Chetan Bhavsar v The Secretary of State for the Home Department

“65. I rely on all my earlier findings in respect of Paragraph 276ADE(1) which I do not need to repeat here. I also rely on the fact that the Appellant came to the United Kingdom in 2011 with leave as a student and therefore he ought not to have harboured any expectation of being permitted to stay in the United Kingdom on a permanent basis.

66. I accept that the Appellant has family here in the United Kingdom. His evidence is that he has an aunt and uncle who support him financially and a sister as well as cousins. I find it extremely unusual that none of his family submitted a Witness Statement in support of his appeal or attended the hearing. In any event, the Appellant will be able to maintain his relationships and friendships through modern means of communication such as phone and Skype and various forms of social media. There is nothing in the Appellant’s family dynamics or friendships that would tip the balance in his favour when weighing the proportionality of his removal.

67. The submission was made that the Appellant’s life has been ruined by taking the TOEIC test and if he had never taken it he would not be in the situation in which he finds himself.

68. On the specific facts of this case, there is no credible evidence that the Appellant’s removal is a disproportionate interference with his family life.

69. I find that the public interest is strong. There is nothing in the specific facts of this case that would outweigh the public interest.

70. Accordingly, the appeal is refused.”

(a) The application to the First-tier Tribunal for permission to appeal

“Either party may apply to the First-tier Tribunal for permission to appeal to the Upper Tribunal on a point of law arising from the First-tier Tribunal’s decision.

Any application must be made in accordance with the relevant Procedure Rules and must be provided to the Tribunal so that it is received no later than 14 days after the date on which the party making the application was provided with written reasons for the decision …”

“1. The Appellant seeks permission out of time to appeal against a decision of the First-tier Tribunal (Judge G Clarke) promulgated on 20 June 2018 whereby it dismissed the Appellant’s appeal against the Secretary of State’s decision to refuse him leave to remain on the basis of his private and family life. The grounds for permission to appeal were received by fax on 5 July, 2018 at 18:18 which is after the close of business when they should have been received on 4 July, 2018 in terms of the Tribunal Procedure (Amendment) Rules 2018. The application is refused.

2. In terms of R (on the application of Onowu) v First-tier Tribunal (IAC) (extension of time for appealing: principles) IJR [2016] UKUT 00185 (IAC) I find there is no merit in the grounds in any event. The grounds do not set out where the Judge has arguably erred in law. They are simply a disagreement with the decision. It is submitted that any public interest in removal is outweighed by the specific circumstances of the Appellant established as per the 5 stage Razghar [sic] test. The Judge has considered the evidence and made appropriate findings which were open to him to make having also had the benefit of oral evidence on the day of the hearing. It was open for the Judge to consider what weight he felt it appropriate to place on the evidence before him in the proportionality exercise. The Judge has given adequate reasons for his decision with reference to section 117B of the Nationality, Immigration and Asylum Act 2002.

4. [sic] The grounds disclose no arguable error of law.”

(b) The application to the Upper Tribunal for permission to appeal

“1. In this case the First-tier Tribunal refused the application for permission to appeal on the ground that the application was made too late (see Tribunal Rules of Procedure 2014, rule 33(2)).

2. The application for permission to appeal made to the Upper Tribunal did not include any statement of the reasons why the application to the First-tier Tribunal was not made within the time permitted (see Tribunal Procedure (Upper Tribunal) Rules 2008, rule 21(7)(a)). Any failure to comply with rule 21(7)(a) arguably goes to the jurisdiction of the Upper Tribunal to hear the appeal.

3. Whether rule 21(7)(a) applies, and if so whether the Appellant’s failure to comply with it goes to this Tribunal’s jurisdiction to entertain the appeal should be determined as preliminary issues. Given the discrete nature of the substantive issue raised by the Grounds of Appeal, the preliminary issues can be listed for hearing with the substantive appeal to follow in the event that the Appellant succeeds on the preliminary issues.”

(c) The First-tier Tribunal Procedure Rules

The Asylum and Immigration Tribunal (Procedure) Rules 2005

“ 24 .-(1) A party seeking permission to appeal to the Upper Tribunal must make a written application to the Tribunal for permission to appeal.

(2) … An application under paragraph (1) must be sent or delivered to the Tribunal so that it is received no later than 5 days after the date on which the party making the application is deemed to have been served with written reasons for the decision.

…

(4) If a person makes an application under paragraph (1) later than the time required by paragraph (2) –

(a) the Tribunal may extend the time for appealing if satisfied that by reason of special circumstances it would be unjust not to do so; and

(b) unless the Tribunal extends time under sub-paragraph (a), the Tribunal must not admit the application.

…”

The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014

“ 6. - (1) An irregularity resulting from a failure to comply with any requirement in these Rules, … does not of itself render void the proceedings or any step taken in the proceedings.

(2) If a party has failed to comply with a requirement in these Rules,… the Tribunal may take such action as it considers just, which may include—

(a) waiving the requirement;

(b) requiring the failure to be remedied; or

(c) …”

“ 33 . - (1) A party seeking permission to appeal to the Upper Tribunal must make a written application to the Tribunal for permission to appeal.

(2) … an application under paragraph (1) must be sent to the Tribunal so that it is received no later than 14 days after the date on which the party making the application was sent the written reasons for the decision.

…

(6) If a person makes an application under paragraph (1) when the Tribunal has not given a written statement of reasons for its decision—

(a) the Tribunal must, if no application for a written statement of reasons has been made, treat the application for permission as such an application; and

(b) may—

(i) direct under rule 36 that the application is not to be treated as an application for permission to appeal; or

(ii) determine the application for permission to appeal.

(7) If an application for a written statement of reasons has been, or is, refused because the application was received out of time, the Tribunal must only admit the application for permission if the Tribunal considers that it is in the interests of justice to do so.” (Our emphases in paragraph (2))

“ 34 . - (1) On receiving an application for permission to appeal the Tribunal must first consider whether to review the decision in accordance with Rule 35.

(2) If the Tribunal decides not to review the decision, or reviews the decision and decides to take no action in relation to the decision, or part of it, the Tribunal must consider whether to give permission to appeal in relation to the decision or that part of it.

(3) The Tribunal must send a record of its decision to the parties as soon as practicable.

(4) If the Tribunal refuses permission to appeal it must send with the record of its decision—

(a) a statement of its reasons for such refusal; and

(b) notification of the right to make an application to the Upper Tribunal for permission to appeal and the time within which, and the manner in which, such application must be made.

…”

“(2) … an application under paragraph (1) must be provided to the Tribunal so that it is received no later than 14 days after the date on which the party making the application was provided with written reasons for the decision.”

(d) Was the application in time?

(e) The jurisdictional issue: rule 21 of the Tribunal Procedure (Upper Tribunal) Rules 2008

“ 21 . (1) …

(2) A person may apply to the Upper Tribunal for permission to appeal to the Upper Tribunal against a decision of another tribunal only if—

(a) they have made an application for permission to appeal to the tribunal which made the decision challenged; and

(b) that application has been refused or has not been admitted or has been granted only on limited grounds.

(3) An application for permission to appeal must be made in writing and received by the Upper Tribunal no later than—

…

(aa) … in an asylum case or an immigration case where the appellant is in the United Kingdom at the time that the application is made –

(i) 14 days after the date on which notice of the first First-tier Tribunal’s refusal of permission was sent to the appellant; or

…

(7) If the appellant makes an application to the Upper Tribunal for permission to appeal against the decision of another tribunal, and that other tribunal refused to admit the appellant’s application for permission to appeal because the application for permission or for a written statement of reasons was not made in time –

(a) the application to the Upper Tribunal for permission to appeal must include the reason why the application to the other tribunal for permission to appeal or for a written statement of reasons, as the case may be, was not made in time; and

(b) the Upper Tribunal must only admit the application if the Upper Tribunal considers that it is in the interests of justice for it to do so.

…”

(f) The First-tier Tribunal’s response to a late application for permission to appeal

“(6) If the person seeking permission to appeal provides the application to the Upper Tribunal later than the time required by paragraph (3), (3A), (3D) or (4) or by an extension of time under rule 5(3)(a) (Power to extend time) –

(a) the application must include a request for an extension of time and the reason why the application was not provided in time; and

(b) unless the Upper Tribunal extends time for the application under rule 5(3)(a) (power to extend time) the Upper Tribunal must refuse the application.”

“26. The leading case on the question is Ozdemir v Secretary of State for the Home Department [2003] EWCA Civ 167 . It is a permission decision of a two judge court which gave leave at the time to cite it as authority. Although the tribunal rules were different in 2003 and Ozdemir involved the predecessor tribunal to the existing First-tier and Upper Tribunals, namely the Immigration Appeal Tribunal, a point of principle was identified which has subsequently been followed by this court.

27. In Ozdemir , the appellant had been unsuccessful in the IAT. She applied to the IAT for permission to appeal to the Court of Appeal but her application was a month out of time. The then existing tribunal rules contained no provision to extend time. The IAT determined that it lacked jurisdiction to hear the permission application, and that accordingly it could neither grant nor refuse it. The question was whether or not this excluded the Court of Appeal's jurisdiction to hear the appeal given that under paragraph 23 of schedule 4 of the Immigration and Asylum Act 1999 the Court of Appeal's jurisdiction only arose once the IAT had "refused" a permission to appeal application.

28. The Secretary of State argued that the Court of Appeal's jurisdiction had not been triggered, and that the appellant's only mechanism for challenging the IAT's determination would be by judicial review. Mance LJ found this proposition "unattractive" on the basis that recourse to judicial review would weaken finality and cause extra delay. Mance LJ reasoned that paragraph 4(1)(b) of schedule 4 of the 1999 Act provided a power in the Lord Chancellor to make rules enabling a tribunal to dismiss an appeal for procedural reasons. He saw this as evidencing a Parliamentary intention that procedural failures would lead to refusal .

29. Mance LJ concluded that the IAT's determination should be read as a refusal and that the IAT's way of expressing this refusal should be read as a reflection of the fact that the IAT was refusing the application for procedural reasons. He then went on to consider the question relevant to these proceedings that is, how the Court of Appeal should approach the question of extension of time?

30. The question was answered by Mance LJ at [37] to [42] as follows:

a. If the PD to CPR 52 which sets out the special provisions relating to appeals from the IAT is construed in a similar way to the right of appeal provisions in schedule 4 of the 1999 Act, an applicant could always be in time to seek permission to appeal to the Court of Appeal however out of time the applicant had been in seeking permission to appeal from the tribunal;

b. That cannot be right. The concept of refusal in the CPR PD is not necessarily the same as in the 1999 Act. The PD refers to the tribunal rules which provide for two ways in which an application for permission to appeal may be refused: either on the merits or on the basis of lack of jurisdiction. The PD relates to the former not the latter;

c. If the special provision of the PD does not apply, the general rules relating to appeals remain which provide for a fixed time within which an application for permission to appeal must be made from the substantive decision. That time period runs not from the AIT's decision on permission to appeal but from the substantive AIT decision and unless extended it follows that the period within which an appellant must apply for permission to appeal a substantive decision to the court of appeal will have expired.

31. I will consider the point of principle that arises and the examples that this court has followed the same in due course. It is first important to note that since Ozdemir the FtT and the UT have been created. A right of appeal to this court from the UT is provided for in section 13 of the Tribunals, Courts and Enforcement Act 2007. For present purposes, all that needs to be said is that by section 13(4) permission to appeal may be given by the UT or this court on an application by a party and by section 13(5) an application to this court may only be made if permission has been refused by the UT. Accordingly, prior refusal by the UT is still the trigger for this court's consideration of a permission application.

32. As I have already remarked, the UT now has power to extend time to consider a permission application (rule 5(3)(a) of the UT Rules) but if no application is made to extend time or the UT declines to exercise that power, the UT must refuse the application (rule 44(6)(b) of the UT Rules). The procedural position is therefore that which Mance LJ was seeking to address i.e. there is no jurisdiction in the UT to do other than refuse a permission application which is out of time and for which an extension of time has not been granted.

33. The procedural provisions identified by Mance LJ are repeated in the modern rules and practice directions with modifications that are not relevant to this appeal other than the fact that the time limits have changed. The special provision for appeals from the UT to this court is to be found in CPR PD52D at paragraph 3.3. That replicates paragraph 21.7 of CPR 52PD-087 save that the time period is now 28 days rather than 14 days from the date on which the UT decision on permission is sent to the appellant. The general rule is 21 days from the substantive decision by reason of CPR 52 rule 12.2 which replicates the former CPR 52 rule 4(2)(b) save that the time limit used to be 14 days.

34. The point of principle which Mance LJ identified is that this court should enforce the time limits provided for in the tribunal rules to prevent them from being substantially undermined. To permit otherwise would enable a party to wait months or even years before making a decision to appeal an adverse immigration determination while continuing to take advantage of the delay that would be the consequence. This court should rigorously apply the tribunal rules so that permission to appeal will not be granted if an appellant has not made application for an extension of time to appeal a determination where the application is otherwise out of time.”

“40. I am persuaded that the principle in Ozdemir should be applied to the application in this case for two reasons: a) it has been treated as binding by this court since it was decided and there is neither material difference in the rules and practice directions to distinguish it nor any argument put before this court to regard it as per incuriam, and b) the legal policy underscoring the decision remains sound, namely that tribunal rules are to be complied with unless application is made for good reason and this court should enforce that principle.

41. If the principle in Ozdemir is applied, the application for permission to appeal in this case must be refused for the additional reason that no application has been made to this court to extend time and it necessarily follows that the absence of any reason to explain the delay that occurred is fatal. If my Lord agrees, I would refuse permission and dismiss the appeal. I would give permission to report and rely upon this judgment.”

“44. The next question is what is the relevance to the application for permission in this Court of the fact that the prior application to the Upper Tribunal was made out of time. I at first thought that that prior delay had to be treated as irrelevant because para. 3.3 of the Practice Direction to rule 52 provides that time for applying for permission to appeal to this Court from the UT runs from the date of notification of "the Upper Tribunal's decision on permission to appeal". However, that produces the very unsatisfactory result that the prior delay is wiped from the slate as long as the application to this Court is in time. As the Senior President points out, in Ozdemir the Court was prepared to adopt a purposive construction of the rules/practice direction governing appeals from the Immigration Appeal Tribunal, which were broadly similar in structure, in order to avoid that result. The then practice direction provided for time to run from the date of notification "of the Tribunal's decision to give or refuse permission to appeal under [the then rules]". Mance LJ held at para. 40 of his judgment that the reference to a decision "to give or refuse permission" was only to decisions on the substantive merits rather than to decisions based on non-compliance with time limits, so that the special rule did not apply. In my view it is no more difficult to apply the equivalent purposive construction to the phrase in the current practice direction, namely "the Upper Tribunal's decision on permission to appeal". It is indeed inherently unlikely that those responsible for the wording of the current Practice Direction intended to produce the very result which this Court in Ozdemir (and indeed the subsequent decisions identified by the Senior President in which it has been followed) regarded as unacceptable. The result produced by applying an Ozdemir approach to the current rules/practice direction can be summarised as follows:

(1) The special time limit for appeals from the UT in para. 3.3 of the Practice Direction does not apply where the UT has refused permission on the basis of non-compliance with time-limits rather than on the merits.

(2) Instead the ordinary time limit in (now) CPR 52.12 (2) applies.

(3) Since ex hypothesi the application to the UT was out of time the application to the CA will be even more so, but the CA can grant an extension under CPR 52.15 if satisfied that the missing of the original deadline (and any subsequent delay) was justifiable. This will involve considering the same matters as the UT will have done, if it refused an extension; but it is not, as such, an appeal from the UT's decision.

“(2) A person may apply to the Upper Tribunal for permission to appeal to the Upper Tribunal against a decision of another tribunal only if-

“103. Thus, to summarise, Ms Giovannetti’s case should be analysed as being that:

(a) as long as the old regime remained in effect, the Appellants could have triggered a right to an in-country appeal against the section 10 decision simply by making a human rights claim – relying on the Nirula work-around if the claim post-dated the notice; and

(b) once the new regime came into effect, they could and can acquire a right to an in-country appeal by making a human rights claim challenging the decision to remove them and, if and when it is refused, appealing against that refusal.

Although the position under the new regime is for that reason relevant to the issues before us, despite the initial decisions in the Appellants’ case being made under the old regime, Ms Giovannetti discouraged us from considering the position as regards a case where the initial decision was made after the coming into effect of the 2014 Act, since no such case is before us. I accept that we should not do so (save to the extent necessary in Mr Ahsan’s case).

…

115. I start from the position that, other things being equal (though that is an important qualification in this case), it is better for the issue whether a person has cheated in their TOEIC test to be determined in an appeal to the FTT rather than by way of judicial review proceedings in the UT. The FTT is, generally, the more appropriate forum for the determination of disputed issues of primary fact, and as a matter of the best use of judicial resources the UT ought not to be burdened with cases that could properly be determined in the FTT. That approach is reinforced by the consideration that Parliament specifically provided for appeals against section 10 decisions to be heard in the FTT, albeit out-of-country. (The FTT is also, though this is perhaps a neutral point, a jurisdiction where costs are not normally awarded.)

116. Of course, as already established, the direct route to the FTT by way of an old-style appeal against the section 10 decision itself would not provide an effective remedy in these cases, because it is out-of-country. The question before us is whether a different route to the FTT (in-country), via a human rights appeal, constitutes an appropriate available remedy. In my judgment, it may do, if but only if all of the following conditions are satisfied:

(A) It must be clear that on such an appeal the FTT will determine whether the appellant used deception as alleged in the section 10 notice.

(B) It must be clear that if the finding of deception is overturned the appellant will, as a matter of substance, be in no worse position than if the section 10 decision had been quashed in judicial review proceedings.

(C) The position at the date of the permission decision must be either that a human rights claim has been refused (but not certified), so that the applicant is in a position to mount an immediate human rights appeal, or that the applicant has failed to accept an offer from the Secretary of State to decide a human rights claim promptly so that a human rights appeal would become available.

If those conditions are satisfied, the UT would in my view normally be entitled to refuse permission to apply for judicial review – though it is impossible to predict the idiosyncrasies of particular cases, and I should not be regarded as laying down a hard-and-fast rule. I should say something more about each of the conditions.

117. As for (A), if in a case of this kind permission were given to apply for judicial review of the section 10 decision, the applicant would obtain a judicial determination of whether he or she did or did not cheat in their TOEIC test, since that is a matter of precedent fact on which the lawfulness of the decision depends. I regard the right to such a determination as a matter of real value because of the potentially grave other consequences of an official finding of that character, as identified at paras. 20-21 above, even where (untypically) it is not, or no longer, central to any removal decision. However, an appellant would prima facie also obtain such a determination in a human rights appeal. The tribunal would of course have to decide the deception issue for itself rather than simply review the Secretary of State’s finding on rationality grounds, and the appeal would to that extent be an appropriate alternative. But if there is any risk that the appeal will be determined on a basis which does not require such a determination, e.g. for the reasons suggested by Mr Biggs at para. 113 above, that will not be the case.

118. I should say, for the avoidance of doubt, that the reasoning in the previous paragraph does not mean that in every case where a finding of deception is made the subject of that finding is entitled to a judicial determination of the truth of the allegation. Whether it does so will depend on the legal context in which the question arises, including whether it is material to a human rights claim. That there are cases where only a rationality review is available is illustrated by Giri (see para. 43 above). Ms Giovannetti was asked by the Court whether an appellant was entitled to pursue a challenge to a deception finding in its own right, irrespective of its impact on the question of leave to remain or potential removal. She said that in principle they would be, but she submitted, relying on Giri, that such a challenge could only be on Wednesbury grounds.

119. I turn to condition (B). Mr Biggs must be right that where the FTT on a human rights appeal finds that the appellant did not cheat, that will not formally lead to the reversal of the section 10 decision: that is a different and prior decision which will not as such be the subject of the appeal. In contrast, a successful judicial review challenge would lead to the section 10 decision being quashed. But I would not regard that difference as necessarily conclusive. This is an area where we should be concerned with substance rather than form. I would regard the crucial question as being whether the fact that the section 10 decision remained formally in place – so that leave to remain was still formally “invalidated” (see section 10 (8)) – would leave an appellant worse off as a matter of substance than if the decision had been quashed. Unfortunately this aspect was not explored in the oral submissions as fully as it might have been, no doubt as a result of the late emergence of the human rights claim issue; and the guidance I can give must be rather tentative.

120. The starting-point is that it seems to me clear that if on a human rights appeal an appellant were found not to have cheated, which inevitably means that the section 10 decision had been wrong, the Secretary of State would be obliged to deal with him or her thereafter so far as possible as if that error had not been made, i.e. as if their leave to remain had not been invalidated. In a straightforward case, for example, she could and should make a fresh grant of leave to remain equivalent to that which had been invalidated. She could also, and other things being equal should, exercise any relevant future discretion, if necessary “outside the Rules”, on the basis that the appellant had in fact had leave to remain in the relevant period notwithstanding that formally that leave remained invalidated. (I accept that how to exercise such a discretion would not always be easy, since it is not always possible to reconstruct the world as it would have been; but that problem would arise even if the decision were quashed on judicial review.) If it were clear that in those ways the successful appellant could be put in substantially the same position as if the section 10 decision had been quashed, I can see no reason in principle why that should not be taken into account in deciding whether a human rights appeal would constitute an appropriate alternative remedy. To pick up a particular point relied on by Mr Biggs, I do not regard the fact that a person commits a criminal offence by remaining in the UK from (apparently) the moment of service of a section 10 notice as constituting a substantial detriment such that he is absolutely entitled to seek to have the notice quashed, at least in circumstances where there has been no prosecution. (It is also irrelevant that the appellant may have suffered collateral consequences from the section 10 decision on the basis that his or her leave has been invalidated, such as losing their job; past damage of that kind cannot alas be remedied by either kind of proceeding.)

121. So far so good, but the law in this area is very complicated and I am not confident that all its ramifications were fully explored before us. I do not feel in a position to say definitively that the Secretary of State will always be able to exercise her discretion, in the aftermath of a successful human rights appeal, so as to achieve the same substantive result as the formal quashing of the section 10 decision. There may, for example, be legislation (i.e. primary or secondary legislation rather than simply the Rules) which would result in the appellant having to be differently treated depending on whether he or she had leave to remain during a particular period. If there were any real doubt about whether in a given case a successful human rights appeal would be as effective as the formal quashing of the section 10 decision the applicant should have the benefit of that doubt and be permitted to pursue judicial review proceedings.

122. As for condition (C), I believe Mr Knafler was right to concede that if at the permission stage a human rights claim has already been made and refused, so that the claimant could appeal forthwith, then the UT would be entitled to refuse permission on the basis that an appropriate alternative remedy was available (assuming that the other two conditions are satisfied). That would lead to the crucial question being determined in what I believe to be the most appropriate forum.”

The Hon. Mr Justice Lane

President of the Upper Tribunal

Immigration and Asylum Chamber