The Secretary of State for the Home Department v Samuel Oludare Oluyemi Yerokun

The principal issue in this case is whether the respondent, whom I shall call “the claimant” has a right of appeal. If he does not, neither this Tribunal nor the First-tier Tribunal has juris diction to deal with his challenge to the Secretary of State’s decision.

The claimant is a national of Nigeria. He first came to the United Kingdom as a visitor in 2004. He has had a number of subsequent periods of leave. He has made a number of applications for leave to remain on a variety of human rights grounds connected with his family. His most recent application was in November 2017 and was an application for leave to remain on human rights grounds.

The Secretary of State’s decision is in the form of a notice dated 27 July 2018. It states as follows:

A letter of the same date gave the Secretary of State’s reasons for both elements of that decision. The notice indicated that there was no right of appeal against the decision. The claimant nevertheless put in a notice of appeal. In the First-tier Tribunal , Judge Buchanan decided at a hearing on 21 November 2018 that there was a right of appeal. Following a further hearing on 24 April, he issued on 11 June 2019 a decision allowing the claimant’s appeal “in respect of the decision made by the respondent”. The exact impact of Judge Buchanan’s decision is not absolutely clear, but it does appea r , particularly from paragraphs [66]-[67] where he expresses his conclusions on proportionality, that he considered he was dealing with a refusal of leave to remain, amounting to a disproportionate interference with the claimant’s private life.

The Secretary of State now appeals, with permission, to this Tribunal on a number of grounds including that relating to jurisdiction.

The rights of appeal against an immigration decision are found in s 82 of the Nationality, Immigration and Asylum Act 2002 (as amended):

The other subsections are not material to this case. By s 84(2), an appeal against the refusal of a human rights claim must be brought on the ground that the decision is unlawful under s 6 of the Human Rights Act 1998. Section 113(1) defi n es, for the purposes of these provisions, a “human rights claim”. That phrase :

Paragraph (b) is not in issue here. Nor is it in issue that by making his application for leave to remain in the way he did, the claimant made a “human rights claim” : so much is accepted by the Secretary of State.

Clearly, in order to have a right of appeal under this head, the human rights claim must have been the subject of a decision to refuse it. Precisely what that means has been the subject of a number of decisions of this Tribunal and of the C ourts. In putting the claimant’s case Mr Winter knew that he was in some difficulties given the decision in MY [2020] UKUT 00089 (IAC), a decision of a Presidential panel, and R (Mujahid) v First-tier Tribunal and SSHD [2020] UKUT 00085 (IAC), a decision of the President. The latter, decided on facts very similar to those in the present case, points clearly to a decision against the existence of a right of appeal. The headnote reads as follows:

I see no good reason to depart from that decision. Indeed, there are two points not mentioned there which to my mind reinforce it. The first is the effect of s 104(4A):

Subsection (4B) does not apply to appeals on human rights grounds. The effect of this is that if a person’s human rights claim is refused, and he appeals, the grant of a period of leave, however short, brings his appeal to an end. It is inconceivable that there was intended to be a right of appeal where the same grant was made before the appeal could be launched. The reason why the grant of leave causes the appeal to be abandoned is that the grant removes for the moment the argument that the Secretary of State proposes to interfere with the claimant’s rights by removing him, which is the sole basis upon which the appeal could have been pursued, given the wor ds of s 113 and s 84.

The second point is a little more tentative, but none the less in my judgment real. It seems to me that there is an inherent difference between an application and a claim. A claim’s success depends on circumstances and their assessment; an application’s success depends on the exercise of some executive power. Some applications may include claims, and the converse may also be true , but it does not follow even in such cases that the refusal of one implies or entails the refusal of the other. A person who makes an application by reference to a claim seeks some particular benefit arising from the circumstances of his case. The decision-maker may recognise the circumstances but be disinclined to grant the particular benefit sought. There is nothing contradictory, therefore, in refusing the application while recognising (and so not refusing) the claim. The statute provides a right of appeal against refusal s of claims – as it happens, claims based on the United Kingdom’s international obligation s – but it says nothing about a right of appeal against the refusal of an application which by the nature of this area of law, is likely to be a matter governed by the Immigration Rules and other domestic law.

It may have been the failure to recognise the distinction between a claim and an application that led Judge Buchanan into error. In his first decision, at [13], he wrote as follows:

The judge gives no reason for his elision of the concepts of application and claim in this way. His bold statement at the end of that paragraph led him directly to the conclusion that the claimant who, as a result of his dealings with the Secretary of State, had had the threat of removal from the United Kingdom lifted by a grant of leave, was a person whose claim that to remove him would be unlawful under s 6 of the Human Rights Act 1998 had been refused. That in my judgment cannot be right.

For the reasons given above, the decision against which the claimant sought to appeal was not a decision within s 82(1) of the 2002 Act and ca rried no right of appeal. The First-tier Tribunal had no jurisdiction. For the avoidance of doubt, that also means that all the views, assessments and judgments expressed by Judge Buchanan about the evidence before him are of no effect and should not be the subject of any reference hereafter. So far as these proceedings are concerned, I find that Judge Buchanan erred in law in considering that he had jurisdiction. I set aside his decision. I substitute a decision dismissing the purported appeal for want of jurisdiction.