E1/(OS Russia) v Secretary of State for the Home Department

This is an appeal against the Order dated 31^st March 2011 of Mitting J dismissing the Appellant’s claim for judicial review of the notice of the Respondent’s decision to cancel his Indefinite Leave to Remain (ILR) in the United Kingdom, dated 28^th May 2010.

The Appellant is a Russian national who was born in Chechnya on 17^th April 1966. On 30^th July 2002 he was granted asylum and ILR. His wife and their four children were granted ILR on 31^st January 2003. They have since had two more children, both born in the UK. In April 2007 the Appellant, his wife and children applied for naturalisation. On 30^th October 2009 his wife and four eldest children, but not the Appellant, were granted British Citizenship.

On 26^th February 2003, a ten year Refugee Convention travel document, endorsed for all countries except Russia, was issued to the Appellant. In 2008 and 2009 the Appellant travelled extensively outside the UK. He last left the UK in November 2009.

On 11^th May 2010 the Respondent personally directed that the Appellant should be excluded from the UK on the grounds that his presence here was not conducive to the public good based on the threat that he was assessed to present to national security. On the basis of that decision the Respondent also decided that the Appellant was no longer recognised as a refugee, and his ILR was cancelled.

The Appellant was given notice of these decisions by a letter dated 28^th May 2010 (“the Notice”). The Notice told the Appellant that:

“There is no statutory right of appeal against the Secretary of State’s decision to exclude you from the United Kingdom (the decision is reviewed every 3 to 5 years). However, there is an out-of-country right of appeal against the decision to cancel your indefinite leave to remain.

Your are entitled to appeal against the decision to cancel your leave to remain under the Special Immigration Appeals Commission Act 1997. This is because the decision to cancel your leave to remain has been certified under section 97(3) of the 2002 Act as a decision made in accordance with a direction of the Secretary of State and which was given wholly or partly on the following grounds:

(a)

in the interest of national security, or

(b)

in the interests of the relationship between the United Kingdom and another country.

You may only appeal this decision from outside the United Kingdom. For the purposes of the appeal the cancellation of your leave will be treated as a decision to vary your leave to remain in the United Kingdom, which when the variation tookeffect, meant that you had no leave to remain. I enclose a notice of appeal to the Special Immigration Appeals Commission (SIAC) and guidance notes for completion of the appeal form.” (emphasis added)

The Notice set out the grounds on which the Appellant was entitled to appeal, told him that he had 28 days from receipt of the letter to complete and return the enclosed Notice of Appeal to the Special Immigration Appeals Commission (“SIAC”), and concluded:

“The United Nations Convention travel document, number C00104277, issued to your on 25^th February 2003, is no longer valid for travel. You should not seek to travel to the United Kingdom as you will be refused admission.” (emphasis added)

The Notice was served on 1^st June 2010. The Appellant did not return to the UK. A Notice of Appeal was filed with SIAC on 21^st June 2010. At a directions hearing on 1^st July 2010 the hearing of his appeal was fixed for the week commencing 28^th March 2011. On the 1^st September 2010 the Respondent’s First Open Statement was served. It merely said that the Security Services assessed that the Appellant:

“should be excluded from the UK as his presence in the UK would be non-conducive to the public good for reasons of national security.”

On 3^rd November 2010 the Appellant’s witness statement, which was largely a repetition of his asylum claim in 2002, was filed with SIAC. On 21^st January 2011, the Respondent’s Second Open Statement was served. This statement revealed, for the first time, the substance of the case against the Appellant: that he had worked as an advisor to the President of Chechnya, Ramzan Kadyrov, and had “played a significant role in the assassination of [a Chechnyan exile called] Israilov in Austria on behalf of Kadyrov.”

Following a Rule 38 hearing on 1^st March 2011, an Amended Second Open Statement was served by the Respondent on 10^th March 2011. This revealed that it was the Security Service’s assessment that Kadyrov, who had been responsible for the assassination of a number of his opponents, had a black list of individuals, some of whom he wished to have assassinated, and that the exiled Prime Minister of Chechnya, Ahkmed Zakayev, a refugee living in the UK, was believed to be on the list. The Security Service assessed that Kadyrov was likely to seek to target Zakayev, and that should he seek to do so in the UK “it would be likely to be facilitated through [the Appellant] who would be well placed to provide valuable information.” Therefore the Appellant posed a serious threat to Zakayev’s life.

On 17^th March 2011 the Appellant instructed new solicitors, Wilson Solicitors LLP (“Wilsons”). On the same day Wilsons requested an adjournment which was refused by Mitting J on that day, on paper. A renewed oral application for an adjournment made on 23^rd March 2011 was refused.

On 25^th March 2011 this Court gave judgment in Secretary of State for the Home Department v MK (Tunisia) [2011] EWCA Civ 333 (“MK”). The Court upheld the judgment of Collins J dated 26^th August 2010, reported at [2010] EWHC 2363 (Admin). It is unnecessary to set out the details of MK because it is common ground in this appeal, and was common ground before Mitting J, that the effect of that decision is that a person in the position of this Appellant, who was abroad when given notice of the Respondent’s decision to cancel his ILR, has his leave to enter the UK extended by section 3D of the Immigration Act 1971 for the period during which he could appeal while in the UK. In this case that period was a period of 10 days from service of the Notice: see rule 8(1)(b)(i) of The Special Immigration AppealsCommission (Procedure) Rules 2003 (“the 2003 Rules”) (paragraph 18 below). During that period he may return to the UK and make an in-country appeal: see paragraphs 26-29 of the judgment of Pill LJ. If he makes an in-country appeal within the period of 10 days, then his leave to remain in the UK is extended until his appeal has been determined. If a person in the Appellant’s position chooses to remain outside the UK, he has 28 days in which to appeal, but his appeal must then be pursued from outside the UK.

On 29^th March 2011 Wilsons wrote to SIAC contending that MK applied to the Appellant, that he was “under a significant disadvantage by being out of the country in presenting his SIAC appeal”, and renewing their application for an adjournment. The hearing of the Appellant’s appeal before SIAC began on the following day, 30^th March 2011. At the outset of the hearing Mr. Grieves submitted that MK applied to the Appellant, that he was entitled to enter the UK to conduct his appeal, and that the appeal should be adjourned to enable the necessary arrangements to be made. He told Mitting J that grounds for Judicial Review would be lodged on the following day, 31^st March 2011.

Mitting J decided, with the agreement of all parties, to sit as a judge in the Administrative Court to hear the application for permission to apply for Judicial Review at 2 pm on 31^st March 2011. Mr. Underwood QC, the Special Advocate, made an application to postpone cross-examination of the Security Service witness until there had been a ruling on the MK issue. That application was refused and the Special Advocate’s cross-examination of the Security Service witness began on the afternoon of 30^th March 2011.

On the morning of Thursday 31^st March a Claim Form seeking the quashing of (inter alia) the decision dated 25^th May 2010, which was described in Section 3 of the Claim Form as “Notice of cancellation of indefinite leave to remain”, was filed at the Administrative Court. On that day the hearing of the application for permission to apply for Judicial Review took place before Mitting J who granted permission to apply for Judicial Review but dismissed the claim (see below). The hearing before SIAC continued on 5^th April 2011. SIAC dismissed the Appellant’s appeal in an Open Judgment dated 20^th April 2011.

Section 105(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) gives the Respondent power to make regulations “requiring a person to be given written notice where an immigration decision is taken in respect of him.” Subsection 105(2) provides that:

“(2)

The regulations may, in particular, provide that a notice under subsection (1) of a decision against which the person is entitled to appeal under section 82(1) must state –

(a)

that there is a right of appeal under that section, and

(b)

how and when that right may be exercised.”

Regulation 4 of The Immigration (Notices) Regulations 2003 (“the Regulations”) requires the decision maker to give written notice of an appealable immigration decision. There is no dispute that the cancellation of the Appellant’s ILR was such a decision. Regulation 5 sets out what must be contained in a notice under regulation 4:

“(3)

Subject to paragraph (6), the notice given under regulation 4 shall also include, or be accompanied by, a statement which advises the person of –

(a)

his right of appeal and the statutory provision on which his right of appeal is based;

(b)

whether or not such an appeal may be brought while in the United Kingdom;

(c)

the grounds on which such an appeal may be brought; and

(d)

the facilities available for advice and assistance in connection with such an appeal.

(4)

Subject to paragraph (6), the notice given under regulation 4 shall be accompanied by a notice of appeal which indicates the time limit for bringing the appeal, the address to which it should be sent or may be taken by hand and a fax number for service by fax.” (emphasis added)

Paragraph (6) of regulation 5 provides that a notice need not comply with, inter alia, paragraph (3) where a right of appeal may only be exercised on certain grounds. Paragraph (7) then provides that if certain claims (eg that removal would be in breach of the Refugee Convention) are made, the notice of decision must be re-served; paragraph (6) will not apply to the re-served notice; and the time-limit for an appeal will begin to run as from the date of re-service.

Rule 8 of the 2003 Rules prescribes the time limits for an appeal to SIAC. If an appellant is not in detention, notice of appeal must be given:

“(i)

if the appellant is in the United Kingdom, not later than 10 days, or

(ii)

if the appellant is outside the United Kingdom, not later than 28 days, after the appellant is served with notice of the decision against which he wishes to appeal.”

In this appeal, we are concerned with the requirement that the recipient of a notice given under regulation 4 must be advised whether or not his appeal may be brought in the UK. Parliament regarded this issue – whether or not an appeal may be brought in the UK – as sufficiently important to prescribe in primary legislation the kinds of appeal which may be brought while the appellant is in the UK. Section 92(1) of the 2002 Act provides that “A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.” (Commonly referred to as “In-country appeals”). Even if the appeal is one of those to which section 92 applies, eg. because the appellant has made an asylum or human rights claim (see s. 92(4)), section 94 enables the Secretary of State to certify asylum and human rights claims as clearly unfounded, thereby preventing the making of an in-country appeal in such cases.

In his judgment, [2011] EWHC 1047 (Admin), Mitting J, having referred to MK, section 105 of the 2002 Act and regulation 5 of the Regulations, accepted Mr. Grieves’ submission that the Notice did not entirely fulfil the requirements of regulation 5(3):

“It did tell [the Appellant] that he had a right of appeal, it did self evidently notify the decision against which a right of appeal lay, it correctly identified [SIAC] as the body to which an appeal should lie, but it was erroneous in stating that an appeal could only be brought while out of the United Kingdom.”

Mitting J referred to the observations of Lord Hailsham at pp 189-190 of London and Clydeside Estates Limited v Aberdeen District Council [1980] IWLR 182 (“Clydeside”), and to the observation of Lord Steyn in paragraph 15 of his opinion in R v Soneji [2006] 1 AC 340, [2005] UKHL 49 (“Soneji”), that Lord Hailsham’s approach in Clydeside had:

“…led to an adoption of a more flexible approach of focusing intensely on the consequences on non-compliance, and posing the question, taking into account those consequences, whether Parliament intended the outcome to be total invalidity.”

The critical part of Mitting J’s reasoning is contained in paragraph 20 of his judgment:

“20.

Applying that test to this decision letter, I am satisfied that Parliament would not have intended that it should be treated as totally invalid or ineffective. It notified the claimant of the decisions which the Secretary of State had taken, correctly stated that two of them could not be the subject of a statutory appeal, correctly stated that one of them, the immigration decision, could be the subject of a statutory appeal, correctly identified the court, SIAC, to which the appeal lay and correctly stated that, if the appeal were to be brought out-of-country, the appellant would have 28 days in which to make his appeal. The error, the assertion that he had no in-country right of appeal, did not deprive him entirely, or even to any significant extent, of an effective right of appeal. Consequently, and for those reasons, I am satisfied that the decision letter gave effective notice of the Secretary of State’s decisions and triggered a right of appeal which the claimant exercised.”

Mitting J then dealt with Mr. Grieves’ second submission that the Respondent should be required to withdraw the defective decision letter and re-issue a fresh decision triggering a fresh right of appeal. Although he acknowledged that the appellant would suffer a disadvantage if he was unable to be present while the appeal was heard, he said that this disadvantage should not be exaggerated (paragraph 24), and concluded that leaving aside the difficulties created by the last minute preparations of his case, the Appellant would “suffer no overwhelming disadvantage, indeed …. no really significant disadvantage if he were to give evidence and instructions by a television link” (paragraph 26).

On behalf of the Respondent, Mr. Glasson relied on the statement of principle by Jackson LJ in paragraph 37 of CM (Jamaica) v Secretary of State for the Home department [2010] EWCA Civ 160 (“CM”):

“Whenever a new right or remedy is established in the Court of Appeal, other litigants who might have taken advantage of that right or remedy, if only they had known about it earlier, will be disappointed. However, that is not normally a good reason to go back to earlier cases and unscramble decisions made by the parties on the basis of the law as previously understood.”

Mitting J accepted Mr. Grieves’ submission that the Appellant in this case was at the beginning and not at the end of a lengthy process of litigation, but said that the principle remained the same:

“Where a common understanding of a complex area of law proves subsequently to be misplaced as a result of a decision of the Court of Appeal or the Supreme Court, then in other cases which have either been concluded or started and are being heard, like this one, in which different actions might have been taken had the misconception being realised earlier, the principle is that there is normally no good reason to unscramble the proceedings.”

Mitting J said that there was every reason not to unscramble these proceedings for the reasons he had given when refusing to grant an adjournment, and concluded that “this decision letter was not only legally effective but the Secretary of State is under no obligation to withdraw it and reissue it.” (paragraph 31).

Both Mr. Southey QC on behalf of the Appellant and Mr. Swift QC on behalf of the Respondent were at pains to emphasise the distinction between the immigration decision against which there is a right of appeal – in the present case the cancellation of the Appellant’s ILR – and the written notice of that decision that must be given under the Regulations. They were right to do so, see the discussion by Richards LJ at paragraphs 21 and 22 of JN (Cameroon) [2009] EWCA Civ 307. It is common ground that the time limit for an appeal runs, not from the decision, but from service of notice of the decision.

Mr. Southey accepted that the defects in the Notice did not mean that the Respondent’s decision to cancel the Appellant’s ILR consequent upon her decision to exclude him from the UK was invalid. He submitted that the time for appealing against that decision ran, not from the decision, but from the date of service of a valid notice of the decision under the Regulations, and the Notice was not a valid notice under the Regulations because it wrongly told the Appellant, not merely that he could only appeal from outside the UK, but also that he had no leave to remain and would be refused admission if he sought to travel to the UK. Because the Appellant was told that he had an out-of-country right of appeal he was told that the time-limit for appealing was 28 days from receipt of the letter, rather than the 10 day time limit for returning to the UK and making an in-country appeal.

Mr. Southey submitted that the right to an in-country, as opposed to an out-of-country, appeal had been recognised by this Court as a “valuable right” in paragraph 28(d) of MK. See also paragraph 35 in which Pill LJ agreed with the approach of Collins J who had said in paragraph 17 of his judgment, that:

“17.

It is, I think, clear, and indeed common sense, so indicates, that there are considerable disadvantages to be faced by an appellant if he has to pursue an appeal while he is out of the country. This is particularly the case where his evidence is crucial, as is obviously the position here, and is more apparent in an appeal to SIAC where national security issues are concerned and where the matters relied upon may, to an extent, be unknown to the appellant.”

Against this background, where Parliament had prescribed those appeals which may and those appeals which may not, be made “in-country”, Mr. Southey submitted that, applying the approach in Soneji (above), Parliament could not have intended that a notice which wrongly stated that there was only an out-of-country-appeal, and prohibited the Appellant from returning to the UK, in circumstances where the Appellant was entitled (for a period of 10 days after receipt of the Notice) to return to the UK and make, and thereafter pursue, an in-country appeal, would be treated as a valid notice. The consequence of non-compliance with regulation 5 was the loss of a valuable right, particularly in the context of a SIAC appeal (see paragraph 29 above), which Parliament had conferred on persons in the position of this Appellant.

He acknowledged that defects in notices given under the Regulations would not always be fatal. There might be substantial compliance with the Regulations because a defect in a notice might be remedied by the contents of accompanying correspondence, as was the case in DJ (Defective Notice of Decision) Iraq [2004] UKAIT 00194, and Majid v Secretary of State for theHome department [2008] EWHC 2750 (Admin), where the notice did not state, as required, the reasons why the Appellant’s application for leave to remain based on 14 years continuous lawful residence was refused, but the Appellant clearly knew perfectly well what those reasons were, because he appealed, and did not complain that the notice was invalid until long after his appeal was dismissed. Mr. Southey submitted that there was no question of substantial compliance in the present case.

He submitted that the passage in CM on which Mitting J relied was distinguishable because there was in that case a great deal of “unscrambling” to do. CM’s appeal against the Secretary of State’s notice of intention to make a deportation order in 2004 had been dismissed in 2005. The deportation order was made in 2005. CMmade fresh representations asking that the deportation order be revoked. The Secretary of State refused to revoke the order on 27^th October 2008. CM did not appeal against the revocation because he, erroneously, believed that an in-country appeal was not possible. Instead, he pursued judicial review proceedings. His judicial review claim was rejected on 30^th October 2008, and he was deported to Jamaica on 9^th February 2009. By the time the matter came before the Court of Appeal in February 2010 there was a lot of unscrambling to do.

Mr. Southey submitted that, in contrast with CM, no unscrambling was required in the present case. The challenge to the validity of the Notice was made at the outset of the appeal on 30^th March 2011, and the claim for judicial review was determined on the following day before the hearing had ended, and well before judgment was given. Mitting J could either have quashed the Notice, thus requiring the Respondent to serve a fresh notice advising the Appellant of his right to return to the UK and make an in-country appeal; or if the Respondent had been prepared to exercise her discretion to allow the Appellant to return to the UK only for the purpose of pursuing his appeal before SIAC, Mitting J could have decided that, with an appropriate adjournment to enable the Appellant to attend, the hearing of his appeal could have continued, without the need to quash the notice. In the latter case there would have been an effective remedy for the failure to comply with the Regulations.

Mr. Swift made it clear that, whatever the position might have been before Mitting J if he had concluded that the Notice was not effective, the second option referred to in paragraph 33 (above) was not open to this Court if it decided that the defects in the Notice were such that it should be quashed. Even though quashing the notice would mean that the Respondent would have to serve a new notice under the Regulations, which would then enable the Appellant to return to the UK and make an in-country appeal, the Respondent was not prepared to allow the Appellant to return to the UK on a discretionary basis, even for that limited purpose. It follows that if the Notice is quashed the appeal process will have to begin again with service of a fresh notice under the Regulations.

Mr. Swift accepted that the Notice did not, as he put it, “contain accurate information” as to the Appellant’s right to re-enter the UK within 10 days to pursue an in-country right of appeal, but he submitted that this error was immaterial because the Appellant had lost nothing. He had appealed, and he had not lost the right to re-enter the UK and pursue an in-country appeal because he had that right in 2010 and could have asserted it when he received the Notice on 1^st June 2010. Had he done so his claim would have been successful: see MK.

When asked by the Court whether he contended that the Notice was a valid notice, Mr. Swift seemed somewhat reluctant to answer the question. Initially, he responded to the question by submitting that the validity of the notice was irrelevant because the Appellant had appealed against the decision to cancel his ILR. There was one statutory right of appeal, and an out-of-country appeal was as effective an exercise of that right as an in-country appeal. When pressed by the Court, Mr. Swift submitted that Mitting J’s conclusion that the Notice “gave effective notice of the Respondent’s decisions” was correct: see the final sentence of paragraph 20 of Mitting J’s judgment (paragraph 22 above).

Mr. Swift relied upon the statement of principle by Jackson LJ in CM (paragraph 24 above), and submitted that Mitting J’s conclusion that these proceedings should not be unscrambled was correct. The Appellant could have taken the point in June 2010 that he was entitled to re-enter the UK within 10 days, but he had failed to do so. That opportunity was past, and there was “no reason to undo past transactions.” Mr. Swift submitted that the fact that the proceedings were before SIAC was not relevant. There was no “SIAC dimension” which gave any added force to the submission made on behalf of the Appellant that an in-country right of appeal was a “valuable right.” The decision to cancel the Appellant’s ILR was not invalid, the Appellant had a right to appeal to SIAC against that decision which he had exercised, that was sufficient.

In the present case, it was common ground before Mitting J that if the Appellant’s claim for judicial review of the Notice was successful, the appeal to SIAC would have to be adjourned. The Respondent’s submission that the proceedings should not be unscrambled appeared to be based, at least in part, upon her opposition to an adjournment. When asked what the Respondent’s position would be in other cases where Appellants who were entitled to make an in-country appeal had been wrongly notified that they were not permitted to re-enter the UK and could only pursue their appeals from outside the UK, where there was sufficient time to make arrangements to enable them to attend the hearing of their appeals without the need for an adjournment, Mr. Swift replied that the Respondent would not, and the Administrative Court should not, take any steps (voluntarily serving a new notice on the one hand, or quashing the defective notice on the other) which would enable such an Appellant to pursue an in-country appeal. The Appellants in such cases would have missed the 10 day window for returning to the UK and that should not be undone.

I accept Mr. Southey’s submissions. Whilst it is true, as Mitting J said in paragraph 20 of his judgment (paragraph 22 above), that the assertion in the Notice that the Appellant did not have an in-country right of appeal did not entirely deprive him of an effective right of appeal, it did deprive him of a valuable right: the right to pursue his appeal in-country, see paragraph 28(d) of MK (paragraph 29 above). Section 105(2) enables regulations to be made which provide that a notice of decision must state, not merely that there is a right to appeal, but also how that right may be exercised. (paragraph 15 above)

It is not surprising that a notice of decision under the Regulations must contain advice, not simply as to whether there is a right of appeal against the notice, but also as to whether the appeal can be brought in-country. The importance of the right to bring an appeal in-country is demonstrated by the fact that Parliament has prescribed in detail in section 92 of the 2002 Act the kinds of appeal which may be brought while the appellant is in the UK, and has made provision in section 94 for a certification process which removes that right where an appellant’s claims are clearly unfounded (paragraph 19 above).

The importance of compliance with the notification requirements in paragraph (3) of regulation 5 is underlined by paragraphs (6) and (7) which provide for re-service of the notice containing the advice required by paragraph (3) in those cases where, initially, paragraph (3) need not be complied with. Against this statutory background, applying Lord Steyn’s approach in Soneji (see paragraph 21 above), I consider that Parliament would have intended that a failure in a notice of decision to comply with the requirement to advise an appellant that he was entitled to an in-country right of appeal would render the notice invalid.

The Court’s response to such invalidity would normally be to quash the notice, unless it was satisfied that there had been substantial compliance with the requirement: eg because the Appellant had been made aware by other correspondence from the Respondent that he did, in fact, have an in-country right of appeal, because the First-tier Tribunal had accepted an in-country appeal from the Appellant, or because he had been allowed to present his appeal in the UK having been permitted to re-enter the country to do so.

I endorse the view expressed by Collins J (a former President of the Immigration and Asylum Tribunal) in MK at first instance that common sense indicates that an appellant who has to pursue an appeal while he is out of the country faces considerable disadvantages, particularly in the context of an appeal to SIAC (paragraph 29 above). The handicaps under which appellants labour in SIAC are well established. Parliament has authorised a procedure which deprives appellants in SIAC of a fundamental right - to see the whole of the case against them - to which they would otherwise be entitled as a matter of fairness under the common law: see W (Algeria) v Secretary of State for the Home Department [2010] EWCA Civ 898, at paragraph 43 per Sir David Keene. In this procedural context the Court should be vigilant to ensure that appellants in SIAC are not further disadvantaged by a failure on the Respondent’s part to comply with the Regulations. This applies with particular force in the present case where the allegations against the Appellant were very grave indeed, and the Respondent’s case was not disclosed until a very late stage (see paragraphs 7-9 above).

Mr. Swift’s response to the Court’s question – what would be the Respondent’s position in those cases where Appellants who were entitled to an in-country right of appeal had been wrongly told in the Respondent’s notice of decision that they could appeal only out-of-country, but there was time to remedy the error prior to the hearing of their appeal (paragraph 38 above) – is a cause for concern. Appeals of this kind should not be treated as if they were ordinary civil litigation, where the Court might well proceed on the basis that each party would be expected to know, and to act upon, his rights.

This appeal process is initiated by the Respondent making an immigration decision. The Regulations were made because it was recognised that persons who were served with such decisions needed clear advice about their rights of appeal against the decision: whether they had a right of appeal, could they bring the appeal while in the UK, on what grounds could they appeal? It is the statutory responsibility of the Respondent to provide that advice. If it is discovered that for some reason, perhaps a decision of this Court clarifying the legal position, as was the case in MK, the advice in the notice of decision was erroneous, the Respondent would normally be expected to take steps, as a matter of good administration, to rectify her error. The Respondent’s reluctance to exercise her discretionary powers to permit a person in the position of this Appellant to return to the UK outside the Rules is understandable. In these circumstances, the only way in which the Respondent could rectify her error would be by the service of a corrected notice informing the appellant of his in-country right of appeal. If the Respondent either failed or refused to take any steps to rectify the error, it is difficult to see how the Court could properly decline to quash the defective notice, thus depriving the wrongly excluded appellant of any relief.

Mr. Swift’s submission that the Appellant did not “lose” his right to re-enter the UK within 10 days and pursue an in-country appeal because he could have asserted that right when he received the Notice on 1^st June 2010 does not bear scrutiny. The Notice told the Appellant that he should not seek to travel to the UK because he would be refused admission (see paragraph 6 above). Any attempt by the Appellant to assert his right to enter the UK would have been pointless: the Respondent would have refused to admit him.

Jackson LJ’s statement in paragraph 37 of his judgment in CM (see paragraph 24 above) that when a new right or remedy is established in the Court of Appeal “that is not normally a good reason to go back to earlier cases and unscramble decisions made by the parties on the basis of the law as previously understood” (emphasis added) is readily understandable in the context in which it was made. In CM it would have been necessary to go back to “earlier cases” and to unscramble the parties’ decisions in those cases.

That was not the position in the present case. It is unfortunate that the significance of the judgment of Collins J in MK on26^th August 2010 was not recognised by either party at an earlier stage in these proceedings, but once the Court of Appeal had upheld the judgment of Collins J, the MK point was raised on behalf of the Appellant shortly before the hearing of the appeal before SIAC began, the challenge to the validity of the Notice was raised at the outset of the appeal, and the Administrative Court was able to consider the point before the appeal was concluded. At that stage there was nothing to unscramble. An adjournment would have been required to enable the Appellant to attend his appeal, but whatever the merits of the earlier decision to refuse an adjournment, the fact than an adjournment would have been necessary would not have been a sufficient justification for declining to quash an invalid notice.

For these reasons I would allow this appeal and quash the Notice.

I agree.

I also agree.