ON APPEAL FROM THE UPPER TRIBUNAL
(Immigration and Asylum Chamber)
Strand, London, WC2A 2LL
B e f o r e :
SIR RICHARD AIKENS
| MANORAMA PATEL AND OTHERS
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Andrew Sharland (instructed by Government Legal Department) for the Respondent
Hearing date : 22/10/2015
Crown Copyright ©
Sir Richard Aikens :
The applications before the court
Procedural history to the hearing in front of Judge Ockelton on 4 August 2014
"(a) The FTT erred in law in assuming that the Appellant's leave was validly curtailed on 2 March 2012 and that she had no in-country right of appeal against the immigration decision taken on 15 May 2012;
(b) The FTT erred in law in dismissing the appeal by following Nirula v FTT  EWHC 3336 (Admin). This is because Nirula itself is wrongly decided and should not have been followed."
"There is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First Tier Tribunal against which permission to appeal was sought are wrong in law. Specifically, it is arguable that a curtailment of leave falls within "variation of leave to enter or remain" as provided for in s 82 (2)(e) of the [2002 Act] and by reference to the absence of any express power of the Defendant to curtail leave under the Immigration Act 1971".
Hearing before Judge Ockelton on 4 August 2014
"I will grant permission on the basis that it is arguable that the, that there was no service of any decision on 2 March , no effective service, and therefore arguable that the only effective service of curtailment was on 15 May , if then….and that it is also arguable that when the notice [was] served on 15 May personally [on the Applicant] it was ineffective and also that it is arguable that the FTT should have considered the exercise of discretion arising from point two. If I put it like that you understand what I mean, that is to say that it was (a) that there was an effective notice on 15 May  which dealt with the exercise of discretion, which was a matter to be considered on the merits by the Tribunal. So that gives permission to appeal to to the Upper Tribunal".
"Judge Ockelton: Well, I hear you on that. Now, we had better also deal with time, had we not? Because the application to the Upper Tribunal contained a fiction. It said that the FTT did not refuse to admit your application because it was late. The FTT's decision says: "Having regard to the explanation and the grounds, I am not satisfied that there are special circumstances which merit an extension of time and the application is therefore not admitted. End of paragraph one.
Mr Malik: Yes, my answer would be this, that you've already given her leave, given permission to appeal.
Mr Ockelton: Yes but that was because you had not told me the facts, had you? I am perfectly prepared to go back on that ruling and, if necessary….now, why do you say that this is in time? Why was the application made saying that it was not not admitted as being out of time?"
The judgment of Judge Ockelton on 4 August 2014
"I have before me an application for permission to appeal to this Tribunal. It is an application which I had thought I had granted earlier in the hearing today, but that was before a number of difficulties became apparent. In particular, it appears, for reasons that I shall set out in a moment, that the application for permission is not competent".
"There was an application for the extension of time for the purposes of judicial review and Carr J who granted permission extended time indicating that the Section 7 of the claim form provided little specific detail as to the reason and the time line behind the delay but that there were matters in terms of the merits which she thought might justify the extension of time. However, it appears clear that although it might have been possible for her to discover, if she looked far enough back in the papers, there was no proper clear indication to her that the previous application shad been made out of time and indeed that the Upper Tribunal application, the decision on which she was asked to give permission to judicially review, was one which had in fact been made both our of time itself and not in compliance with the Rules."
"It seems to me that there is no good reason either for extending time for the application to the Upper Tribunal or for condoning the failure to deal with the consequences of the decision of the First-tier Tribunal. I am required only to admit the application if I consider that it is in the interests of justice to do so…..But in considering where the interests of justice lie, I remind myself that the appellant is seeking to challenge the curtailment of leave to be in the country for specific purposes which she never undertook; and that she is a person who has consistently, through the last three applications at least, failed to seek in time the remedies that she might have had available from the machinery of justice. It seems to me that there is no injustice at all to her in refusing, at this late stage, an application made both without compliance with the rules and itself out of time which would, if it succeeded, only enable her to argue about the merits of continuing a period of leave which she had obtained in circumstances which were not the circumstances which applied at the time the leave was granted. My decision therefore is that this application is not admitted."
Subsequent Procedural Steps
"The apparent grant of permission at an earlier point of the hearing was, as the decision as a whole shows, inappropriate. The claimant and [her] representatives had failed to tell the Tribunal (as they had failed to tell Carr J) that the application was out of time; as it was out of time permission could only be granted if time was extended, which it had not been."
"The application is to be listed for directions to be given as to whether the Court of Appeal has jurisdiction to entertain an appeal against the refusal of permission to appeal by the UTIAC from the decision of the FTT in the present case where the applicant applied out of time to the UTIAC. This will involve consideration of the matters raised in the applicant's skeleton argument. The first is whether, having granted permission, the UTIAC had jurisdiction to revisit that decision at a later stage on the ground that it had not been told that the application was out of time and, if it did not, what remedy lies. The second is whether on these facts, there is jurisdiction for the Court of Appeal to proceed by way of judicial review as contemplated by Mirza  EWCA Civ 159 and Sandeep Singh  EWCA Civ 438.
If it is decided that there is jurisdiction by either route the constitution can consider whether by grant of permission to appeal/apply for judicial review and, if there is time, deal with the substantive points. Alternatively the substantive points can be considered at a later hearing."
The relevant provisions of the Nationality, Immigration and Asylum Act 2002, the Tribunals, Courts and Enforcement Act 2007, the Tribunal, Procedure (Upper Tribunal) Rules 2008 and CPR Pt 54.7A.
"82 Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal [to the Tribunal].
(2) In this Part "immigration decision" means –
(a) refusal of leave to enter the United Kingdom,
(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,
(4) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.
92 Appeal from within United Kingdom: general
(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.
(2) This section applies to an appeal against an immigration decision of a kind specified in [section 82(2)(c), (d), (e), (f), (ha) and (j)].
"10 Review of decision of Upper Tribunal
(1) The Upper Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 13(1) (but see subsection (7)).
(2) The Upper Tribunal's power under subsection (1) in relation to a decision is exercisable–
(a) of its own initiative, or
(b) on application by a person who for the purposes of section 13(2) has a right of appeal in respect of the decision.
(3) Tribunal Procedure Rules may–
(a) provide that the Upper Tribunal may not under subsection (1) review (whether of its own initiative or on application under subsection (2)(b)) a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules;
(b) provide that the Upper Tribunal's power under subsection (1) to review a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules is exercisable only of the tribunal's own initiative;
(c) provide that an application under subsection (2)(b) that is of a description specified for the purposes of this paragraph in Tribunal Procedure Rules may be made only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules;
(d) provide, in relation to a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules, that the Upper Tribunal's power under subsection (1) to review the decision of its own initiative is exercisable only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules.
(4) Where the Upper Tribunal has under subsection (1) reviewed a decision, the Upper Tribunal may in the light of the review do any of the following–
(a) correct accidental errors in the decision or in a record of the decision;
(b) amend reasons given for the decision;
(c) set the decision aside.
(5) Where under subsection (4)(c) the Upper Tribunal sets a decision aside, the Upper Tribunal must re-decide the matter concerned.
(6) Where the Upper Tribunal is acting under subsection (5), it may make such findings of fact as it considers appropriate.
(7) This section has effect as if a decision under subsection (4)(c) to set aside an earlier decision were not an excluded decision for the purposes of section 13(1), but the Upper Tribunal's only power in the light of a review under subsection (1) of a decision under subsection (4)(c) is the power under subsection (4)(a).
(8) A decision of the Upper Tribunal may not be reviewed under subsection (1) more than once, and once the Upper Tribunal has decided that an earlier decision should not be reviewed under subsection (1) it may not then decide to review that earlier decision under that subsection.
(9) Where under this section a decision is set aside and the matter concerned is then re-decided, the decision set aside and the decision made in re-deciding the matter are for the purposes of subsection (8) to be taken to be different decisions.
11 Right to appeal to Upper Tribunal
(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.
(2) Any party to a case has a right of appeal, subject to subsection (8).
(3) That right may be exercised only with permission (or, in Northern Ireland, leave).
(4) Permission (or leave) may be given by–
(a) the First-tier Tribunal, or
(b) the Upper Tribunal,
on an application by the party.
13 Right to appeal to Court of Appeal etc.
(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision.
(2) Any party to a case has a right of appeal, subject to subsection (14).
(3) That right may be exercised only with permission (or, in Northern Ireland, leave).
(4) Permission (or leave) may be given by–
(a) the Upper Tribunal, or
(b) the relevant appellate court,
on an application by the party.
(5) An application may be made under subsection (4) to the relevant appellate court only if permission (or leave) has been refused by the Upper Tribunal.
(6) The Lord Chancellor may, as respects an application under subsection (4) that falls within subsection (7) and for which the relevant appellate court is the Court of Appeal in England and Wales or the Court of Appeal in Northern Ireland, by order make provision for permission (or leave) not to be granted on the application unless the Upper Tribunal or (as the case may be) the relevant appellate court considers–
(a) that the proposed appeal would raise some important point of principle or practice, or
(b) that there is some other compelling reason for the relevant appellate court to hear the appeal.
[(6A) Rules of court may make provision for permission not to be granted on an application under subsection (4) to the Court that falls within subsection (7) unless the court considers–
(a) that the proposed appeal would raise some important point of principle [or practice], or
(b) that there is some other compelling reason for the court to hear the appeal.]
(7) An application falls within this subsection if the application is for permission (or leave) to appeal from any decision of the Upper Tribunal on an appeal under section 11.
(8) For the purposes of subsection (1), an "excluded decision" is–
(c) any decision of the Upper Tribunal on an application under section 11(4)(b) (application for permission or leave to appeal),
(15) Rules of court may make provision as to the time within which an application under subsection (4) to the relevant appellate court must be made."
"Application to the Upper Tribunal for permission to appeal
21 (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–
(a) in the case of an application under section 4 of the Safeguarding Vulnerable Groups Act 2006, 3 months after the date on which written notice of the decision being challenged was sent to the appellant;
(b) otherwise, a month after the date on which the tribunal that made the decision under challenge sent notice of its refusal of permission to appeal, or refusal to admit the application for permission to appeal, to the appellant.
(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.
Decision in relation to permission to appeal
22 (1) [Subject to rule 40A, if] the Upper Tribunal refuses permission to appeal [or refuses to admit a late application for permission], it must send written notice of the refusal and of the reasons for the refusal to the appellant.
(2) If the Upper Tribunal gives permission to appeal–
(a) the Upper Tribunal must send written notice of the permission, and of the reasons for any limitations or conditions on such permission, to each party;
(b) subject to any direction by the Upper Tribunal, the application for permission to appeal stands as the notice of appeal and the Upper Tribunal must send to each respondent a copy of the application for permission to appeal and any documents provided with it by the appellant; and
(c) the Upper Tribunal may, with the consent of the appellant and each
respondent, determine the appeal without obtaining any further response.
40 (1) The Upper Tribunal may give a decision orally at a hearing.
(2) [Except where rule 40A (special procedure for providing notice of a decision relating to an asylum case) applies, the] Upper Tribunal must provide to each party as soon as reasonably practicable after making [a decision (other than a decision under Part 7) which finally disposes of all issues in the proceedings or of a preliminary issue dealt with following a direction under rule 5(3)(e)]–
(a) a decision notice stating the [Upper] Tribunal's decision; and
(b) notification of any rights of review or appeal against the
decision and the time and manner in which such rights of review or appeal may be exercised.
(4) The [Upper] Tribunal may provide written reasons for any decision to which paragraph (2) does not apply.
The arguments of the parties
Issues for decision
i) What is the nature of the first ruling of Judge Ockelton. Does it constitute an "excluded decision" for the purposes of section 10(1) of the 2007 Act?
ii) If so, what is the nature of the second ruling of Judge Ockelton?
iii) In what jurisdiction (if any) can that second ruling be challenged: (a) in the Court of Appeal, or (b) by this Court sitting as a Divisional Court, considering a judicial review? If the latter, is it by way of "general" judicial review or by way of Cart JR?
iv) If a challenge to the second ruling of Judge Ockelton can be made by judicial review (of whatever type) should the court grant relief in the circumstances of this case? If so, what form of relief is to be given.
Issue one: was the first ruling of Judge Ockelton an "excluded decision" for the purposes of section 10(1) of the 2007 Act?
Issue two: What is the nature of the second ruling of Judge Ockelton?
Issue three: In what jurisdiction (if any) can that second ruling be challenged: (a) in the Court of Appeal, or (b) by way of judicial review? If the latter, is it by way of "general" judicial review or by way of Cart JR?
Issue four: if a challenge to the second ruling of Judge Ockelton can be made by judicial review (of whatever type), should the court grant relief in the circumstances of this case?
"Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant (a) leave for the making of an application or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration".
Summary of conclusions and Disposal
Lord Justice Lewison