention that Mr Fransman drew our attention to the July 2006 version of the Immigration Directorate Instructions, subsequently withdrawn, which stated in an introductory section on the one-stop procedure (chapter 12, section 1, paragraph 2) that “[if] additional grounds are raised after the decision has been taken, and the decision is to be maintained, a supplementary letter should be issued, giving further reasons”. In my view the document gives the appellants no assistance. It does not touch on the situation where a decision, rather than being maintained, is withdrawn for reconsideration.

Accordingly, I would reject the appellants’ case under ground 1.

Ground 2 raises a short point on s.3C of the 1971 Act, as amended. The section applies if a person who has limited leave to remain applies to the Secretary of State for variation of the leave. Its effect is to extend the existing leave pending a decision on that application and any appeal against that decision. Subs.(4) provides that “[a] person may not make an application for variation of his leave to … remain in the United Kingdom while that leave is extended by virtue of this section”. In my judgment in JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78, [2009] Imm AR 3, at para 36, I made observations to the effect that, where an application to vary has been made, s.3C(4) is effective to prevent any further variation application after a decision has been taken on the first application and pending any appeal against that decision. Mr Fransman submitted that this precluded any asylum or human rights claim by Mr C while the one-stop appeal against the refusal of the previous variation applications was pending. The only way in which such an issue could be raised was by way of additional grounds of appeal in the one-stop appeal. The Secretary of State’s insistence in January-February 2010 that Mr C make an asylum claim at the ASU, and the withdrawal of the original decision in lieu of him making such an application, were therefore premised on a requirement that Mr C pursue a course that was not open in law.

The Divisional Court dealt with this issue (which was raised before it as a new point at a late stage in the argument) at paras 51-52. It doubted whether JH (Zimbabwe) was clear authority that the making of an application for asylum or human rights protection was precluded in the circumstances postulated by Mr Fransman in his submissions, but it considered in any event that the point had no bearing on the legality of the challenged decision. The essence of its reasoning was that “[o]nce the asylum/human rights claim had been raised in the Tribunal, supported as it was by extensive new material, the SSHD had to consider what was the most efficient and effective way forward for dealing with that claim”.

I share the Divisional Court’s reservations about the effect of JH (Zimbabwe) but agree that no decision is needed on the point. Whether or not it was strictly open to Mr C to make an asylum or human rights claim while the one-stop appeal was pending, the fact is that he declined to make such a claim but chose instead to advance his asylum and human rights grounds in the context of the one-stop appeal, and the Secretary of State had to decide in those circumstances on the appropriate way in which to deal with the issues. The decision to withdraw the original decision meant that s.3C ceased to have any possible relevance for the making of an asylum or human rights claim. The decision was not itself premised on any particular view, right or wrong, about the effect of s.3C(4).

Mr Fransman took ground 4 next in his oral submissions. I have already summarised the argument, namely that at the time of the withdrawal decision the only application that had been made related to the variation of leave from visitor to “investor” status, an application which had been refused in principle because the appellants and their children did not possess the requisite entry clearance; so that there was no rational basis for withdrawal of the original decision in order to consider evidence relevant only to an asylum or human rights claim. In developing the argument, Mr Fransman emphasised the fact that at the time of the withdrawal there was no asylum or human rights claim to be considered, which is why the Secretary of State pressed Mr C to attend at the ASU to make such a claim.

I see no illogicality in the Secretary of State’s approach. First, the evidence adduced in the appeal was relevant not only to the asylum and human rights grounds raised by Mr C but also to the question whether Mrs C’s investor application should be allowed, as a matter of discretion, without requiring her to return to Russia to apply for entry clearance, and it is clear that the latter issue was to be the subject of genuine reconsideration in the light of the further evidence. Secondly, the asylum and human rights grounds had been raised by this stage as live issues and it was perfectly rational for the Secretary of State to take the view he did as to how they should be dealt with even though no formal claim had yet been made.

The argument on grounds 3 and 5 was advanced on the appellants’ behalf by Mr Seddon. Ground 3 is based on the evidence that Mr C is unable to deploy his full human rights case in the extradition proceedings because of the sensitivity of the case and the risk it would cause to those in Russia, given that the Russian Government is a party to the extradition proceedings and there is no means by which confidentiality can be maintained in that context. For that reason, once the need for asylum and human rights protection had arisen, the appellants sought to have them determined expeditiously in the context of the one-stop appeal to the tribunal, where the full case could be advanced in conditions of confidentiality.

This was mentioned in the case management reviews before the tribunal on 19 October 2009 and 1 February 2010. It was also mentioned repeatedly in correspondence. For example, in para 56 of the schedule accompanying a letter dated 11 January 2010 from the appellants’ solicitors to the tribunal, which was copied to the Home Office Presenting Officer, it was stated:

“Last but by no means least, this is a case in which justice delayed would be justice denied. There are parallel extradition proceedings afoot in which some of the relevant evidence that is to be adduced before the Tribunal, cannot be adduced before the extradition court because of the Art 2 and 3 ECHR risks that it would generate in respect, particularly, of persons in Russia. Plainly, if the asylum/human rights grounds are successful before the Tribunal, then such will obviate the need for any extradition hearing. However, if extradition proceeds, the appellants would be in a position of having to deploy a case that is less, in evidential terms, than that that is available for them to pursue before the Tribunal. The appellants would therefore resist any unnecessary delay in disposing of this matter before the Tribunal and argue that it is appropriate for the Tribunal to deal with the matter as expeditiously as possible.”

A letter of 9 February 2010 from the appellants’ solicitors to the Asylum Casework Directorate, responding to the Directorate’s letter of 4 February asking for all the evidence that Mr C wished to submit, emphasised the appellants’ concern to have the matter dealt with as expeditiously as possible.

Following the withdrawal decision of 26 February 2010, the appellants’ solicitors requested reasons for the decision and, in a letter before claim dated 5 March 2010, asserted that the decision “deprived the appellants, to their prejudice, of their one-stop appeal”.

The Secretary of State’s response, dated 8 March 2010, referred to his position that the claims should be considered by his officials in the first instance, with a statutory right of appeal, and stated that the Secretary of State “does not accept that such first instance consideration by UK Border Agency officials in any way prejudices your clients”. The penultimate paragraph stated: “[if] you consider that applying for asylum in person at the asylum Screening Unit will in some way disadvantage your clients, I should be grateful if you would explain why you consider this to be the case”. Mr Seddon submitted that the terms of the letter reveal a lack of understanding of the nature of the prejudice caused to the appellants by delay in the determination of the asylum and human rights issues.

In a further letter before claim, dated 15 March 2010, the appellants’ solicitors drew attention to the earlier material concerning the importance of avoiding delay, commenting inter alia (at paras 39-40) that “[t]he one-stop jurisdiction provided Mr EC with an opportunity to resolve matters before a substantive extradition hearing, but the SSHD’s unlawful decision of 26 February has prima facie deprived him of that opportunity” and that therefore “the unlawful act is severely prejudicial”.

The Secretary of State’s response dated 30 March 2010 did not deal with the issue of prejudice. Nor was any clarification given in the witness statement of Mr Smith.

In the light of that material Mr Seddon submitted that there was a clear failure to take into account or deal with a relevant consideration, namely the prejudice that delay would cause to the appellants, in reaching the withdrawal decision of 26 February.

I agree with that submission. Mr Eicke, for the Secretary of State, was not able to point to anything to show that the issue of prejudice was understood, let alone taken into account, by the Secretary of State in reaching the decision. In so far as the Divisional Court considered the issue of prejudice, at paras 43-44 of its judgment, it did not address the point as put forward to us by Mr Seddon and its judgment does not assist the Secretary of State on the point.

I do not, however, accept that this error on the part of the Secretary of State was material or that it justifies the grant of any relief.

First, time has moved on and in the situation now prevailing there are strong arguments for allowing the Secretary of State to reach a fresh decision on the Tier 1 (Investor) Migrant application and a decision on Mr C’s asylum and human rights claims rather than restoring the one-stop appeal before the tribunal. Whether or not the delay to date is justified, it ought to be possible to make those decisions very soon: a failure to do so will render the Secretary of State seriously vulnerable to judicial review. If the decisions (in particular, the asylum and human rights decision) are favourable to the appellants, all other issues should fall away. If they are unfavourable, the appellants will have a right of appeal to the tribunal; and, with the co-operation of the tribunal, an appeal should be capable of being heard as quickly by that route as by the restoration of the previous one-stop appeal (I leave aside the additional complication that it would be open to the Secretary of State to consider the issue of withdrawal afresh if the previous withdrawal decision were quashed). Moreover the tribunal would in my view be greatly assisted by a first instance decision by the Secretary of State, and it is likely that such a decision would help to focus and reduce the issues and so to minimise the time required for the hearing of an appeal.

Secondly, the fact that the initial extradition hearing has now been adjourned to June 2011 means that the withdrawal decision has not given rise to any prejudice to date; and the potential for future difficulty can be avoided if the Secretary of State and, if necessary, the tribunal act hereafter with appropriate expedition.

Thirdly, I am not satisfied that the appellants’ concern about prejudice was well founded in any event. Whilst we were told by Mr Fransman that there was no prospect of securing an adjournment of the extradition proceedings for the purpose of enabling a decision to be taken by the Secretary of State or, on appeal, by the tribunal on the asylum and human rights claim, I am very doubtful whether that is correct:

Accordingly, although the Secretary of State was in error in failing to take account of the appellants’ case on prejudice, it was not an error of any consequence and the decision should in my view be allowed to stand despite it.

The appellants’ final ground is that the withdrawal decision was taken in order to invoke rule 17(2) and to cause the tribunal to treat the appeal as withdrawn, but rule 17(2) is itself ultra vires and the withdrawal decision was vitiated by that invalidity. Although this ground was maintained by Mr Seddon in his oral submissions, it faces formidable obstacles. The Divisional Court dealt with it in this way:

“53.

As a final matter, the Claimants challenged the validity of Rule 17(2). However, that challenge rested upon the contention that ‘the decision was taken pursuant to a secondary provision (Rule 17) that is ultra vires the enabling provisions of the 2002 Act’. At the hearing Mr Fransman accepted that the power to withdraw was not derived from Rule 17: the power to withdraw arises as a matter of general public law, for the decision maker has the implied power, subject to general principles of public law, to withdraw any decision taken under statute or prerogative, unless such power is excluded. The basis of this ground of challenge has, therefore, fallen away.

54.

In any event, what is challenged in these proceedings is the decision of the SSHD, not the decision of the Tribunal. If Rule 17(2) were invalid, the decision of the Tribunal giving effect to it could not stand. However, the Tribunal is not a party to these proceedings, that decision is not challenged, and the issue simply does not arise.

55.

For the avoidance of doubt we should add that we were not impressed by the substantive arguments regarding the validity of Rule 17(2). Under section 106 of the Act (before amendment), the Lord Chancellor had the widest power to frame procedural rules for the Tribunal. Rule 17(2) does no more than reflect, within an appeal system, the current and sensible practice in respect of withdrawal of decisions in the context of judicial review, as set out earlier in this judgment. The ‘withdrawal’ of an appeal under Rule 17(2) is distinct from the deemed ‘abandonment’ of an appeal which follows the grant of leave to enter or remain in the UK pursuant to section 104(4A) of the Act and Rule 18 of the Procedure Rules.”

I agree with the Divisional Court’s reasoning. The appellants’ case was advanced before us in a way that avoided the Divisional Court’s para 53 but was unable to avoid or to answer paras 54-55. In my judgment, it is not open to the appellants to challenge the validity of rule 17(2) in these proceedings, in which the tribunal’s decision giving effect to the rule is not the subject of challenge and to which the tribunal is not a party. In any event the challenge to rule 17(2) lacks substantive merit. Ground 5 strikes me as altogether hopeless.

For the reasons given, I would dismiss the appeal.

I agree.

I also agree.