ON APPEAL FROM THE HIGH COURT OF JUSTICE
Hooper LJ and Parker J
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE RICHARDS
| The Queen (on the application of
(1) Evgenyi Aleksandrovich Chichvarkin
(2) Antonina Aleksandrovna Chichvarkina)
|- and -
|Secretary of State for the Home Department
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Tim Eicke (instructed by The Treasury Solicitor) for the Respondent
Hearing date : 2 December 2010
Crown Copyright ©
Lord Justice Richards :
"15(B) For the avoidance of doubt, all the appellants also appeal on the following grounds (applicable if and when it is finally determined that the in-country variation applications were lawfully and rightly rejected):
- removal to Russia from the UK as a result of the decision would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellants' human rights; and
- such removal would breach the United Kingdom's obligations under the Refugee Convention."
"42. Removal to the Russian Federation, would also breach the appellants' human rights. The way in which such breaches arise are set out in the supporting evidence on which the appellants rely. As indicated above, SSHD says nothing at all in rebuttal of anything contained therein and is to be taken to have accepted the risks asserted ….
43. Further, for similar factual reasons in respect of the human rights allegation (including the risk of abusive politically motivated prosecution), removal to Russia would breach the Refugee Convention."
The statement in para 42 that the Secretary of State must be taken to have accepted the risks asserted was plainly misconceived and Mr Laurens Fransman QC, for the appellants, did not seek to defend it.
"The Secretary of State has decided to withdrawn [sic] the decision of 21 August 2009 to refuse leave to remain in the United Kingdom to your above clients for reconsideration."
That decision is the subject of the application for judicial review.
"The Secretary of State decided to withdraw his decision of 21st August last refusing your client's application for leave to remain as an investor in order to be able to consider the new matters raised by your clients in their grounds of appeal, specifically the claim that requiring them to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 and contrary to the UK's obligations under the 1951 Refugee Convention.
It is the Secretary of State's position that claims for leave to remain in the UK on that basis should be considered by his officials in the first instance, with a statutory right of appeal in the event that the application is refused. He does not accept that such first instance consideration by UK Border Agency officials in any way prejudices your clients, neither does he accept that his decision deprives clients of any appeal rights that may arise."
"An appeal shall be treated as withdrawn if the respondent notifies the Tribunal that the decision (or, where the appeal relates to more than one decision, all of the decisions) to which the appeal relates has been withdrawn."
"… at present the Secretary of State is in the process of reconsidering your client's application and is taking into account the considerable representations you have submitted regarding your client's husband's situation in relation to the exercising discretion in reaching a decision …."
"Deciding whether a decision needs to be withdrawn for reconsideration or can be considered in the context of the appeal (without the assistance from the specialist case work unit) will always be a highly fact sensitive exercise. However the introduction of a wholly different application at the point of an appeal against an unrelated application will very likely result in the withdrawal of the initial immigration decision. That said, whenever an immigration decision is withdrawn, this is done with the clear intention to re-take the decision in light of the up to date position or understanding, which in all cases may result in the applicant having their application or claim granted. If, after reconsideration, it is decided to maintain the earlier decision (for different or additional reasons), a new immigration decision will be made that will generate a fresh right of appeal to the Tribunal …."
Whilst a new decision on a withdrawn case is sometimes taken by the Home Office Presenting Officer, Mr Smith said that where the case is complex, raises unique or broad-reaching issues, is high profile or contains a large amount of material, it is much more likely to be referred to a dedicated case working unit with expertise in dealing with such matters.
(1) The statutory scheme governing the one-stop procedure requires the tribunal to determine all grounds of appeal raised before it, including asylum and human rights grounds and explicitly including those raised after an appeal has commenced. By his decision of 26 February 2010 to withdraw the decision under appeal so that he, rather than the tribunal, would be the primary decision-maker on the asylum and human rights grounds raised by Mr C, the Secretary of State acted inconsistently with the statutory scheme and in a manner calculated to frustrate rather than to promote the policy and purposes of the legislation. (Ground 1)
(2) The Secretary of State's approach was premised on a misdirection relating to s.3C of the Immigration Act 1971 as amended, in that s.3C(4) prevented an application by Mr C for variation of his leave on asylum or human rights grounds during the currency of the appeal against the original decision refusing to vary leave, so that the Secretary of State's insistence in January-February 2010 that Mr C make an asylum claim at the ASU, and the withdrawal of the original decision in lieu of Mr C making such an application, were premised on a course that was not open in law. (Ground 2)
(3) There was an illogicality in the Secretary of State's approach, in that at the time of the withdrawal decision the only application that had been made related to the variation of leave from visitor to "investor" status, an application which had been refused in principle because the appellants and their children did not possess the requisite entry clearance; so that there was no rational basis for withdrawal of the original decision in order to consider evidence relevant only to an asylum or human rights claim. (Ground 4)
(4) The Secretary of State's decision to withdraw the original decision was taken in disregard of the prejudice caused to the appellants, who have maintained the importance of having the asylum matter dealt with expeditiously and in advance of the extradition proceedings, in particular because of the risk to those in Russia if the appellants were to deploy their full case in the extradition proceedings (to which the Russian Government is a party) rather than within the asylum proceedings where it can be advanced confidentially. (Ground 3)
(5) The withdrawal decision was taken in order to invoke rule 17(2) and to cause the tribunal to treat the appeal as withdrawn, but rule 17(2) is itself ultra vires and the withdrawal decision was itself vitiated by that invalidity. (Ground 5)
Ground 1: the one-stop procedure
"27. Section 120 of the Act [the Nationality, Immigration and Asylum Act 2002] simplifies the so-called one-stop procedure previously contained in the Immigration and Asylum Act 1999 (sections 74-77). The section applies to every person who has made an application to enter or remain in the UK or in respect of whom any immigration decision within the meaning of section 82 of the Act (that is an appealable immigration decision) has been taken or may be taken. The SSHD or immigration officer may by notice in writing require that person to state any other reasons or grounds upon the basis of which he wishes, or believes he should be permitted, to enter or remain or not be removed from or required to leave the UK. Then, on an appeal under section 82(1) of the Act, the Tribunal shall treat the appeal as being against any and all appealable decisions against which the appellant has a right of appeal under that provision (see section 85(1), as amended by the Asylum and Immigration (Treatment of Claimants etc) Act 2004, section 26(7), Schedule 2, from 4 April 2005). The Tribunal shall deal, on the one appeal, with all permissible grounds (see section 84(1)) raised by the Appellant either initially as the basis of the original application or in his statement of additional grounds made in accordance with section 120. Such a statement can be made either before or after the appeal was commenced.
28. The concept of an 'additional ground' has a wide ambit. It is open to an appellant to contend that an immigration decision is not in accordance with immigration rules relating to a category under those rules raised by the appellant in a one-stop notice but not in the original application that has been refused by the SSHD: AS (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 1076,  2 All ER 21. In the context of the present claim it is notable that in AS (Afghanistan) it was not controversial that asylum and human rights grounds can be raised in a one-stop notice (at , by Arden LJ, who dissented from the wider approach of the majority on the specific and different issue in the appeal)."
"… Of course, the Secretary of State is normally the primary decision-maker in immigration matters, but in practice the tribunal makes many decisions which are indistinguishable from those made by the Secretary of State and is quite capable of carrying out that function …. Ultimately, however, the question must be whether the 2002 Act was intended to impose on the tribunal a responsibility of that kind in relation to matters raised in response to a notice under s.120. There is no deeply entrenched presumption that such matters are the exclusive responsibility of the Secretary of State and therefore no strong presumption that that is not what Parliament can have intended. It must be borne in mind that the service of a notice under s.120 is in the discretion of the Secretary of State. He is not obliged to take that step and will presumably do so only if he is content that the tribunal should consider any matters put forward in response to it. In any event, the language of the statutory provisions is in my view quite clear" (para 84).
"104. Adopting the wider interpretation would result in the AIT having to take on the role of primary decision-maker in an increased number of cases. There is no material before the court which would indicate what the extent of that increase might be, but in any event I do not consider that the prospect of some increase is a significant argument in favour of adopting the narrower interpretation. It is common ground that s.85(2) requires the AIT to consider additional asylum and human rights grounds if they are raised by an appellant in response to a 'one-stop' notice. The issues raised by such grounds … tend to be much more open-textured than the issues raised by appellants under the rules.
107. If there is a concern that the AIT would be overburdened by an increased role as primary decision-maker, the remedy lies in the hands of the Secretary of State: having chosen to require the appellant to state any additional grounds the Secretary of State should make the necessary administrative and procedural arrangements to enable him to make a decision or decisions on them …."
Ground 2: section 3C of the 1971 Act
Ground 4: illogicality
Ground 3: prejudice
"Last but by no means least, this is a case in which justice delayed would be justice denied. There are parallel extradition proceedings afoot in which some of the relevant evidence that is to be adduced before the Tribunal, cannot be adduced before the extradition court because of the Art 2 and 3 ECHR risks that it would generate in respect, particularly, of persons in Russia. Plainly, if the asylum/human rights grounds are successful before the Tribunal, then such will obviate the need for any extradition hearing. However, if extradition proceeds, the appellants would be in a position of having to deploy a case that is less, in evidential terms, than that that is available for them to pursue before the Tribunal. The appellants would therefore resist any unnecessary delay in disposing of this matter before the Tribunal and argue that it is appropriate for the Tribunal to deal with the matter as expeditiously as possible."
A letter of 9 February 2010 from the appellants' solicitors to the Asylum Casework Directorate, responding to the Directorate's letter of 4 February asking for all the evidence that Mr C wished to submit, emphasised the appellants' concern to have the matter dealt with as expeditiously as possible.
(1) The extradition proceedings fall under Part 2 of the Extradition Act 2003. Section 121 provides that a person cannot be extradited before an asylum claim is finally determined; and, as was stated by Keene LJ in District Court in Ostroleka, Second Criminal Division v Dytlow  EWHC 1009 (Admin), para 11, in relation to the equivalent provision in Part 1, it is clearly implicit that if the asylum claim is eventually granted the refugee cannot be extradited. The extradition court has no jurisdiction to determine the asylum claim. An adjournment of the extradition proceedings to enable the asylum claim to be determined by the Secretary of State or the tribunal would be in the discretion of the judge, but the fact that the claim was being actively considered by the Secretary of State or the tribunal would in my view be a strong factor in favour of an adjournment. Although Dytlow concerned the different situation of an extradition request in circumstances where the requested person had previously been granted asylum but it was now sought to have his refugee status revoked, Keene LJ made a similar point when he said at para 26 that "[i]f the Secretary of State had indicated that she wished to reconsider the respondents' refugee status, that could have provided such a basis for an adjournment".
(2) The human rights claim, viewed by itself, is more problematic. The extradition court must decide whether extradition would be compatible with the requested person's Convention rights (see s.87 of the 2003 Act as regards cases under Part 2). We were not addressed on the status, in the extradition proceedings, of findings by the Secretary of State or the tribunal in respect of a separate human rights claim, but I can see that difficult questions might arise in that respect. It may be that the extradition court would take the view that it must press ahead and make findings of its own. Nevertheless, the fact that, for reasons of confidentiality and risk to third parties, the requested person was unable to advance his case as fully and effectively before the extradition court as before the Secretary of State or the tribunal might still be thought to justify an adjournment of the extradition proceedings pending a decision by the Secretary of State or the tribunal.
(3) The reality is that in a case of this kind the asylum and human rights claims are closely linked and are likely to be considered together; and I would expect the cumulative effect of the considerations in (1) and (2) above to weigh heavily in favour of an adjournment of the extradition proceedings so as to enable the appellants' full case to be advanced before, and a decision to be made by, the Secretary of State and, if necessary, the tribunal.
Ground 5: the validity of rule 17(2)
"53. As a final matter, the Claimants challenged the validity of Rule 17(2). However, that challenge rested upon the contention that 'the decision was taken pursuant to a secondary provision (Rule 17) that is ultra vires the enabling provisions of the 2002 Act'. At the hearing Mr Fransman accepted that the power to withdraw was not derived from Rule 17: the power to withdraw arises as a matter of general public law, for the decision maker has the implied power, subject to general principles of public law, to withdraw any decision taken under statute or prerogative, unless such power is excluded. The basis of this ground of challenge has, therefore, fallen away.
54. In any event, what is challenged in these proceedings is the decision of the SSHD, not the decision of the Tribunal. If Rule 17(2) were invalid, the decision of the Tribunal giving effect to it could not stand. However, the Tribunal is not a party to these proceedings, that decision is not challenged, and the issue simply does not arise.
55. For the avoidance of doubt we should add that we were not impressed by the substantive arguments regarding the validity of Rule 17(2). Under section 106 of the Act (before amendment), the Lord Chancellor had the widest power to frame procedural rules for the Tribunal. Rule 17(2) does no more than reflect, within an appeal system, the current and sensible practice in respect of withdrawal of decisions in the context of judicial review, as set out earlier in this judgment. The 'withdrawal' of an appeal under Rule 17(2) is distinct from the deemed 'abandonment' of an appeal which follows the grant of leave to enter or remain in the UK pursuant to section 104(4A) of the Act and Rule 18 of the Procedure Rules."
Lord Justice Longmore :
Lord Justice Mummery :