Nirula v First Tier Tribunal

THE DEPUTY JUDGE: This is an application for permission to apply for judicial review ordered into court by Timothy Brennan QC, sitting as a Deputy Judge of this court, who also ordered the substantive hearing to take place immediately, if permission be granted.

The principal issue as to the jurisdiction of the First-tier Tribunal in the circumstances of the present case is one which clearly troubled Mr Brennan, and I am told troubles some other judges. For that reason, I extend time so far as is necessary, and grant permission. The extension of time for those purposes does not, of course, mean that the timescale in relation to these proceedings as a whole becomes irrelevant. I deal with that matter at the end of this judgment.

The facts

The facts are as follows. The claimant is a national of Nepal. On 13 November 2003, he entered the United Kingdom with his wife. He had entry clearance as a work permit holder. On 16 October 2008, he obtained indefinite leave to remain. He applied for citizenship, but that was refused because he admitted to having used multiple identities.

On 27 August 2010, the claimant was arrested and detained. In interview, he appears to have admitted that he had obtained leave to enter using a different identity from his own. The Secretary of State for the Home Department served him with forms indicating that he was, for that reason, an illegal entrant. The second form served on him notified the claimant of the Secretary of State's decision to remove him as an illegal entrant. It informed him of a right of appeal which he could exercise from outside the United Kingdom.

The claimant filed a Notice of Appeal with the First-tier Tribunal, the defendant to these proceedings. In the Notice of Appeal, the claimant said that he had a right under Article 8 of the European Convention on Human Rights. I will read out the grounds of appeal in full. They are as follows:

The claimant remained in the United Kingdom at the time of that notice and has done ever since. He had never previously invoked any Article of the European Convention on Human Rights to justify his presence here.

On 18 November 2010, the Tribunal convened to consider issues raised by the appellant's Notice of Appeal. I do not doubt that it was thought that the hearing might include the substantive consideration of the appeal, but the Immigration Judge raised the issue of jurisdiction. Both parties were represented before him. He drew the attention of the appellant's representative to the issue, and he invited submissions as to jurisdiction.

On 1 December, the claimant's representative filed submissions. On 19 January 2011, the Tribunal decided that it had no jurisdiction to hear the claimant's purported appeal. Its reasoning was as follows.

First, the claimant did not fall within section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002, because the wording and grammar of that paragraph require a human rights claim to have been made prior to the filing of a Notice of Appeal; secondly, that the Secretary of State had taken the jurisdictional point in the Notice of Decision, and there was no need for it to be raised again formally at the hearing.

The Tribunal's records are said to indicate that that decision was served on the claimant and his solicitors. That certainly would be the usual practice, and it is what is required by the First-tier Tribunal's rules. The claimant's solicitors assert that they did not receive the Notice of Decision. They requested another copy on 1 February 2011, which was received on 21 February 2011. The present claim was filed on 26 April 2011.

I should complete the story of the facts, so far as they bear on the claimant's history, in this way. On 14 May 2011, the claimant was sentenced to 8 months' imprisonment. On 2 June 2011, the Secretary of State wrote to the claimant, offering to consider his human rights claim if it were made to the Secretary of State.

The law

The legal provisions relevant to this claim are as follows. First, an illegal entrant is defined by section 33 of the Immigration Act 1971, to include a person who has entered the United Kingdom by deception. Paragraphs 8 to 10 of Schedule 2 to the 1971 Act provide a power to remove illegal entrants. I should say that in the present claim there is no challenge either to the jurisdiction of the Secretary of State to issue the decision that she did issue in relation to the claimant's history, or to her assessment of him as an illegal entrant.

Part 5 of the Nationality, Immigration and Asylum Act 2002 is headed “Immigration and Asylum Appeals”. It consists of sections 81 to 117 of the Act. Section 82 provides, so far as relevant to this claim, as follows:

Section 84 provides for grounds of appeal against an immigration decision. One is that the decision is contrary to the European Convention on Human Rights, and another is that the removal of the claimant in consequence of the decision would breach the United Kingdom's obligations under that Convention.

Section 92 is headed "Appeal from within United Kingdom: general". That section provides, so far as relevant, as follows:

Section 113 of the same Act defines a human rights claim as follows:

Although there is reference to the certification provisions of section 94 and 96 in the written skeleton arguments and there was reference to them at the hearing, I do not need to set them out here.

Mr Malik's claim raises two principal issues.

The issues: 1: “has made”

The first is whether, in the circumstances of this case, the claimant is be to regarded at the relevant time as a person who “has made” a human rights claim within the meaning of section (92)(4)(a). That is important because, as his appeal is not against one of the kinds of decision mentioned in s (2)(4)(a), he will otherwise have no statutory right of appeal while he remains in the United Kingdom.

The position is, as I have indicated, that the claimant made his human rights claim for the first time in his Notice of Appeal, and the question is, broadly speaking, whether that was too late. Mr Malik, on behalf of the claimant, submits that the claimant has, by the ordinary use of language, made a human rights claim, and by the time the Tribunal comes to consider the issue, that claim is in the past. It must be, because it was in the Notice of Appeal.

In response, Mr Dunlop on behalf of the Secretary of State points out that "human rights claim" is defined in section 113 as "made by a person to the Secretary of State in a designated place," and that whatever might be said of the claim made in the grounds of appeal, it was not made to the Secretary of State. He refers, amongst other cases, to the decision of the Asylum and Immigration Tribunal in SS (Turkey) v Secretary of State [2006] UKAIT 74.

In response to that, Mr Malik argues that, first, the provisions of section 113 are applicable, as the section itself makes clear, only if no contrary intention appears, and that it may be that a contrary intention appears by the circumstances of a case such as this.

Secondly, he argues that the definition does not work in any event. There never has been a place formally designated by the Secretary of State for the purposes of receiving asylum and human rights claims.

Thirdly, he points out that under the rules of the First-tier Tribunal, Rule 12 provides for the Notice of Appeal, with its grounds, to be forwarded to the Secretary of State on receipt, by the Tribunal. That means, he says, that a claim made in the grounds of appeal is necessarily made to the Secretary of State.

In my judgment, none of these arguments has merit. There is no contrary intention apparent in any section of Part 5 of the Act. Specifically, I see no sign of any contrary intention in section 92. The lack of a specifically designated place for an asylum or human rights claim does not mean that there are no places, nor does it mean that an asylum or human rights claim cannot be made within the meaning of the Act, and of section 113 in particular. The fact that a valid appeal is to be passed on by the First-tier Tribunal to the Secretary of State does not mean that the claim is made to the Secretary of State. Nor, incidentally, does it mean that the appeal is made to the Secretary of State. It is made to the Tribunal. That was the conclusion also reached by Silber J in R(Rainford) v Secretary of State [2008] EWHC 2474 (Admin).

But, in any event, Mr Malik's submissions ignore the tense of "has made" in section 92(4)(a). The provision is that a person may appeal from within the United Kingdom only if he "has made" an asylum or human rights claim. It is perfectly clear that the making of the claim -- a human rights claim in this case -- must precede, at any rate, the Notice of Appeal. The provision makes no sense at all if a right of appeal is granted by appealing. No authority, in my judgment, is needed for that conclusion. It is the simple meaning of the words.

It is worth adding that this was not the issue before this court in R (Jisha) v Secretary of State [2010] EWHC 2043 (Admin), on which Mr Malik relied. That was a decision on the interpretation of paragraph 353 of the Statement of Changes in Immigration Rules, HC 395, which, unlike the appeals provisions of the 2002 Act, is an important fail-safe provision to ensure that human rights and asylum claims are properly considered before a final decision to remove a claimant, which may well be after an unsuccessful appeal. The interpretation of the words of page 353 is therefore likely to be rather wider than is necessitated by the construction of the appeal rights themselves in Part 5 of the Act.

Having said that, in my judgment, the sense of the provision of the words "has made" stretches, if I may so put it, further back than the need to have made a claim before the Notice of Appeal.

The scheme of Part 5 of the 2002 Act is of decisions carrying rights of appeal. That scheme is also implemented by the Regulations made under the Act.

At the hearing, I mentioned Rule 7 of the First-tier Tribunal Rules, which set out the time for appealing to the First-tier Tribunal under the Act. Those rules were made under the general powers formerly set out in section 106 of the 2002 Act, and are adopted by the Tribunal Procedure Committee, following the abolition of the Asylum and Immigration Tribunal, and the transfer of its functions to the First-tier Tribunal and the Upper Tribunal.

In Rule 7(2)(a), a specific time limit is fixed for cases in which the person (i) was in the United Kingdom when the decision against which he is appealing was made; and (ii) may not appeal while he is in the United Kingdom by reason of a provision of the 2002 Act. That is obviously apposite to a case such as the claimant's, and appears to indicate a structure in which the rights of appeal derive from the decision itself.

I would naturally be cautious before using delegated legislation as a means of interpreting a statute. But I do not need to. Section 105 is as follows:

I do not need to go into the Immigration (Notices) Regulations 2003 (SI 2003/658), which are made under that section. What is clear on the face of the Act is that section 105, which is in Part 5, clearly envisages that both whether there is a right of appeal and how and when it can be exercised are matters known at the time when notice of the decision is given. Those provisions in my judgment rule out the possibility of those matters changing after the notice of the decision is given.

As I have already remarked, the tense of "has made" in any event prevents the claim being made as late as the Notice of Appeal. But it cannot have been intended that a claim made after the notice of the appealable decision should invalidate the notice, as if would if the claim itself could change the answer to the question how and when the right of appeal may be exercised.

This reading of section 92(4)(a), excluding a right of appeal from within the United Kingdom in circumstances such as the present case, does not mean a prospect of a multiplicity of appeals, as I shall explain later in this judgment. What it does do is to look at the statutory appeals process as a whole, remembering that one (but only one) of its functions is to prevent unjustified stays in the country for the purpose of pursuing umeritorious appeals.

I should say finally on this issue that Mr Malik, very properly, drew attention to the difference in tense and apparent effect of the provisions in 92(4)(b), but I do not think that that affects the issue. For the same reasons as I have already given, a person who has had a in-country right of appeal under that paragraph only has it if, at the time of the decision, he is of the class specified, and claims as specified in that paragraph.

The issues: 2: jurisdiction and procedure

I turn then to Mr Malik's other principal argument. This was that, as the point about jurisdiction had not been clearly raised by the Secretary of State at the hearing, it could not now be relied upon.

I have set out the facts above. What, it will be remembered, happened in this case was that the Secretary of State served a notice clearly indicating that rights of appeal were exercisable from abroad. The claimant, whilst remaining in the country, put in a Notice of Appeal nevertheless. The matter was listed for hearing but the Immigration Judge sought submissions on whether he had jurisdiction. He gave the appellant's representative time to consider the issue and put in written submissions. He did not seek submissions from the respondent, who was represented at the hearing. No doubt he though that, obviously subject to anything the appellant might say, the matter was settled by authority.

Mr Malik relied heavily on a decision of the Court of Appeal in Anwar & Adjo v Secretary of State for the Home Department [2010] EWCA Civ 1275. In Anwar -- who was the relevant claimant of the two for present purposes -- the point about jurisdiction was taken before the Immigration Judge by the Secretary of State. The Immigration Judge decided it incorrectly. The Court of Appeal had little difficulty in determining that, on reconsideration, the Asylum and Immigration Tribunal had not erred in law by concluding that the Immigration Judge had never had jurisdiction to entertain the appeal.

The difficulty, if there be one, arises in relation to what the position would have been if the point had not been taken. Sedley LJ (with whom the other members of the court agreed), in giving his judgment, said this at paragraphs 19 to 23:

The last sentence of that extract draws attention to the fact that those remarks were clearly obiter. They relate to what the position would have been if the facts had been contrary to those that actually occurred in Anwar's case.

But the remarks are clearly entitled to the utmost respect. They do however, in my judgment, cause some difficulty. There can be no doubt in principle of the difference between constitutive and adjudicative jurisdictions. It may, however, sometimes be difficult to ascertain on which side of the line a particular issue falls. It will be necessary to take all the facts and circumstances into consideration before making the decision.

Whether Sedley LJ's observations on this particular issue are correct is, with the greatest respect, a matter that may well require further attention in a case in which the decision on them is necessary to determine the appeal. I say that for the following reasons.

On points (b) and (c) it is perhaps worth repeating the words of Goddard LCJ in the locus classicus R v Fulham, Hammersmith and Kensington Rent Tribunal, ex parte Zerek[1951] 2 KB 1,6:

It is perhaps instructive also to look at R v Commissioners for Special Purposes of Income Tax (1888) 21 QBD 313, a decision of a strong Court of Appeal (Lord Esher MR and Lindley LJ). It is an old case, but the authorities on jurisdiction form a continuous series over many years, and this case is indeed cited by Sedley LJ in Carter v Ahsan.

The taxpayer company obtained from the General Commissioners orders for the repayment of income tax. The Special Commissioners, whose task it was to pay on the orders, refused to pay, saying that the General Commissioners had had no jurisdiction to issue the notices, as the application for them was made out of time.

The Court of Appeal saw no difficulty in taking on the task of reviewing the Special Commissioners' decision. Lindley LJ said that, in any event, the taxpayer was put in a better position by having the orders for repayment, in that they stood unless quashed, but it was the task of the court to decide whether they should be quashed.

What is striking in Lindley LJ's judgment, in which he agreed with the Master of the Rolls, is that the Court of Appeal clearly did not know what had transpired at the hearing before the General Commissioners: whether the point had been taken, and whether it had been argued or not. That must surely be because procedural issues such as this are not relevant to the question of the establishment of a jurisdictional fact.

That is, of course, not to say that a decision in a claimant's favour is perpetually at risk of being set aside for lack of jurisdiction. As Lindley LJ points out, the decision stands unless set aside. The claimant has an advantage by obtaining the decision. If it is made without jurisdiction, it will need to be appealed. An appeal needs to be brought in time, it needs permission, and if the jurisdictional factor has been determined in the claimant's favour and the alleged error cannot be established without further evidence on appeal, a court or tribunal may, essentially, exclude its consideration by refusing to allow the further evidence to be called. That is what happened in Barber v Thames Television Plc [1991] ICR 253.

Sedley LJ's views on the issue are bolstered at paragraph [22] of Anwar by reference to two examples said to show that words such as those found in section 92(1) do not “bar the door to justice”. But, again with the greatest respect, it is very far from clear that the examples are apposite. The Limitation Act example seems entirely persuasive until it is remembered that the rule that the defence of limitation has to be specifically pleaded is of such venerable age, (deriving from two decisions of the time of Charles I: Thursby v. Warren (1628) Cro. Car. 159; and Stile v Finch (1634) Cro. Car. 381) that the application of that rule would have to be specifically excluded from the interpretation of any modern Limitation Act. And, in Adorian, in which Sedley LJ again gave the leading judgment, the permission needed was that of the court. That is to say that, under the statute, the court had power to grant itself jurisdiction. A statute in those terms is likely to result in an approach to interpretation of the "barring of the door" different from that applicable when there is, (as Lord Esher put it in the Income Tax Commissioners case, “a statute saying that, if a certain state of facts exists and is shown to such a tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise”.

As I have said, the treatment of this issue in Anwar is obiter in any event. I have dealt with the matter at length because it formed such a major part of Mr Malik's submissions on this case. If I were required to reach a view, I would, for the reasons I have given, depart from what is said obiter by Sedley LJ in the Court of Appeal in Anwar. But I do not need to do that.

In the present case, as in Anwar, the point was taken. It was taken by the Secretary of State in the Notice of Decision, it was taken by the Tribunal, and the claimant had every opportunity to deal with it. There was, and is, no doubt about the jurisdictional fact. The claimant is in the United Kingdom. There is no rule of law saying that where jurisdiction depends on a jurisdictional fact, a tribunal is obliged to proceed when satisfied that, in the light of the facts, it has no jurisdiction. There is equally no rule of law that a tribunal is obliged to call on a party whom it does not need to hear for the purposes of making its decision, and that its failure to hear from that party affects its jurisdiction. There are no pleadings in proceedings before the First-tier Tribunal (Immigration and Asylum Chamber). Matters put in the documents before the Tribunal (including the Notice of Decision) ought to be taken into account, but the parties' positions are not fixed by them.

I should add that, in addition, I agree with the submission made by Mr Dunlop that success on this ground would be pointless. The reason Mr Dunlop gave for that submission was that, if Mr Malik succeeded in having the Tribunal's decision that it had no jurisdiction quashed on this ground, the matter would certainly be raised by the Secretary of State in a subsequent hearing of the same issue, and that no purpose would be served by litigation to establish the point.

The position, therefore, is that the Tribunal had no jurisdiction. It was entitled -- indeed, in my judgment, bound -- to come to the conclusion that it had no jurisdiction. The Tribunal, therefore, made no error, and the substantive claim in these proceedings falls to be dismissed.

Delay, alternative remedies and discretion

If that had not been my conclusion, I should nevertheless have refused the court's assistance to the claimant.

The witness statements supporting the extension of time for the purposes of these proceedings makes no reference to service on the claimant, and the relevant part of the claim form must be drafted with reference to receipt by the solicitor unless it is saying, wholly implausibly, that the claimant's own copy after a long delay happened to arrive on the very day that the solicitors received a second copy.

In any event, there is no explanation for the further delay to 26 April, when the claim was served. I do not find that the claim was issued within three months of the decision; but it was in any event certainly not issued promptly.

The claimant has failed to give any details of his claim beyond those set out in the grounds of appeal. At the hearing, Mr Malik attempted to flesh out the claim, “on instructions”. There is no evidence that the claim has any substance, and it is clear that the claimant and his advisers have deliberately chosen that that be the case.

Without a right of appeal against the Secretary of State's decision so far made, the claimant is nevertheless entirely protected by the Secretary of State's policy, to which reference was made by Mr Dunlop in his skeleton argument. Chapter 51 of the Secretary of State's Enforcement Instructions and Guidance provides as follows.

The process set out, perhaps slightly cryptically, in that instruction has the clear effect that a claim made to the Secretary of State after the service of an immigration decision, such as that in this case, will result in the withdrawal of the decision that carries no right of appeal, and, if necessary, the making of another decision. But by then, of course, there can be no doubt that the claimant has made a human rights claim, and for that reason the new decision will carry an in-country right of appeal unless certified.

That was the provision to which I earlier referred as preventing a multiplicity of appeals. A claim made to the Secretary of State after a notice of this sort will, essentially, cause the original appeal to drop, because the Notice of Decision will be withdrawn. All it needs is for the claim to be made to the Secretary of State: not the Tribunal or the court, but the Secretary of State. Not merely did the claimant chose not to do that in this case: he has ignored and hence in effect refused a specific offer by the Secretary of State, made on 2 June 2011, to consider his Article 8 claim, if he chose to provide the evidence upon which he relied.

The combination of these five features causes me to regard this claim as wholly abusive. A person who has a right to remain in the United Kingdom, transcending the normal rules of immigration law, may be expected to be anxious to claim that right. The claimant has taken every opportunity to delay and, despite opportunities, failed to do anything to substantiate his claim. The course of events appears to show that he is deploying these proceedings merely to delay his removal.

Conclusion

Those are the reasons why, as a matter of discretion, the claimant would not have had the court's assistance if he had established his claim on the merits. But, as I have decided, he does not, and the application for judicial review is therefore refused.

MR THOMANN: I would simply ask that my costs be borne by the claimant. Those costs should be the subject of detailed assessment if not agreed.

MR MALIK: My Lord, I accept that.

THE DEPUTY JUDGE: The claimant must pay the defendant's costs, to be subject of assessment on the standard scale if not agreed.

MR MALIK: My Lord, I have an application for permission to appeal. In my respectful submission, there is a compelling reason why an appeal should be heard by the Court of Appeal. If I may hand up a paper to illustrate my submission.(Handed).

THE DEPUTY JUDGE: Mr Thomann, have you seen this?

MR THOMANN: I have.

MR MALIK: My Lord, last year I appeared before the Master of the Rolls for a permission application in RA(Pakistan) v Secretary of State. The Master of the Rolls granted me permission and prepared this note after granting the permission.

THE DEPUTY JUDGE: Will you give me an opportunity to read it?

MR MALIK: Indeed, my Lord. (A short pause). My Lord, in RA(Pakistan), just a few days before the hearing, the Secretary of State conceded the appeal and issued the (Inaudible). In my respectful submission, the fact that he had (Inaudible) had granted permission to test the legal argument concerning the jurisdiction of the tribunal's construction of 92(4)(a) and section 113(1), in itself is a compelling reason for permission to be granted, so that this area may be considered by the Court of Appeal. Of course, my Lord has observed in the course of the judgment that the judgment of Sedley LJ is somewhat difficult and, in my respectful submission, it is surely desirable for the court to look at that judgment and to clarify its reach and proper scope. For that reason, I invite my Lord to grant me permission.

THE DEPUTY JUDGE: Thank you. Mr Malik, on behalf of the claimant, applies for permission to appeal to the Court of Appeal. In support of that application, he hands up a note initialled by Lord Neuberger MR, dated 3 March 2010, which indicates the Master of the Rolls' view on further proceedings in the Court of Appeal on another case, which, as it transpired, did not need to trouble the Court of Appeal.

I shall refuse permission for the following reasons. First, the note, which predates many of the decisions to which I have made reference in my judgment, does not persuade me that, on the facts of this case, the issue is one which needs to trouble the Court of Appeal. Secondly, in any event, this being a case where the Secretary of State remains open to consideration of the claimant's case on its merits if an application is made to her, it is not, in my judgment, an appropriate one to proceed further by way of a judicial review claim.

MR THOMANN: I am grateful.

MR MALIK: Thank you. My Lord, in those circumstances, may I respectfully ask my Lord to order a transcript of this judgment to be made available as soon as possible. The claimant will pay for that.

THE DEPUTY JUDGE: I do not think you need to do that. This is a substantive application for judicial review, because I gave permission at the beginning of the judgment, and it will therefore appear on BAILII quite shortly. I think a transcript is prepared routinely in such circumstances. You would need to pay if it remained a refusal of permission, but it does not. If you need that order, yes, you have it, but I do not think you need it.

MR MALIK: I am grateful, my Lord.