S & Ors, R (on the application of) v First-Tier Tribunal (IAC)

These three cases concern the entitlement to appeal against a rejection of a claim to asylum under section 83 of the Nationality Immigration and Asylum Act 2002 ("the 2002 Act"). Section 83 provides that:

Permission has been granted in S's case, but not in those of D and W. It has been agreed on behalf of the Secretary of State that their applications should be considered on a “rolled up” basis. There are other differences in the circumstances of the three cases. In particular, D and W respectively had and unsuccessfully exercised a right of appeal under section 82 of the 2002 Act against an immigration decision. D's appeal was dismissed in December 2003 and W's was dismissed in August 2004.

All three cases, however, have a number of common features. The first is that an application for asylum was rejected and, at the same time, either no leave to remain or less than a year's leave to remain was granted. Secondly, at a later stage further representations were submitted and it was asserted that a fresh asylum claim arose. Thirdly, after the submission of the further representations, the Secretary of State granted indefinite leave to the claimants to remain outside the Rules, but made no decision on the applications asserting the fresh asylum claim and stated that unless told otherwise within 14 days would treat them as withdrawn.

The question that arises in the three cases is whether in these circumstances the grant of indefinite leave to remain ("ILR") gives rise to an entitlement to appeal against the earlier rejection of the individuals’ claim to asylum. In eachof the three cases immigration judges -- two in Birmingham and the third in Loughborough -- ruled that the decision against which the claimant was seeking to appeal was not one in which there is an exercisable right of appeal to the First-tier Tribunal or is one where the notice of appeal falls within rule 9(1A)(b) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230) and that the notice of appeal lodged was invalid.

These proceedings were launched by W on 4 June 2010, by S on 13 August 2010, and by D on 12 October 2010. W, S and D's solicitors are TRP Solicitors Limited ("TRP"). Mr McKenzie appeared on behalf of all three at the hearing. Mr Mandalia, instructed by The Treasury Solicitors, appeared on behalf of the Secretary of State, the interested party. I am grateful to both of them for their clear and helpful skeleton arguments and oral submissions.

The evidence on behalf of S and D consists of two statements by Mr Shotton, a solicitor at TRP, respectively dated 9 August and 1 October 2010, exhibiting the relevant documents. In the case of W there is no statement, but Ms Finch, described as a director/solicitor of TRP, signed a Statement of Truth (on page 4 of the N461) which was filed on 3 June 2010 and the statement of facts and grounds refers to a number of documents, including the decision to grant W indefinite leave to remain and the Tribunal's decision.

In all three cases the Tribunal has filed an Acknowledgment of Service stating it a tribunal and does not intend to make a submission. Evidence on behalf of the interested party, the Secretary of State, has only recently been filed in the form of a statement of Mr McGirr, a senior executive officer in the United Kingdom Border Agency ("UKBA") Specialist Appeals Team. His statement is dated 26 January 2011. Mr Magur is currently responsible for organising UKBA's response to all appeals allowed by immigration judges and all judicial reviews concerning the appeals process.

The interested party, the Secretary of State, has taken a different position in relation to the different claims. The case of D is the most straightforward from this point of view. An acknowledgment of service was filed on 22 October. It was late. In it the Secretary of State submitted that the claim was factually inaccurate, as the claimant had not had his further submissions rejected, either explicitly or implicitly, and stated the Secretary of State was willing to consider the submissions further and if she refused them that would amount to a decision that would be appealable under section 83. On 20 November 2010 HHJ McKenna ordered the application for permission to be listed for a hearing.

The case of W is procedurally more complicated. On 27 July 2010 the Secretary of State filed an Acknowledgment of Service stating in section A that she did not intend to contest the claim and in section C that "the defendant is an interested party", and "the defendant does not oppose the claimant's application to restore her right of appeal, pursuant to section 83 [of the 2002 Act] to the First-tier Tribunal". Not surprisingly, in view of that on 22 September HHJ Kirkham granted permission on the papers. The Treasury Solicitor subsequently wrote to the court querying the order which, also understandably in the light of the terms of the Acknowledgment of Service, referred to the Secretary of State as being the defendant. The letter suggested that it appeared the Tribunal had not been served with a claim.

In the light of this, following consideration of the correspondence on 10 December 2010 HHJ Robert Owen QC discharged Judge Kirkham's Order as having been made in error. HHJ Robert Owen QC stated that unless the defendant filed an acknowledgment of service for the purpose of defending the claim within 14 days of the order, the relief sought by the claimant would be granted. The judge did so because the proceedings appeared to be uncontested and in those circumstances there was no useful purpose in permitting the claim to proceed as if it was contested.

Unfortunately, due to a typographical mistake, the order stated that the grounds of defence were to be filed by 4.00pm on 10 December, the date on which the order was made. Moreover, the Order was apparently not served on the parties. It was re-issued by HHJ Purle QC with a fresh Order amending the time for filing grounds by the defendant to 10 January 2001.

Following that, on 29 December the defendant filed an Acknowledgment of Service in the terms to which I have referred. And on 6 January 2011, the Secretary of State filed an amended acknowledgment of service and summary grounds indicating an intention to contest the case.

The matter came before the Recorder of Birmingham, HHJ Davies QC, on 18 January. He found that the amended Acknowledgment of Service met the requirements of the amended order and adjourned the application for permission to be heard, together with the cases of S and D.

I deal with S's case, which in a sense became the lead case first. Although it is procedurally less complicated, the way that those representing and acting on behalf of the Secretary of State had proceeded is not satisfactory. The Secretary of State did not file an Acknowledgment of Service. On 5 October HHJ Oliver Jones QC granted S permission on the papers and directed that any person who wished to contest the claim filed detailed grounds and evidence within 35 days. No grounds or evidence were filed within that period. Detailed grounds dated 13 January were however filed and last week on 24 January, very shortly before this hearing, I granted the Secretary of State permission to rely on the grounds, provided an application to do so was made before the hearing. An application dated 25 January was made.

The reason given by an unnamed lawyer in the Treasury Solicitor's department for not submitting grounds in accordance with HHJ Oliver Jones's directions and the requirements of CPR 54.9(1)(b) and 54.14(1)(b) is that the Secretary of State "intended to make a decision" regarding S's outstanding application "thus rendering the current proceedings academic and saving all parties additional costs and use of valuable court time", but "this has not proved possible within the available time frame". The court was not informed about this intention at any prior stage. That in itself is not satisfactory. Nor does the application provide any explanation for the different stance taken by the Secretary of State in the cases of S and those of D and W.

The court is aware of the heavy case load on those acting on behalf of or representing the Secretary of State, but the late submission of detailed grounds in breach of the directions given and the Rules, with no explanation until the court explicitly required one, suggested a somewhat casual approach to the court and the Rules, which those acting on behalf of the Secretary of State regularly argue should strictly be complied with by claimant's representatives.

In S's case the effect of the decision has not been the savings of costs and court time. Additional time was needed by the court to consider whether the Secretary of State be permitted to participate. Moreover, there are possible additional costs to the claimant as a result of the Secretary of State's late decision to resist the claim, and at that very late stage to seek to rely on statements made by the then Parliamentary Secretary in the Lord Chancellor's Department in the committee stage of what became the 2002 Act. The Secretary of State, has not, because of the time this was raised, been able to comply with paragraph 4 of the Practice Direction (Hansard: Citation) [1995] 1 WLR 192.

The Administrative Court carries a heavy case load. It is incumbent on all practising in it to co-operate with the court to facilitate the efficient transmission of that business. The history I have set out suggests that in this case there has been an unfortunate lapse from that; in part because the court was kept in the dark as to what the Secretary of State wished to do or was seeking to do.

I turn to the facts of the individual cases. I deal with S's case first because, although not the first proceedings issued in time, it is the only one in which permission has been granted and the arguments have been developed primarily by reference to the facts in that case.

S, a national of Somalia, born on 3 March 1989, arrived in the United Kingdom as an unaccompanied minor on 6 October 2006. He claimed asylum. The Secretary of State refused the application on 15 November, but granted him discretionary leave to remain until 2 March 2007, the day before his 18th birthday. In an application dated 27 February 2007 on the form for Humanitarian Protection and Discretionary Leave, he applied for an extension of his leave to remain in the United Kingdom. The letter from his solicitors, also dated 27 February, stated that S contended he was a refugee and removing him to Somalia would breach his rights under Article 3 of the European Convention on Human Rights.

In a letter dated 2 March 2007 the Immigration and Nationality Directorate acknowledged receipt of the letter and stated that S's case fell into the category of legacy cases which it aimed to clear within five years. The letter states that there are some 450,000 case records and that no indication can be given as to when this case will be processed; that S's status and entitlements in the UK would remain unchanged until such time as a decision was made in his case.

Mr McGirr’s evidence (paragraph 4) is that since March 2007 new applications for asylum received by the UKBA have been assigned “to individual case owners” and applications before March "in respect of which there remains or remained an unresolved aspect of the asylum claim" were assigned to the Casework Resolution Directorate ("CRD"), a directorate within the UKBA established for the purpose of clearing outstanding cases. The letter of 2 March was thus recording that S's case was one of that very large number of cases referred to the CRD.

On 31 March 2010, three years later, the Secretary of State wrote to S. The first heading in the letter is "Grant of Indefinite Leave to Remain". The letter states that S's case had been reviewed and "having fully considered the information you have provided and because of the individual circumstances of your case" it has been decided to grant ILR, exceptionally and outside the Immigration Rules. The letter also states that "on reviewing your case it is noted that you have an outstanding HPDL claim. Unless you contact us within the next 14 days we will assume that you wish to withdraw the outstanding claim". In fact, the claim was for refugee status or humanitarian protection.

Mr McGirr’s evidence (paragraph 6) is that:

On 4 May 2010, S's solicitors wrote stating that S did not wish to withdraw his outstanding claim and wished to be recognised as a Convention refugee with ILR. S's legal representatives also sent a notice of appeal dated 6 May to the First-tier Tribunal (Immigration and Asylum Chamber). On 12 May the Tribunal issued a notice of hearing setting the appeal down for a case management review hearing in May and a full hearing on 8 June.

On 20 May, S's solicitors wrote to the Tribunal explaining that it was their case that S had a right of appeal under section 83 and giving reasons. They draw attention to a number of test cases which were awaiting a grant of permission to appeal to the Upper Tribunal and invited the Tribunal to stay S's case until the outcome of those cases was known. Those cases are a group in which the leading case is A, reference number AA/01624/2010. The Upper Tribunal considered the jurisdiction point raised in the hearing on 22 June 2010, but a decision is still awaited as a result of a serious illness of a member of the panel.

On the 20 May the Tribunal informed S's solicitors that the hearings listed for May and June had been adjourned. On the next day Immigration Judge Astle promulgated the decision which is the subject of S's challenge. The material paragraphs of the decision state:

The Tribunal Services wrote informing S's solicitors of this on the same day. I have stated that these proceedings were launched on 13 August and have described their subsequent procedural history.

D, a Zimbabwean citizen, born on 23 October 1969, arrived in the United Kingdom on 29 October 2002 and claimed asylum. His application was refused by the Secretary of State on 13 December 2002. His appeal to a special adjudicator was dismissed and a decision promulgated on 3 December 2003. Permission to appeal from that decision was refused by the IAT (as it then was) on 26 January 2004.

On 6 March 2009 D’s solicitors made further submissions to the Secretary of State on his behalf. These relied on new evidence and the then recent Country Guidance decision of the Tribunal in RN (Zimbabwe) [2008] UK AIT 00083. The letter stated that two of D's siblings had been granted refugee status on the basis of their affiliation to the Movement for Democratic Change, argued on the basis of the information submitted that he was clearly a refugee and invited the Secretary of State to reconsider his case.

In a letter dated 3 April 2009 the UKBA acknowledged receipt of the further submissions. On 23 March 2010 D was informed that his case was in the backlog of older asylum applications being considered by the CRD and asked to confirm certain family and personal details. His solicitors did so in a letter dated 9 April 2010. On 2 June, UKBA, acting on behalf of the Secretary of State, wrote to D granting him indefinite leave to remain in the United Kingdom. The letter contains a similar statement to that in S's case as to an assumption that he would wish to withdraw his outstanding further submissions and claim.

D's solicitors wrote to the Tribunal in a letter dated 29 June enclosing a notice of appeal, also dated 29 June. The letter stated that the appeal was brought under section 83 and gave reasons for believing there was a right under section 83. The Tribunal issued a notice stating the grant of status had not been enclosed and that was then sent under cover of a letter dated 5 July.

On 12 July Immigration Judge Peart made the decision that is challenged. The material parts of this decision state:

The reference to 6 November 2009 is clearly a mistaken reference to the solicitor's letter dated 6 March. The decision that "there is no valid appeal" and the covering letter dated 14 July is in the terms I set out earlier in this judgment.

In a letter dated 19 July, D's solicitors asked why status papers had not been sent in relation to D's partner and child whose details had been sent with the application. They asked whether their cases were to be decided together or separately and, if separately, why. There appears to have been a fear of imminent benefits and support problems should the family not be treated as a unit. The letter also states, "Please note that our client would like his asylum status to be determined". That letter of course is well outside the 14 days, but on behalf of the Secretary of State it is accepted that the asylum applications in all three cases, including this, would have been considered. These proceedings were lodged on 12 October 2010 and I have described their subsequent procedural history.

W is a citizen of Jamaica, born on 1 April 1963. She arrived in the United Kingdom on 16 July 2001 and was granted leave to enter as a visitor. She overstayed her leave to remain.

On 27 September 2002 she gave birth to a son in the United Kingdom. She has two other children who live in Jamaica. 22 months later in July 2004, she was detained as an overstayer and claimed asylum. Her claim was that she and her family were at risk from a man, the leader of a “killer gang”, because they were prepared to give evidence about a number of murder charges including one in respect of W’s father. The Secretary of State refused her application on 11 August 2004. An appeal to the Asylum and Immigration Tribunal was dismissed on 1 December 2004. The adjudicator found much of her account to be implausible and lacking in credibility and said that the genuineness of the documents provided was doubtful.

In a letter dated 10 July 2009, W's solicitors made additional submissions and enclosed new evidence upon which they sought to make a fresh claim for asylum based on the murder since the appeal in 2004 of W's mother and two siblings in Jamaica, apparently by the same gang. On 9 March the Secretary of State granted W indefinite leave to remain exceptionally outside the Immigration Rules in relation to the outstanding further submissions. The letter was in the same terms as in D's case and in S's case.

Paragraph 6 of the grounds states that in a letter dated 30 March W informed the Secretary of State that she did not wish to withdraw her further submissions, but that the Secretary of State has not replied. A notice of appeal, also dated 30 March, was sent by her solicitors to the Tribunal.

In a decision promulgated on 1 April 2010 Immigration Judge Freestone held there was no valid appeal before the Tribunal. The material parts of her decision are:

I have described part of the subsequent procedural history. It is not necessary to say more, save that there was some toing and froing and attempts were made to resolve the case by consent. The Tribunal and the interested party accepted that the decision contained an error of law, but only agreed to have a fresh consideration of the validity of the claimant's appeal. W's solicitors did not agree with this proposal. They said there was clearly a difference of approach as to the requirements of section 83 which would be replicated at any subsequent hearing and the matter would need to come to the court for resolution of that difference.

I have set out section 83 of the 2002 Act. The right of appeal under it only obtains where the individual has over one year's leave to enter or remain in the UK. By section 84(3):

In FA (Iraq) v SSHD [2010] 1 WLR 2545, EWCA Civ 696, Longmore LJ at [10] stated:

Procedural rules for the Asylum and Immigration Tribunal (now the Immigration and Asylum Chamber of the First-tier Tribunal) are contained in the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230). Paragraph 7(3) of the Procedure Rules provides:

“Where a person—

(a)

is served with notice of a decision to reject an asylum claim; and

(b)

on the date of being served with that notice does not satisfy the condition in section 83(1)(b) of the 2002 Act, but later satisfies that condition,

paragraphs (1) and (2)(b) apply with the modification that the time for giving notice of appeal under section 83(2) runs from the date on which the person is served with notice of the decision to grant him leave to enter or remain in the United Kingdom by which he satisfies the condition in section 83(1)(b).”

Rule 7(1) provides that notice of an appeal in the United Kingdom must be given if in detention not less than five days after he is served. There is notice of the decision against which he is appealing that in other cases not later than ten days after he is served. Rule 7(2)(b) is concerned with notices of appeal by a person who is outside the United Kingdom.

Paragraph 4(2) of the Immigration (Notices) Regulations 2003 (SI 2003/658) is also of relevance. It provides:

What can be termed the older provisions for appeal against specified immigration decisions as opposed to the status appeals in section 83 are now contained in section 82 of the 2002 Act. Section 82 grants rights of appeal to those without leave. Section 82(1) provides "Where an immigration decision is made in respect of a person who may appeal to a tribunal…", and then gives a list of immigration decisions against which an appeal may be lodged. The list is set out in section 82(2). These include refusal of leave to enter the United Kingdom, a variation of a person's leave to enter or remain if when the variation takes effect the person has no leave to enter or remain and a decision to remove a person from the United Kingdom.

By section 84(1) an appeal under section 82(1) must be brought on one or more of the grounds specified. The grounds include that the decision is not in accordance with the Immigration Rules, that it is unlawful under the Human Rights Act as being incompatible with the individual's Convention rights, that it is otherwise not in accordance with the law, that the person making the decision should have exercised discretion differently and, importantly in the present context, that the removal of the individual from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention or would be incompatible with the individual's Convention rights.

Sections 88 to 89 of the 2002 Act deal with exceptions and limitations to the rights of appeal conferred in sections 82 to 84 and the provisions about appeals in sections 85 to 87. Section 96 deals with "earlier rights of appeal". It provides that an appeal under section 82 against a new immigration decision may not be brought if the Secretary of State or immigration officer certifies certain matters. In respect to a previous appeal, section 96(1) provides these are: (a) the notification of a right of appeal against another immigration decision where the claim or application to which the new decision relates relies on a matter which could have been raised in an appeal against the old decision, and (b) in the opinion of the Secretary of State or immigration officer there is no satisfactory reason for that matter not having been raised in an appeal under the old decision. There are similar provisions in Section 96 (2) where a person asking to appeal has previously received a notice requiring him or her to state additional grounds for an application.

Finally, returning to the Procedure Rules, Rule 9(1A)(b) of the Procedure Rules makes provision for where “the Tribunal may not accept a notice of appeal”. It uses the term "relevant decision" which is defined in Rule 2 as "a decision against which there is an exercisable right of appeal to the Tribunal”. The material part of rule 9(1A)(a) is that "there is no relevant decision”.

Mr Mandalia vigorously submitted that the claim in S's case should be rejected and the applications for permission in D and W's cases should be refused. His submissions were most fully developed in the skeleton argument filed in S's case. Essentially the interested party's case is that, by the time the decisions had been made to grant the claimants indefinite leave to remain in the United Kingdom, a decision had not been made on their further claims for asylum and/or humanitarian protection.

Mr Mandalia submitted that the contention that the claimant be entitled to rely on the previous refusal of the asylum claim should be rejected. He did so because, he argued, Parliament has created a comprehensive statutory framework meaning that all immigration appeals in Part 5 of the 2002 Act. In granting an appeal under section 83 in circumstances where a person has been granted leave to enter or remain for a period exceeding one year, the right of appeal is against the rejection of the asylum claim. It is a precondition to an appeal under section 83 that there is therefore a decision upon "the asylum claim that is before the Secretary of State" -- see the skeleton argument in S's case, paragraph 23(3).

Mr Mandalia submitted that, if the claimants are correct and they can rely on the rejection of the previous claim for asylum made some time ago -- in S's case 2006, in D's case in 2002 and in W's case in 2004, and in the latter two cases decisions sustained in appeals --, the careful statutory framework which provides for appeal rights to arise only in certain circumstances would be subverted. That he submitted in turn "would be to subvert the clear will of Parliament that before the right of appeal under section 83 arises the Secretary of State has rejected the asylum claim and that the person may appeal to the Tribunal against the rejection of the asylum claim”. He submitted that the deliberate use of the words "made an asylum claim" and that "his claim has been rejected" in the context of the right under section 83(2) to appeal "against the rejection of his asylum claim" shows that Parliament intended there be a decision upon the outstanding asylum claim before the right of appeal arises. Had Parliament meant to encompass an appeal against the rejection of an earlier asylum claim, it would have used the phrase "any" to qualify the words "asylum claim" rather than the word "an". He also submitted that "the claimant's arguments would create a further right of appeal against the original rejection of the claimant's claim for asylum by the back door" -- see the skeleton argument in S's case, paragraph 26, and the similarly worded paragraph 22 in the other two skeletons.

He emphasised in particular that D and W had exercised rights of appeal under section 82 many years earlier in which the question whether removal would breach the Refugee Convention would (see section 84(1)) have been considered. Moreover, he submitted that the claimant's position would mean that in considering any appeal the Tribunal would become the primary decision maker of facts not considered by the Secretary of State. This is not what is intended by section 83 because the appeal to the Tribunal is stated to be against the rejection of the asylum claim by the Secretary of State. Mr Mandalia also relied on the decisions of Blake J in R(Etame) v SSHD [2008] EWHC 1140 (Admin), [2008] 4 All ER 798 and Mr Ockelton sitting as a Deputy High Court Judge in R(Omondi) v SSHD [2009] EWHC 827 (Admin). Mr Ockelton is Deputy President of the relevant chamber of the Upper Tribunal and has great experience in immigration cases.

Mr Mandalia submitted that to interpret section 83 in the way Mr McKenzie submitted it should be interpreted would be to introduce an irrational element into an otherwise reasonably coherent scheme. Omondi dealt with the issue of whether section 83 applied to a person who has had leave but only in the past and that leave was unrelated to his asylum claim or its rejection. Much of the discussion concerned the question whether the claimant had an in country appeal. The judge (at [19]) had no difficulty in concluding that the Secretary of State's arguments were to be preferred. Reading section 83 in the way contended for by the counsel for the claimant in that case would, he had stated, "produce an absurd and illogical result". It would "be entirely illogical that a person who had made an unfounded asylum claim should have an in country right of appeal arising solely from what Blake J in Etame's case at [42] called the "irrelevant happenstance" of whether he had an "unrelated grant of leave in the past".

In Omondi, but for the certification of the asylum claim, the claimant would have had an in country right of appeal under section 82. Mr Ockelton gave as one reason for his conclusion (see [20]) that the effect of the claimant's submissions would be to create two appeals: an in country one under section 83 and, as a result of the certification, an out of country appeal under section 82. The effect, he stated, is "avoided if sections 83 and 83A are understood as if giving rights of appeal only in circumstances where no right of appeal exists under section 82". As to Etame’s case, Mr Mandalia relied on [42] and [43] of Blake J's judgment. His Lordship stated:

Mr Mandalia submitted that just as in that case there was no nexus between the immigration decision formally generating the appeal and the representations to which the Secretary of State was responding, so here there is no nexus between the grant of ILR and the rejection of a previous claim for asylum.

The position taken on behalf of the Secretary of State is a difficult one to sustain. Section 83(1)(b) refers not only to a period exceeding one year but to "periods exceeding one year in aggregate". The Secretary of State's position would mean that only the position at the time of the refusal of asylum is relevant, that is, that "has been granted leave to enter or remain" in section 83(1)(b) refers to the time "an asylum claim … has been rejected" -- see section 83(1)(a).

The Tribunal in S and W's cases took the view that there is only a right of appeal if more than one year's leave to enter or remain is granted on the rejection of the asylum claim. In W's case this is expressed more clearly than in S's case in the part of the decision which both the Tribunal and the Secretary of State accept is erroneous. The Tribunal stated in paragraph 2 that "Section 83 only applies where the grant of leave is made at the same time as the rejection of the asylum claim". That is clearly erroneous. In the cases of S and D the Tribunal also (see respectively paragraphs 1 and 2 of the decisions) treated their cases as appeals against decision to grant them ILR. That too is erroneous. I accept Mr McKenzie's submissions (skeleton argument in S's case, paragraph 24(ii)) that while the grant of indefinite leave to remain is the trigger for the right of appeal under section 83, it is not the subject of the appeal.

The approach of the Secretary of State, in particular in D's case, in the letter dated 16 November, offering to make a decision on the further submissions and if it is negative "the claimant may at this stage be given a right of appeal under section 83" is misplaced. The right of appeal arises by virtue of the fact situation and not because the Secretary of State "gives" or "grants" it.

It is perhaps a small point and an example of the shorthand way that those involved in these cases on a day to day basis describe matters, but there is a complicated statutory structure. Loose language such as this may reveal an error in the understanding of that structure. It is common ground that the 2002 Act, as Mr Mandalia submitted, establishes a careful statutory scheme providing for appeals only in some circumstances. Parliament was alive to the problems caused by multiple appeals. See section 96 of the 2002 Act, which broadly speaking shuts out appeals under section 82 which are purely repetitious or which advance grounds which should have been raised in the past. Moreover, section 84(3) restricts the grounds on which an appeal may be brought under section 83, albeit now subject to the qualification established in FA (Iraq) as a result of the Community Law principle of equivalence. The question is whether these claims fall within or without or out with the carefully constructed linguistic boundary erected by section 83.

I have concluded that they fall within that boundary and that Mr McKenzie's careful and nuanced submissions are to be accepted. First, section 83 does not in terms require that a decision to grant leave be made at the same time as the refusal of the ground of asylum. Rule 7(3) of the Procedure Rules makes it clear that the Rules envisage the grant of leave to be at a different time and to be subsequent to the refusal of asylum. This is because it allows time for an appeal to run from the point where leave is granted and a condition in section 83(1)(b) is satisfied rather than at the point when asylum is refused. Rule 7(3) would not be needed if the grant of leave had to be at the same time as the refusal of asylum. Rule 4(2) of the Notices Rules is similarly drafted on the assumption that the leave which triggers a right of appeal under section 83 may be granted after the refusal of the application for asylum.

So much is in effect accepted by the Secretary of State insofar as it was accepted that in W's case the decision of the Tribunal was erroneous. The question is whether once there is a further application for asylum or other status the situation is different and that a further application in effect blots out the potential impact of the earlier rejection of asylum. I have concluded that it does not.

Before turning to those reasons, I make one observation at this stage about Omondi's case which I do not consider assists Mr Mandalia. I will deal with other aspects of the case later, but at this stage observe only that the Deputy Judge held at [21] that: “the right of appeal under section 83 arises only in circumstances where the appellant has made an asylum claim which has been refused and has been granted periods of leave exceeding one year in aggregate since the decision to refuse asylum".

As to Mr Mandalia's submission that the reference in section 83 and indeed in rule 7(3) to "an asylum claim" must be a reference to the asylum claim "before the Secretary of State" there are difficulties. The Rules envisage the grant of leave to be at a different time from a decision on asylum, and time to run from the point when leave is granted, ie an earlier decision on asylum. Secondly, once the Secretary of State has refused the claim for asylum, as Mr McKenzie observed there is no longer an asylum claim "before" her in the ordinary sense of that word.

Rule 7(3) and Rule 4(2) therefore are provisions which expressly envisage an appeal being generated by the grant of leave at a time when there is no asylum claim "before the Secretary of State" because she has already refused it. Moreover, on the construction given to section 83 by the Tribunal judges and for which the Secretary of State contends, the Secretary of State could leave a person without an appeal by splitting the decisions on the asylum claim and leave to enter or remain in a way which is inconsistent with the development of the law since the decision in Saad. The Secretary of State's submissions involve the implied insertion of additional conditions into what Mr Mandalia accepted was a careful statutory scheme. Mr McGirr’s evidence in this case is that the defendant has chosen not to determine the most recent application for refugee status on the basis of the additional submissions for reasons of administrative convenience. However, just as it is not, as Longmore LJ recognised in FA (Iraq) at [12], for the court to question the wisdom or convenience of the inroad into the one-stop principle created by sections 83 and 84(3), so here in the present cases it is not for the Secretary of State to question the wisdom or convenience of what Parliament has provided for in the statute.

I turn to Mr Mandalia's submission that the position taken on behalf of the claimants would lead to the Tribunal considering an asylum appeal before the Secretary of State has had the opportunity to consider the further representations and thus become the primary decision maker. He argued thiswould be contrary to the scheme in section 83, which envisages the appeal happening after the claim has been rejected. It is clear that in the ordinary way of things the Tribunal is hearing appeals from a decision of the Secretary of State. Mr McKenzie submits that in the present case, on his submissions the Tribunal would be hearing an appeal against the earlier refusal of asylum because of the subsequent fulfilment of the second requirement, and that, on the Secretary of State's approach there would be no possibility of an appeal against that earlier decision thereafter. It is, however, the Secretary of State who, as Mr McGirr has explained in his helpful evidence, makes the decision to grant leave, but not to reach a conclusion on the application for asylum. It may well be that that administrative practice has been adopted because it is considered that the effect of the subsequent representations and an assertion of a fresh asylum claim is considered to blank out the earlier refusal of asylum. But it cannot be appropriate to construe the section by reference to the administrative arrangements the Secretary of State has chosen to make.

In any event, in Saad 's case, Lord Phillips MR stated that the court was not to be taken as deciding that the question whether a person is a refugee can never be decided by the courts (and a fortiori the Tribunal) and in effect accepted that there could be such a situation. Mr Mandalia accepted realistically Saad's case was against him on this point.

As to Otome and Etame both involve very different fact situations. In Otome the three years’ leave as a student granted to the claimant had expired in 2005, three years before he made his claim for asylum in 2008 when apprehended as an overstayer. There was thus never a time when the claimant both had leave for over a year and had his asylum application rejected. His was an attempt to get round the certification process in section 96 by a person without leave at the material time. It is not surprising that the result is as it was.

As to Etame’s case, section 83 was not considered in it. It is a case concerned with section 82. It was not concerned with whether there was a right of appeal or not under section 82, but whether the undoubted right of appeal that existed, was to an “in-country” appeal, i.e. the case was concerned with the issue of venue.

As to whether the “nexus” point made by Mr Mandalia based on Etame is of relevance here, in a way that could be described as analogical relevance, I do not think it is. Taking the case of S as the exemplar, he was given ILR because his case was one of the many in the legacy category. He was in the legacy category because he had made a previous application for asylum which had been refused. Mr McGirr’s evidence is that in respect of cases in the legacy category decisions granting ILR are made independently of whether the individual concerned has made further submissions (see paragraph 5 of his statement).

Moreover, in paragraph 7 of his statement he states:

What is striking in paragraph 7 given the context of the scenarios in these three cases is that nothing is said about the decision that has been made on the original asylum claim. Neither Mr McGirr’s evidence nor Mr Mandalia's written oral and submissions really grapple with the implications of Rule 7(3) of the Procedure Rules. For these reasons I do not consider that it can be said that there is no nexus or the rejection of the asylum application which has been made can be called "an irrelevant happenstance".

Mr Mandalia sought to rely on the legislative history on what became section 83. I dealt with his application to rely on what was said by the then Parliamentary Secretary before the outset of the hearing and I now give the reasons for concluding that the conditions laid down in Pepper v Hart [1993] AC 593 and subsequent authorities for the material from Hansard are not satisfied.

Mr Mandalia submitted that the Parliamentary's Secretary’s statements at column 385 of the proceedings of Standing Committee E on 21 May 2002, when considering what became section 83 of the 2002 Act, clearly show that the references in section 83 to "an asylum claim" mean the asylum claim before the Secretary of State. The first statement is "it is unnecessary to refuse leave to enter on asylum grounds when rejecting asylum claims (inaudible) and granting exceptional leave to enter, but that right of appeal depends on both immigration decisions being carried out".

He also relied on what she said in paragraph 386 in response to the suggestion that people are often given as extensions of a year or less which did not attract a right of appeal and the process could be spun out by recurrent extensions so that no right of appeal is allowed for a long time. She stated that where a person is given exceptional leave to remain for less than twelve months "if a decision is made at the end of that period to remove the person he or she can appeal on the grounds of asylum. Asylum considerations will be taken into account at that point and the appeal re-visited".

Having considered the speech of Lord Browne-Wilkinson in Pepper v Hart [1993] AC 593 at 634, he submitted that these statements clearly disclose the mischief aimed at and the intent behind the words and recourse to them is relevant and provides an answer to the question at issue, and helps to avoid what Mr Mandalia submitted was an absurdity of the Tribunal looking at the appeal while the Secretary of State was still considering the asylum claim.

The reasons I consider that the conditions for recourse to the legislative history are not satisfied are; first, although there is a difference of view as to the meaning of section 83, I do not consider that the statute is ambiguous in the sense that it is genuinely open to two possible constructions as required by Pepper v Hart -- see Longmore LJ in Re OT Computers Ltd [2004] Ch 317 at 39. Secondly, and more importantly I do not consider that the passages clearly support the position for which Mr Mandalia contends.

It is to be remembered that the context of the debate was consideration of an amendment which would have deleted the requirement that the leave granted exceed one year. That was the focus of the debate. The Minister reiterated that the government's intention was not to stop people appealing by granting shortener periods of leave. Moreover, the last paragraph of column 385, if anything, supports the claimant's interpretation. The Minister stated that, where the leave is given for a period of less than a year, an appeal will not be available "because that is a deliberately limited period and a further decision will have to be taken at the end of it. If that decision is to refuse further leave or to grant more than a year's further leave, it will attract the right to appeal". There is no reference to the need to make a decision on the asylum application that is before the Secretary of State. The assumption is that the asylum application has been rejected much earlier.

To the extent the Secretary of State's position is dependant on the assertion of a fresh claim at some point after the refusal of an application for asylum, it is also not entirely logical because, if the Secretary of State is correct, a claimant may be worse off by re-asserting the claim to refugee status than he would be by simply bringing the fresh facts to the Secretary of State's attention and seeking an extended or indefinite leave to remain. Nothing in the legislation suggested that Parliament intended the right of appeal under section 83 to depend on whether or not further submissions had been made or whether the Secretary of State has made a further decision on those submissions.

I turn to the position in D and W's cases. In their cases it was also submitted by Mr Mandalia that there is no rational basis upon which it could be said that a person should be able to exercise a further right of appeal under section 83 against the refusal of a previous claim against which the claimant has exercised a right to appeal and received a determination. However, it is significant that whereas there is provision to preclude appeals under section 82 which are purely repetitious or which advance grounds that should have been raised in the past in section 96 of the 2002 Act, there is no similar provision in respect of appeals under section 83.

There is a particular need to prevent repetitious appeals under section 82 because they have the potential to frustrate removal of an individual while he pursues multiple appeals which are unlikely to be meritorious. I accept Mr McKenzie's submission that the same concerns do not apply to section 83 appeals where the appellant is by definition not liable to be removed from the United Kingdom and has no interest in spinning out the process. In any event, in the light of the Tribunal's decisions in Devaseelan [2002] UKAIT 00702, which was approved and affirmed in LD (Algeria) [2004] EWCA Civ 804, 27-40, there are inherent safeguards in the appellate process because the parties are not entitled to “a second bite of the cherry” and (see [37]) where there is no new evidence “it is not the second [Tribunal Judge's] role to consider arguments intended to undermine the first [Tribunal Judge's] determination.”

Moreover, ([39]) the first determination should always be the starting point. Facts personal to an appellant which were not brought to the attention of the first immigration judge although they were relevant should be treated with “greater circumspection”, and country evidence dating from before the determination of the first judge is to be treated with caution.

Judge LJ (as he then was), delivering the judgment of the court in LD (Algeria), stated at [40] that “the great value of the guidance [in Devaseelan] is that it invests the decision making process in each individual fresh application with a necessary degree of sensible flexibility and desirable consistency of approach without imposing unacceptable restrictions on the second judge's ability to make the findings which he conscientiously believes to be right.” These principles were also discussed by the Tribunal and the Court of Appeal in AS and AA (Somalia) [2006] UKAIT 00052, [2007] EWCA Civ 1040. A majority of the Court of Appeal differed from the Tribunal on the position where the same facts arise in appeals involving different appellants, but not on the position where the parties are the same. The Tribunal said (at see paragraph [61]) that in that sort of case "the previous judgment is not binding but it is not to be ignored. If there is no good reason from departing from it, it must as between the parties to that litigation be treated as settling the issues with which it is concerned and the facts on which the determination was based”.

Accordingly, I do not consider that the fact that W and D had previously exercised a right under section 82 has the effect for which Mr Mandalia contended. The clear difference drawn between the position of status appeals and appeals against immigration decisions in section 96 would be undermined if the court implied in to the complex statutory scheme a limitation. Should Parliament wish to do this, it is of course possible for it to do so. That deals with D's case and most of W's case.

As far as the rest of W's case is concerned, I have noted that the Tribunal and Secretary of State have accepted the decision was initiated by an error. Notwithstanding the different and somewhat unsatisfactory procedural history of W's case, the fact that no claim to continue, no claim is made on behalf of the Secretary of State there are additional arguments that apply only in her case.

For these reasons I grant the application in S's case. I give permission in W and D's cases and grant the applications.