England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR OCKELTON (Sitting as a Deputy Court Judge)

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/11/2012

Lord Justice Longmore:

1. The question in this case is whether an appellant, who seeks to appeal from a decision of the Secretary of State to remove him because he was guilty of deception on entry to the United Kingdom, can appeal that decision while he is in this country, if he also has a human rights claim on the basis of an established family and/or private life in this country. If the only question were whether he was in fact guilty of deception, it is clear that the Secretary of State could remove him before his appeal is heard and, if he is still in this county, could object to any appeal being heard until he leaves. That is because section 92(1) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") so provides. But section 92(4) of that Act also provides that an appeal can be brought, while the appellant is in the United Kingdom, if the appellant

"has made an asylum claim, or a human rights claim, while he is in the United Kingdom."

2. Three questions arise:-

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".

3. Immigration Judge Bennett sitting in the FTT held that it was insufficient to take a human rights claim for the first time in the Notice of Appeal to the FFT and that it should have been made at an earlier stage and held, further, that he therefore had no jurisdiction to determine the appeal while the appellant was in this country. Mr Nirula decided to apply for judicial review of that decision rather than to appeal it. The matter therefore came before the Administrative Court. Deputy High Court Judge Timothy Brennan QC adjourned the application for permission to apply for judicial review into court for oral argument with the application to follow if permission was granted.
4. Deputy High Court Judge Mr C. M. G. Ockelton granted permission but decided

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 [2011] 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.

The Facts

5. Mr Nirula is a national of Nepal. On 13^th November 2003, he entered the United Kingdom with his wife. He had entry clearance as a work permit holder. On 16^th October 2008, he obtained indefinite leave to remain. He applied for citizenship, but that was refused because he admitted to having used multiple identities.
6. On 27^th August 2010, the claimant was arrested and detained. In interview, he admitted that he had obtained leave to enter using a different identity from his own. The Secretary of State served him with forms indicating that he was, for that reason, an illegal entrant. The second form served on him notified the claimant of the Secretary of State's decision to remove him as an illegal entrant, who had obtained entry by deception. It informed him of a right of appeal which he could exercise "After removal".
7. The claimant filed a Notice of Appeal with the FTT, the respondent to these proceedings. In the Notice of Appeal, the claimant said that he had a right under Article 8 of the European Convention on Human Rights. The grounds of appeal were as follows:-

"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.

Reasons

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."

8. The claimant remained in the United Kingdom at the time of that notice and at the time of his purported appeal. He had never previously invoked any Article of the European Convention on Human Rights to justify his presence here.
9. On 18^th November 2010, the FTT convened to consider issues raised by the appellant's Notice of Appeal. Immigration Judge Bennett immediately raised the issue of jurisdiction. Both parties were represented before him. He drew the attention of the appellant's representative to the issue, and he invited Mr Nirula to file evidence and/or submissions as to jurisdiction, adjourning for that purpose.
10. On 1^st December, Mr Nirula's representatives filed submissions. On 19^th January 2011, the FTT decided that it had no jurisdiction to hear his purported appeal, because Mr Nirula had not left the country.
11. On 14^th May 2011, the claimant was sentenced to 8 months imprisonment for gaining entry to the UK by deception. On 2^nd June 2011, the Secretary of State wrote to the claimant, offering to consider his human rights claim if it were made to the Secretary of State. Mr Nirula rejected that offer claiming that in law he was entitled to appeal while he was still in this country. It is not easy to see why he rejected this offer unless it is to prolong his indeterminate status for as long as possible

The Statutory Provisions

12. The legal provisions relevant to this claim are as follows. First, an illegal entrant is defined by section 33 of the Immigration Act 1971 to include a person who has entered the United Kingdom by deception. Paragraphs 8 to 10 of Schedule 2 to the 1971 Act provide a power to remove illegal entrants. In the present claim there is no challenge either to the jurisdiction of the Secretary of State to issue the decision that she did issue in relation to the claimant's history, or to her assessment of him as an illegal entrant.
13. Part 5 of the Nationality, Immigration and Asylum Act 2002 is headed "Immigration and Asylum Appeals". It consists of sections 81 to 117 of the Act. Section 82 provides, so far as relevant to this claim, as follows:-

"(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."

14. Section 84 provides for grounds of appeal against an immigration decision. One such ground is that the decision is contrary to the European Convention on Human Rights, and another is that the removal of the claimant in consequence of the decision would breach the United Kingdom's obligation under that Convention.
15. Section 92 is headed "Appeal from within United Kingdom: general". That section provides, so far as relevant, as follows:-

"(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."

16. Section 113 of the same Act defines a human rights claim as follows:-

""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)

17. The use of the auxiliary perfect tense in the phrase "has made … a human rights claim" strongly implies that the claim must precede any appeal and that must mean before the institution of an appeal rather that the date of hearing of the appeal. The reason why Parliament has chosen those words is, presumably, in order to give the Secretary of State the opportunity to give a decision on any human rights claim before the appeal is determined so that her decision on that question can become part of any appeal. This orderly process will be disrupted if, without any prior notification to the Secretary of State, an appellant can simply put a human rights claim in his notice of appeal.
18. This consideration is reinforced by the definition of a human rights claim in section 113 as "a claim made by a person to the Secretary of State …". A Notice of Appeal seeking to appeal a decision for removal is not addressed to the Secretary of State but to the First Tier Tribunal.
19. Mr Malik for Mr Nirula pointed out first that the definition continues "… at a place designated by the Secretary of State" and that no place has ever been designated and secondly that Rule 12 of the First Tier Tribunal rules provides for the forwarding by the Tribunal to the Secretary of State of a Notice of Appeal.
20. The absence of a designated place does not, however, deprive the rest of the definition of legal content. The claim still has to be made to the Secretary of State. The Secretary of State is not difficult to find.
21. Nor does the fact the FTT has an obligation to forward any Notice of Appeal to the Secretary of State mean that a claim has been made to the Secretary of State. Even if it could, Mr Nirula would still have to get over the timing point which he cannot do.
22. It seems that it may be the first time that this question of construction has been considered by this court, but it arose before SIJ Storey, SIJ Grubb and IJ Afako sitting in the Asylum and Immigration Tribunal in SS (Turkey) 2006 UKAIT 00077. They held that before 4^th April 2005, when an appeal was effected by service of a Notice of Appeal on the Secretary of State, it was sufficient to make a human rights claim in the Notice of Appeal (they do not appear to have had any argument in relation to the words "has made") but, once the AIT had been created and a Notice of Appeal had to be given by filing it with the Tribunal, it was no longer possible for a human rights claim to be made for the first time in a Notice of Appeal (see paras 87-90). This decision was followed by Silber J in R (Rainford) v Secretary of State [2008] EWHC 2474 (Admin). I would approve those decisions.
23. These two cases were distinguished in Jisha v SSHD [2010] EWHC 2043 (Admin) in which HH Judge Anthony Thornton QC held that the Secretary of State ought to have considered a human rights claim to be a second human rights claim to which paragraph 353 of the Immigration Rules (about fresh claims) applied. The argument was that the first human rights claim had not been made to the Secretary of State because it had been included in the Notice of Appeal to the tribunal. The judge held that the definition of a "human rights claim" in s. 113 of the 2002 Act applied to the words as used in part 5 of the 2002 Act but was not a definition for the purpose of the Immigration Rules. It seems, moreover, that the first human rights claim had been treated as a human rights claim whatever procedural defects it may have had. In these circumstances a second human rights claim did have to be dealt with as a fresh claim. It can be seen that this authority is too far removed from the present case to be helpful.
24. Mr Malik submitted that any construction of section 94(2)(a) which required an appeal against removal for deception to be pursued out of country could operate very harshly against an appellant who was compelled to return home in order to pursue his appeal. But that is not a consideration that can change the proper construction of the statute (unless it be suggested, which it is not, that the statutory provision is in some way incompatible with the European Convention of Human Rights). In any event the Secretary of State has the policy referred to in para 64 of Mr Ockelton's judgment which caters for such cases. It was no doubt in pursuance of that policy that the Secretary of State offered on 2^nd June 2011 to consider Mr Nirula's Article 8 claim if he provided the evidence on which he relied, an offer which was not accepted by Mr Nirula.
25. I would therefore uphold the decision of the Deputy Judge in this respect; it is unnecessary to decide whether his further decision (that the claim had to be made even before a notice of decision was given) is correct. That should await decision in a case where it matters.

Issue (2): jurisdiction

26. Under this head Mr Malik submitted in reliance on Anwar that the point that the Tribunal had no jurisdiction had to be expressly taken by the Secretary of State and she had not done so. It was not open to the FTT to take the point of its own motion.
27. The question that arose in Anwar was whether a tribunal could proceed to a determination in a deception case if the appellant was inside the United Kingdom. The Secretary of State had determined that the appellant had obtained leave to remain by deception; on appeal the Secretary of State objected to the tribunal hearing the appeal because the appellant was in the United Kingdom. The tribunal decided it did have jurisdiction and, moreover, that the appellant had not obtained leave by deception. The Secretary of State obtained an order for reconsideration and, on reconsideration, the AIT decided that the appeal could not be pursued while the appellant remained in the United Kingdom and there was thus no jurisdiction in the tribunal to entertain the appeal. This court then granted permission to appeal to Mr Anwar as well as to another appellant (Ms Pangeyo) who raised the same point. By the time Mr Anwar's appeal came to be heard, the Secretary of State had agreed that he had not obtained leave by deception but since the case was ready for argument, both sides were heard on the question of jurisdiction "at the court's request" (para 9).
28. Anwar is therefore a considered decision of this court, contained in a reserved judgment, on the question whether a tribunal (then the AIT, now the FTT) has jurisdiction to hear an appeal against removal in a deception case when the appellant is in the United Kingdom. Sedley LJ (with whom Lloyd and Sullivan LJJ agreed) set out the facts, the statutory provisions and the issues, explaining how the first tribunal came to consider that they did have jurisdiction. He then proceeded to decide the jurisdiction point under the heading "Jurisdiction" in the following terms:-

"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) [2005] ICR 1817, paras 16-27, which secured approval on appeal [2008] 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 [2009] 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."

29. In circumstances in which this court has requested argument on a point about jurisdiction and has expressly decided that question, its reasoning must be treated as part of the ratio of the case. Mr Ockelton thought that because the point on jurisdiction had been taken in Anwar's two cases as per paragraph 23 above, the whole of the rest of this passage was obiter with the result that, had it been relevant to his decision, he could have disagreed with it because it was wrong. This is with respect a misunderstanding of the doctrine of precedent in two quite separate ways. In the first place, judges at first instance should accept a considered judgment of this court on a question of jurisdiction as a judgment that binds them. In the second place Mr Ockelton was able to decide (in my view correctly) that the point on jurisdiction had been taken in this case. In these circumstances his own remarks about what the position would be if the point had not been taken at all (or not been taken by the right person) were themselves obiter, as he himself acknowledges in his judgment. On the basis on which Mr Ockelton proceeded (namely that the views on jurisdiction in Anwar were obiter), it is not appropriate for a first instance judge to say obiter that considered remarks of this court are wrong. One consequence is a disruption to the body of authority by which tribunals are guided. If he believes that the view of this court is wrong, a judge of first instance should give permission to appeal. If this court where it falls for decision in an appropriate case considers the view to be wrong (and obiter) it will say so and first instance tribunals will know where they are.
30. Of course any decision of this court is only authority for what it decides and for any reasoning necessary for that decision. One thing that is immediately clear from paragraphs 19-23 of the Anwar decision is that nothing is said on the question whether the tribunal is entitled to take a point on its own jurisdiction of its own motion. That is a point which remains open for decision. It is not a particularly difficult decision. In my view any tribunal is entitled (and indeed well advised) to air any doubts it has about its jurisdiction and invite submissions on that question and then decide it. Anwar does not question that proposition in any way.
31. Mr Ockelton, however, thought (para 47(b)) that it was "implicit" in Anwar that the jurisdiction point has to be taken by the party affected and it is true that in paragraph 19 of his judgment Sedley LJ says that the point would operate in bar of the proceedings "once the point was taken by the Home Office". But that did not mean that only the Home Office could take the point: it simply reflected the fact that in the two cases before the court the Home Office had in fact taken the point. In any event there is an air of unreality in the suggestion that, if the tribunal takes the point, the Home Office does not. In the first place, the Home Office may not be represented before the tribunal; in that event it would border on the absurd to say that the tribunal cannot take the point of its own motion. If the Home Office is represented (as it was in this case), the representative will naturally permit the tribunal to make the running. If the appellant fails to persuade the tribunal that it has jurisdiction, it would again border on the absurd for the tribunal to have specifically to ask the Home Office representative if he wants to object to its jurisdiction to hear the appeal and to wait for an affirmative answer. If the Home Office does not think it fair or right to take the point it can always say so (and in a case such as Anwar it may have a public law duty to say so) and the tribunal can then proceed.
32. Mr Ockelton also thought (para 47(c)) it wrong to say that a failure to consider the issue of jurisdiction can give a tribunal a jurisdiction it would not otherwise have. Anwar does not so say. What it does say is that the Secretary of State can choose not to take any jurisdictional objection if she wishes to take that course, just as a defendant can waive his entitlement to plead limitation or, more likely, choose not to plead a limitation defence. If a tribunal gives a decision without anybody considering the jurisdictional position, the decision may be precarious but as Mr Ockelton himself points out in para 53 the decision stands until set aside. It will become less precarious once the time for applying for permission to appeal has expired.
33. Mr Ockelton also pointed out (para 47(a)) that there was no consideration in Anwar of the terms of the Secretary of State's Notice of Decision. In the present case the Notice of Decision does expressly say that Mr Nirula had a right of appeal which he could exercise "After removal". Mr Ockelton considered that, if it was necessary for the Secretary of State to take the jurisdiction point, she had taken it then. For my part, I agree with that conclusion but that does not in anyway influence my decision that the jurisdiction point can be taken by the tribunal just as much as by the Secretary of State.
34. I would therefore reject Mr Malik's submission that the Secretary of State had herself to take the jurisdictional point and would hold that it was open to the FTT itself to do so. It made the correct decision on the point since it was clear that Mr Nirula was not abroad – he was actually in the room at the appeal hearing.

Issue (3): "After removal"

35. As already indicated it seems to me that in any event the Secretary of State does take the jurisdiction point if she makes it clear in her Notice of Decision (as she did in this case) that an appeal is to be brought "After removal".
36. It follows that Mr Nirula's appeal from the decision of Mr Ockelton refusing him relief by way of judicial review must be dismissed.

Discretion

37. Mr Ockelton also decided that he would have refused to make any order in his discretion because (1) the appeal to the FTT was out of time (2) Mr Nirula could have appealed rather than seek judicial review (3) the application for judicial review was itself out of time (4) the Article 8 human rights claim (as set out in para 7 above) was undetailed and without substance and (5) Mr Nirula "ignored" the Secretary of States offer of 2^nd June 2011 to consider his Article 8 claim. He concluded that the combination of these features made the claim "wholly abusive". Any decision by this court on these matters would be obiter, once we have decided to dismiss this appeal. It would not, in any event, be appropriate to consider this part of Mr Ockelton's decision in detail partly because these points were not taken in the Secretary of State's acknowledgement of service of the application for judicial review (one has the distinct feeling that she (or her advisers) wanted a judicial determination of the jurisdiction issue) and partly because Sullivan LJ gave permission to appeal so that the two matters of principle could be decided as they now have been.

Conclusion

38. I would for these reasons dismiss this appeal.

Lord Justice Davis:

39. I agree.

Sir Stephen Sedley:

40. I also agree.