ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE STANLEY BURNTON
LORD JUSTICE LEWISON
| RABINDRA JUNG LAMICHHANE
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Jonathan Swift QC and Joanne Clement (instructed by the Treasury Solicitors) for the Respondent
Hearing dates: 14th and 15th February 2012
Crown Copyright ©
Lord Justice Stanley Burnton :
"If your notice of decision requires you to make a Statement of additional grounds, you should make the statement in this box. This section refers to any other reasons why you think:
- You should be allowed to stay in the United Kingdom, including any reasons relating to the European Convention on Human Rights
- You should not be removed or required to leave.
"Based on [section 120] and the case of AS (Afghanistan)  EWCA Civ 1079, the AIT (sic) has jurisdiction to consider any/all matters raised by an Appellant in his s.120 statement including the request for him to be allowed to stay in the Country in another capacity under the Immigration Rules.
In the event the Secretary of State or the Immigration Judge is not satisfied he should be allowed to remain in the UK on the basis of his length of residence in the UK, the Appellant makes a formal request to the Secretary of State to remain in the UK as a student under Tier 4 of the Points Based System."
"13. Section 120 of the 2002 Act leaves it up to the Secretary of State whether or not she wishes a person who has received a negative immigration decision to make a statement of Additional Grounds. If an appellant has not been required to do so, it is not open to him to put before the Tribunal for determination matters which are not the subject of the immigration decision under appeal (save, no doubt, for any asylum or human rights claim). Any statement raising such matters is simply not 'a statement under section 120' for the purposes of section 85(2) and (3) of the 2002 Act, regardless of whether it calls itself a 'Statement of Additional Grounds'.
14. The Tribunal, to put it in a nutshell, has no jurisdiction to consider under section 85(2) of the 2002 Act a matter purportedly raised in a statement made under section 120, if that statement was not in fact made under section 120. A statement will only be made under section 120 if the Secretary of State in a written notice has required the appellant to make it. The appellant cannot, by calling a statement 'a statement of additional grounds', compel the Tribunal to consider matters raised in that statement, if there has been no 'one-stop warning' or anything else constituting a requirement by the Secretary of State to make such a statement.
15. In the instant case, the First-tier judge was mistaken in thinking that she had jurisdiction to entertain a Tier 4 application, and I too have no such jurisdiction."
The Senior Immigration Judge therefore dismissed the appeal.
The statutory framework
"82 Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.
(2) In this Part "immigration decision" means—
(a) refusal of leave to enter the United Kingdom,
(b) refusal of entry clearance,
(c) refusal of a certificate of entitlement under section 10 of this Act,
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,
(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,
(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,
(g) a decision that a person is to be removed from the United Kingdom by way of directions under [section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c. 33)] 2 (removal of person unlawfully in United Kingdom),
(4) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part."
In this judgment I shall use "immigration decision" as having this statutory meaning.
"120 Requirement to state additional grounds for application
(1) This section applies to a person if–
(a) he has made an application to enter or remain in the United Kingdom, or
(b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him.
(2) The Secretary of State or an immigration officer may by notice in writing require the person to state–
(a) his reasons for wishing to enter or remain in the United Kingdom,
(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and
(c) any grounds on which he should not be removed from or required to leave the United Kingdom.
(3) A statement under subsection (2) need not repeat reasons or grounds set out in–
(a) the application mentioned in subsection (1)(a), or
(b) an application to which the immigration decision mentioned in subsection (1)(b) relates."
"85 Matters to be considered
(1) An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).
(2) If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.
(3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.
(4) On an appeal under section 82(1), 83(2) or 83A(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision."
"96 Earlier right of appeal
(1) An appeal under section 82(1) against an immigration decision ('the new decision') in respect of a person may not be brought or continued if the Secretary of State or an immigration officer certifies–
(a) that the person was notified of a right to appeal under that section against another immigration decision (whether or not an appeal was brought and whether or not any appeal brought has been determined),
(b) that in the opinion of the Secretary of State or the immigration officer the new decision responds to a claim or application which the person made in order to delay his removal from the United Kingdom or the removal of a member of his family, and
(c) that in the opinion of the Secretary of State or the immigration officer the person had no other legitimate purpose for making the claim or application.
(2) An appeal under section 82(1) against an immigration decision in respect of a person may not be brought or continued if the Secretary of State or an immigration officer certifies that the immigration decision relates to an application or claim which relies on a ground which the person–
(a) raised on an appeal under that section against another immigration decision,
(b) should have included in a statement which he was required to make under section 120 in relation to another immigration decision or application, or
(c) would have been permitted or required to raise on an appeal against another immigration decision in respect of which he chose not to exercise a right of appeal.
"(1) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies–
(a) that the person was notified of a right of appeal under that section against another immigration decision ("the old decision") (whether or not an appeal was brought and whether or not any appeal brought has been determined),
(b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and
(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision.
(2) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies–
(a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,
(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and
(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice."
"86 Determination of appeal
(1) This section applies on an appeal under section 82(1), 83 or 83A.
(2) The Tribunal must determine—
(a) any matter raised as a ground of appeal (whether or not by virtue of section 85(1)), and
(b) any matter which section 85 requires it to consider.
(3) The Tribunal must allow the appeal in so far as it thinks that—
(a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or
(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.
(5) In so far as subsection (3) does not apply, the Tribunal shall dismiss the appeal.
"3C Continuation of leave pending variation decision
(1) This section applies if—
(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.
(2) The leave is extended by virtue of this section during any period when—
(a) the application for variation is neither decided nor withdrawn,
(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought [, while the appellant is in the United Kingdom] 2 against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or
(c) an appeal under that section against that decision [, brought while the appellant is in the United Kingdom,] 3 is pending (within the meaning of section 104 of that Act).
(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.
(5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).
The contentions of the parties
i) Notwithstanding the apparently permissive wording of section 120, the Secretary of State is under a duty to serve a section 120 notice on a claimant when making an immigration decision or within a reasonable time thereafter.
ii) Failure by the Secretary of State to serve a section 120 notice renders her immigration decision unlawful, and therefore "not in accordance with the law" within the meaning of sections 84 and 86.
iii) In any event, even if no section 120 notice is served, the Tribunal is entitled and bound to consider any additional grounds put forward by an appellant in support of his appeal, even if they have not previously been put to the Secretary of State and have not been the subject of a decision by her.
iv) Even if the above contentions are not well-founded, in a case such as the present where no section 120 notice has been served, if on the hearing of an appeal the Secretary of State does not object to the appellant's relying on additional grounds, the Tribunal is entitled and bound to consider them and to determine the appeal in his favour if they are well founded.
v) It follows that the Upper Tribunal should not have decided the appellant's appeal without hearing from him on the section 120 issue, and in any event should have allowed his appeal requiring the Secretary of State to grant him leave to remain as a Tier 4 student.
i) Section 120 confers a power and a discretion on the Secretary of State, but not a duty.
ii) It follows that a failure to serve a section 120 notice cannot affect the lawfulness of an immigration decision.
iii) It follows from section 85(2) of the 2002 Act that if no section 120 notice has been served the Tribunal cannot consider any matter that might give rise to a right to variation of his leave to enter or to remain in the UK under a provision of the Immigration Rules other than that which was the subject of the immigration decision under appeal.
iv) Section 85 relates to the jurisdiction of the Tribunal, which is statutory, and a failure of the Secretary of State to object to the Tribunal considering a matter of the kind referred to in (3) cannot confer on the Tribunal a jurisdiction Parliament did not give it. It follows that the Senior Immigration Judge was right to have refused to consider the appellant's claim for leave to remain as a Tier 4 student.
(a) A duty to serve a section 120 notice?
"… the language of …, in particular sections 85(2), 96(2) and 120, does in my view demonstrate that they are intended to form constituent parts of a coherent procedure designed to avoid a multiplicity of applications and appeals."
"84. Nor do I consider that there is a great deal of force in the argument that the effect of the appellants' argument is to make the Tribunal the primary decision-maker in relation to any additional grounds. 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 and it is the responsibility of the appellant to ensure that it has all the material it needs to make a decision. Ultimately, however, the question must be whether the Act was intended to impose on the Tribunal a responsibility of that kind in relation to matters raised in response to a notice under section 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 section 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.
86. If the interpretation of section 85(2) put forward by the appellants were invariably at odds with the provisions of section 3C(4) Mr. Beer's argument would have more force, but section 3C(4) only applies to those whose existing leave to enter or remain is extended by statute and has no application to those who make their applications well before their existing leave expires. More important, however, is the fact that the service of a notice under section 120 is entirely in the option of the Secretary of State. He can choose not to serve a notice, in which case the appellant who falls within section 3C(4) is restricted to the scope of his original application. If, however, the Secretary of State chooses to serve a notice under section 120, he invites and requires the appellant to put forward any additional grounds that may be available to him. I do not think that section 3C(4) of the 1971 Act is inconsistent with the appellants' interpretation of section 85: taken as a whole the statutory scheme gives the Secretary of State the power either to rely on the restrictive effect of section 3C(4), with the prospect of further proceedings at a later date, or to ensure that grounds for seeking the same relief that would otherwise have to be pursued in those further proceedings can be swept up into, and considered as part of, the existing proceedings."
Sullivan LJ agreed. He said:
"102. The effect of section 3C of the 1971 Act as interpreted by this Court in JH (Zimbabwe)  EWCA Civ 78, is set out in paragraph 14 of Arden LJ's judgment. I do not consider that the wider interpretation of the relevant statutory provisions in the present case produces any inconsistency, or lack of coherence with section 3C as interpreted in J H (Zimbabwe). Section 3C prevents Appellants from making, of their own volition, new applications for leave to enter or remain, thereby giving themselves the benefit of successive extensions of their original leave to remain. The position under section 120 is quite different. If an Appellant is served with a section 120 notice he is given no choice in the matter: he must state any reasons he may have for wishing to enter or remain in the UK, and any grounds on which he should be permitted to do so. The Secretary of State is not required to elicit those reasons if he does not wish to do so. Section 120 provides that he "….may by notice in writing require…" a Statement of additional grounds. If the Secretary of State chooses to exercise his discretion to impose such a requirement on an Appellant there is no obvious reason why these additional grounds – which are not limited to human rights grounds – should not be considered in the appeal process."
The italics in both citations are of course mine. Arden LJ similarly considered that section 120 conferred on the Secretary of State a power rather than a duty: see paragraph 62 of her judgment.
"By s.120 of the 2002 Act the Home Secretary is empowered, though not required, to give written notice requiring a person who has applied to remain here to state, if they have not already done so, …"
This summary is consistent with what was said in AS. However, in paragraph 25, he said:
"25. In my judgment the power given to the Home Secretary by s.120 to serve a one-stop notice is not merely discretionary or elective. In addition to promoting good public administration, it is there for a purpose which Parliament has made part of its legislative policy and is to be exercised accordingly except where there is a lawful reason not to do so. As was said in TE (Eritrea), §18, the state has an interest in not multiplying administrative proceedings and appeals. It also has duties of fairness towards individuals whose lives are on hold, and who may well be committing a criminal offence by their mere presence, while they await an appealable decision."
(b) The consequences of no section 120 notice having been served
(c) May the Tribunal consider additional grounds advanced by an appellant if no section 120 notice has been served, and if so is it under a duty to do so?
(d) What if the Secretary of State does not take the point?
"127. I regret that that this area of immigration law has now become an impenetrable jungle of intertwined statutory provisions and judicial decisions, with the result that reasonable differences of opinion (such as that between Aikens LJ and Arden LJ) are now perfectly possible. There is an acute need for simplification so that both immigrants and immigration officers may have a clearer understanding of their responsibilities and rights."
In my judgment, if anything Jackson LJ understated the problems. I could easily have reached contrary conclusions in this case, and given respectable reasons for doing so. There is an urgent need for a simply-stated and clear codification of statute law on immigration rights, restrictions, administrative procedures and appeals.
Lord Justice Lewison:
Lord Justice Maurice Kay