ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
MR JUSTICE OUSELEY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
SIR MARK POTTER
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Ms Susan Chan (instructed by the Treasury Solicitor) for the Respondent
Hearing dates : 27 July 2011
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LORD JUSTICE PILL :
"It seems to me, however, that it is desirable that the issues raised in this case as to the applicability of section 55 of the Borders, Citizens, and Immigration Act 2009 ("the 2009 Act") and the Supreme Court's decision in ZH Tanzania . . . . to non-appealable decisions by the Secretary of State which are then considered in judicial review proceedings in the Administrative Court should be considered together with the same issues as are raised in respect of appealable decisions and have gone on appeal to the Upper Tribunal in the cases of SP (India) and EJ (Nigeria)."
Sullivan LJ added:
"It does seem to me desirable that the impact of section 55 of ZH should be considered across the board."
"(1) The Secretary of State must make arrangements for ensuring that—
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2) The functions referred to in subsection (1) are—
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer;(c) any general customs function of the Secretary of State;(d) any customs function conferred on a designated customs official.
(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1)."
Statutory guidance has been given under section 55(3).
"Both the Secretary of State and the tribunal will therefore have to address this [section 55] in their decisions."
"9. The position in AJ, where relief has been sought by way of judicial review, is different. AJ is an overstayer. On 3 January 2009 he applied for leave to remain in the United Kingdom on the basis of Article 8. The application was refused on 3 July 2009. That was a non-appealable decision because it did not include a decision to remove AJ and was not therefore an immigration decision for the purposes of section 82 of the Nationality Immigration and Asylum Act 2002. AJ's challenge to the decision is by way of judicial review, and the question arises whether the same approach to section 55 of the 2009 Act is appropriate in the context of non-appealable decisions when the challenge is by way of judicial review. A legal point, which may be of some general significance, thereby arises.
10. The court was not prepared to consider the issue at the hearing, for which one day had been allotted, for lack of time and also because the point had not been addressed in the otherwise detailed written submissions on behalf of the Secretary of State.
11. Accepting that resolution of the point is reasonably required, the court, on being presented with an agreed question and an agreed statement of facts, decided, with the consent of the parties, to consider the point on the basis of written submissions to be submitted within 14 days." [The period of 14 days was subsequently extended.]
LORD JUSTICE ETHERTON :
SIR MARK POTTER :