ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOSES
MRS JUSTICE BARON
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|Secretary of State for the Home Department
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Miss Susan Chan, instructed by Treasury Solicitors, appeared on behalf of the Respondent.
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LORD JUSTICE MOSES:
"(1) an appeal under section 82(1) is "pending" during the period beginning when it is instituted and ending when it is finally determined, withdrawn or abandoned...
(2) an appeal under section 82(1) is not finally determined for the purposes of subsection (1)(b) while -- an application for permission as to appeal under section 11 or section 13 the Tribunal Courts and Enforcement Act 2007 could be made or is awaiting determination.
Permission to appeal under either of those sections has been granted and the appeal is awaiting determination, or an appeal has been remitted under section 12 or 14 of that Act and is awaiting determination."
"An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant leaves the United Kingdom."
"An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom (subject to subsections (4B) and (4C)). (neither of which apply in the instant appeal)."
"(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)."
"The right of appeal given by a particular provision of this part is to be read with any other provision of this part which restricts or otherwise affects that right."
"Part 3 of Schedule VI makes provision (a) with respect to the determination of appeals under this part [Part 4] and (b) for further appeals."
"For the purposes of the Immigration Acts an appeal under this Part [part 4] is to be treated as pending during the period beginning when notice of appeal is given and ending when the appeal is finally determined, withdrawn or abandoned.
(6) An appeal is not to be treated as finally determined while a further appeal may be brought.
(7) If such a further appeal is brought, the original appeal is not to be treated as finally determined until the further appeal is determined, withdrawn or abandoned."
"A pending appeal under this Part is to be treated as abandoned if the appellant leaves the United Kingdom.
(9) A pending appeal under any provision of this Part other than section 69(3) is to be treated as abandoned if the appellant is granted leave to enter or remains in the United Kingdom."
"Mr Kovats [for the Secretary of State] accepts that the legislation on the face of it distinguishes between appeals under the part of the Act, Part IV, which contains s.58 and 'further appeals'. Ms Webber draws our attention to the origin of the concept of a 'further appeal' - namely to this court or the Court of Session - in s.9(1) of the Asylum and Immigration Appeals Act 1993. Nothing in the legislation says in terms that deemed abandonment touches such appeals. The Court of Appeal has always had its own system and its own principles for dealing with appeals which are either abandoned or become moot. It is in my judgment contrary to principle, except in obedience to an unequivocal statutory requirement, to introduce a rule which arbitrarily truncates access to justice in this court [my emphasis].
MRS JUSTICE BARON: I also agree.
LORD JUSTICE MAURICE KAY: It follows that the order should say that the appeal is dismissed. I think the order should specifically say that it is being dismissed for want of jurisdiction.
MISS CHAN: I am very grateful, my Lord. The respondent would submit that the appropriate order would be no order as to costs on the basis that until leave is granted, the appellant was effectively successful in that point, that the appellant ought to have appreciated the abandonment point, which was raised at the same time as leave was given, and therefore they cancel each other out. That is why the respondent would not ask for an order for costs.
LORD JUSTICE MAURICE KAY: Mr Malik, do you agree with that?
MR MALIK: Yes, my Lord, I agree. I have an application for permission to appeal to the Supreme Court. Of course, I recognise that this court has said whether or not permission should be granted is a question left to the Supreme Court. I simply say this: this court (inaudible) not only has the jurisdiction of this courted, but inadvertently on the jurisdiction of the Supreme Court to hear further appeals. This, in my submission, is an appropriate case to grant permission.
LORD JUSTICE MAURICE KAY: We shall refuse permission, Mr Malik. Of course, you are free to pursue that elsewhere if you wish to. We make no order as to costs. Thank you both very much indeed.
Order: Appeal dismissed