ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
MR OCKELTON (Sitting as a Deputy Court Judge)
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE DAVIS
THE RIGHT HONOURABLE SIR STEPHEN SEDLEY
| THE QUEEN ON THE APPLICATION OF NIRULA
|- and -
|FIRST-TIER TRIBUNAL (ASYLUM AND IMMIGRATION CHAMBER) & ANR
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Ms Joanne Clement (instructed by the Treasury Solicitor) for the Interested Party
The Respondent was not represented
Hearing date: 25th October 2012
Crown Copyright ©
Lord Justice Longmore:
"has made an asylum claim, or a human rights claim, while he is in the United Kingdom."
i) whether the asylum claim or (in this case) the human rights claim has to be made before a Notice of Appeal is served or whether it is sufficient to make it in the Notice of Appeal to the First Tier Tribunal ("FTT") on appeal from the Secretary of State's decision;
ii) whether, if the claim is not so made, the FTT can raise the question of the jurisdiction of the FTT to hear the appeal of its own motion or whether it can it only decide the question if the Secretary of State (or her representative) specifically raises the point;
iii) if the Secretary of State is required to raise the point, does she sufficiently do so if in her Notice of Decision she states that the potential appellant may appeal "After removal".
i) that it is too late to raise a human rights claim for the first time in a Notice of Appeal since, in a case which would otherwise require an out of country appeal, any asylum claim or a human rights claim has to be made before a Notice of Appeal is served; the appellant must, adapting the language of section 92(1), "have made" his claim at an earlier stage;
ii) that, at any rate if the Secretary of State has indicated to a potential appellant in the decision to remove him that any appeal can only be brought once he has left the United Kingdom, the FTT can decide that it has no jurisdiction to entertain the appeal, without specifically asking the representative of the Secretary of State whether the Secretary of State wishes to take the point that no appeal will lie while the appellant is in the United Kingdom.
In so doing he questioned, in obiter remarks of his own, certain parts of the decision of this court in Anwar v SSHD  1 WLR 2552 which he considered were obiter to that decision. Sullivan LJ has now given permission to appeal to this court because the first part of the decision gives rise to a point of principle and because it is desirable for this court to decide whether what he referred to as "Sedley LJ's observations" in Anwar (to which Sullivan LJ was himself a party) were correct.
"i. The Secretary of State's decision is not in accordance with the Immigration Rules.
ii. The decision is unlawful because it is incompatible with the appellant's rights under the European Convention on Human Rights.
iii. The decision to remove the appellant from the United Kingdom is unlawful.
iv. The decision is otherwise not in accordance with the law.
v. The discretion under the Immigration Rules should have been exercised differently.
The Secretary of State has failed to consider the fact that the appellant has been in the UK for many years. He has an established family and private life in the UK. He has a wife and child in the UK. The child was born in the UK.
In the time he has been in the UK he has also built a private life here. The Secretary of State has failed to consider the appellant's lengthy stay in the UK and the significant bonds he has formed whilst in the UK.
In all the circumstances, it would be disproportionate and unlawful for the Secretary of State to remove the appellant from the UK.
The appellant and his representatives reserve the right to amend or elaborate on these grounds at a later date."
The Statutory Provisions
"(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal. (2) In this part "immigration decisions means" … [and there is a list, including]
(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971."
"(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 (i)."
A decision specified in section 82(2)(h) is thus not included:-
"(4) This section also applies to an appeal against an immigration decision if the appellant – (a) has made an asylum claim, or a human rights claim, while in the United Kingdom, or (b) is an EEA national or a member of the family of an EEA national and makes a claim to the Secretary of State that the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom."
""Human rights claim" means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or to require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 … as being incompatible with his Convention rights."
Issue (1): "has made" in section 94(2)(a)
Issue (2): jurisdiction
"19. Was the AIT right in Ms Pengeyo's and Mr Anwar's cases to hold that the respective immigration judges has acted without jurisdiction? In my judgment they had jurisdiction to embark on the hearing notwithstanding that neither applicant had left the United Kingdom, but once the point was taken by the Home Office (and assuming it to be factually correct, since they might have been absent from the hearing) it operated in bar of the proceedings. Had the point not been taken in either case, the immigration judge would have been bound to proceed with the appeal.
20. The reason for this ostensibly subtle distinction is one which matters. It is the distinction between constitutive and adjudicative jurisdiction which I sought to draw in a dissenting judgment in Carter v Ahsan (No 1)  ICR 1817, paras 16-27, which secured approval on appeal  1 AC 696. The constitutive jurisdiction of a tribunal is the power to embark upon trying specified kinds of issue. Whether a foreign national has obtained leave to enter or remain by deception is, by common consent, such as issue. Its adjudicative jurisdiction may then depend on a number of factors, such as whether the appeal has been brought within time or – as here – whether the applicant has left the United Kingdom.
21. This in turn may depend on several other things. First it must depend on whether the out-of-country rule applies at all, which is likely to be a mixed question of fact and law. Immigration Judge Callender-Smith concluded in Mr Anwar's case that it did not apply. Secondly it may depend on whether the applicant has in fact left the country: he or she may be absent from the hearing but not, or allegedly not, from the United Kingdom. This will then be a triable issue. Until such issues have been decided it is impossible to say that the tribunal cannot hear the appeal.
22. One must not, of course, lose sight of the words of section 92(1) of the 2002 Act: "A person may not appeal … while he is in the United Kingdom unless his appeal is of a kind to which this section applies" – and the section does not apply to an appeal against a deception decision under section 10(b): see section 82(2)(g). But it is not every such formula which bars the door to justice. To take only the best known example, the Limitation Act 1980, section 2, provides: "An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued." It is trite law that unless the point is taken, this provision constitutes no bar. In consequence it can be waived by agreement or by unilateral decision. Another example can be found in requirements for leave to bring proceedings: see Adorian v Commissioner of the Police of the Metropolis  1 WLR 1859.
23. Any apparently absolute bar to justice has to be scrutinised very carefully. The one contained in the 2002 Act is not of the kind which operates independently of the will of either party so as to bind the tribunal regardless. It offers a point which can be but need not be taken. In the present two cases, it was taken."
Issue (3): "After removal"
Lord Justice Davis:
Sir Stephen Sedley: