ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. IA/01819/2009]
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LORD JUSTICE PATTEN
| SA (PAKISTAN)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Charles Bourne (instructed by Treasury Sols) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Laws:
We are told by the respondent (see Mr Bourne's skeleton argument paragraph 69 to 70) that in fact directions for NB's prompt removal were given on 4 September 2008 and, when later his appeal was reconsidered on 3 June 2009, the AIT held that the discretion not to remove NB could not have been reasonably exercised in his favour. There is no permission to appeal to challenge that finding. In those circumstances, even if the other four appellants have the benefit of a good argument as regards the separation of refusal to extend leave from a decision to remove, NB does not. His case is complete. All necessary and appropriate decision making processes have been undertaken. His appeal will be dismissed.
"…given the consequences for the individual of separating the two stages, it is both unjust and irrational not to deal with them in immediate sequence."
"As the Secretary of State submits by Miss Grey of counsel, once a person's appeal against a refusal to vary his leave is dismissed, he must leave the United Kingdom. If he does not, he commits a criminal offence (Immigration Act 1971, section 24(1)(b); the 2002 Act, section 11). His entitlement to state benefit is also affected. If another employs him, that other is guilty of a crime (Asylum and Immigration Act 1996, section 8). On the AIT's view of the question, namely that the human rights issue is not justiciable on a variation of leave appeal, the unsuccessful appellant in such a case, if he has a potential article 8 claim which would so to speak come alive on his removal, surely faces a very unsatisfactory choice. Either he leaves the United Kingdom, as the criminal law says he must, or he remains until removal directions are given, anticipating that at that stage he will be able to ventilate his human rights claim before the AIT.
18. It seems to me to be wrong in principle that the price of getting before an independent tribunal, for a judicial decision on a human rights claim should be the commission of a criminal offence and other associated legal prohibitions."
"(1) Where an appeal to the Tribunal has been reconsidered, a party to the appeal may bring a further appeal on a point of law to the appropriate appellate court."
Mr Malik's submission is that, while it may be that the original appeal had to be focused specifically on the immigration decision in question, after a reconsideration an appeal to the appropriate court -- here the Court of Appeal -- may, under section 103B(1), be brought on any point of law whatever, whether or not it was raised before the AIT and whether or not it runs wider than would a mere assault on the immigration decision in question. However, I consider that the point of law being referred to in section 103B(1) must generally arise out of the decision of the AIT on the reconsideration; though it is true that that point was stretched somewhat in Bulale v SSHD  EWCA Civ 806. At all events, the language of section 103B(1) cannot be read so as to allow appeals upon matters travelling beyond the legal merits of the immigration decision originally sought to be appealed. In those circumstances there is no jurisdiction, within the four corners of these appeals as presently constituted, to entertain the TE (Eritrea) point.
Lord Justice Sedley:
Lord Justice Patten:
Order: Appeals dismissed, but dismissal not to take effect until four weeks' time