England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/03/2012

Lord Justice Stanley Burnton :

Introduction

1. This appeal raises a difficult question as to the jurisdiction of the First Tier Tribunal (Immigration and Asylum Chamber) in relation to matters raised by an appellant in his appeal from an adverse immigration decision of the Secretary of State which he had not previously raised, in a case in which no "one-stop" notice under section 120 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) has been served by the Secretary of State. In AS (Afghanistan) v Secretary of State for the Home Department [2011] 1 WLR 385 the Court of Appeal stated that the tribunal has no jurisdiction to consider the new matters in absence of a section 120 notice. However, the contrary view is expressed by the authors of MacDonald's Immigration Law and Practice (8^th edition) at paragraph 19.22, who state that what was said by the Court in AS (Afghanistan) was obiter.

The facts

2. This is the appeal of Rabindra Jung Lamichhane against the determination of Senior Immigration Judge McKee sitting in the Upper Tribunal (Immigration and Asylum Chamber) dismissing his appeal against the determination of Immigration Judge Talbot in the First Tier Tribunal which in turn dismissed his appeal against the decision of the Secretary of State refusing his application for indefinite leave to remain in the United Kingdom on the ground of his long residence.
3. The appellant had originally entered this country in 1999, and was given leave to enter as a student, valid until September 2000. He had remained in this country ever since, with periods of extended leave. In October 2009 he applied for indefinite leave to remain on the ground that he had at least 10 years' continuous lawful residence in this country, which would satisfy the requirement in paragraph 276B(i)(a) of the Immigration Rules. By letter dated 3 February 2010 the Secretary of State refused his application, on the ground that he had not in fact been lawfully resident here for 10 years. The Secretary of State's letter did not include a notice under section 120 of the 2002 Act, and no such notice was ever served separately.
4. The appellant appealed to the First Tier Tribunal. He filed his notice of appeal in the appropriate form IAFT-1. Section 5 of the form is headed "Statement of additional grounds" and includes the following instruction:

"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.

….."

5. It is common ground that although a section 120 notice need not be included in a notice of decision, and may be served subsequently, the requirement referred to in the form is a section 120 notice. Although none had been served, the appellant's solicitors set out in section 5 of his form the following statement of additional grounds:

"Based on [section 120] and the case of AS (Afghanistan) [2009] 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."

6. The First Tier Tribunal rejected the appellant's contention that he satisfied the long residence requirements and his contention that he had a good Article 8 claim. Although there had been no section 120 notice, the Immigration Judge considered the judgments of this Court in AS (Afghanistan) and held that the Tribunal had both the power and the duty to consider his claim for leave to remain as a Tier 4 student. He remitted this claim for consideration by the Secretary of State.
7. The appellant was given permission to appeal to the Upper Tribunal on one ground only, namely that the First Tier Tribunal had no power to remit the Tier 4 student claim to the Secretary of State, but should have decided the claim itself, although it had never been considered by the Secretary of State.
8. At the hearing before Senior Immigration Judge McKee, the Secretary of State did not contend that the Tribunal had no jurisdiction to consider the Tier 4 student claim. It seems to have been common ground that it was not open to the Immigration Judge to dispose of the appeal before him by way of remission to the Secretary of State, but should he have decided the claim. He not having done so, it was for the Upper Tribunal to do so. The Senior Immigration Judge indicated during the course of the hearing that he was satisfied that the appellant met the requirements for leave as a Tier 4 student, and that he would allow the appeal.
9. However, after the hearing on reflection the Senior Immigration Judge decided that the Tribunal did not have jurisdiction to consider that claim, since there had been no section 120 notice and therefore the statement making that claim was not a "statement under section 120". He said:

"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.

10. The appellant appealed to this Court, contending that, notwithstanding the fact that there had been no section 120 notice, the Senior Immigration Judge was required to consider his Tier 4 student claim and he should have decided it in his favour.
11. Before the date for the hearing of the appeal, the Secretary of State accepted that the appellant was entitled to leave to remain as a Tier 4 student. This rendered the outcome of the appeal academic so far as the appellant is concerned. However, because the issues raised are of general importance, and the likelihood of other appellants relying on the statement in MacDonald to which I have referred, the accuracy of which is disputed by the Secretary of State, the Court decided to hear and to decide the issue as to the jurisdiction of the Tribunal in a case such as the present, i.e., where the Secretary of State does not serve a section 120 notice, but new grounds that have not been considered by her are put forward on appeal to the Tribunal from her decision.

The statutory framework

12. This appeal is primarily concerned with Part 5 of the 2002 Act, headed "Immigration and Asylum Appeals". The starting point is section 82, which confers the right of appeal to the Tribunal and defines "immigration decision" for the purposes of that Part:

"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),

(h) ….

(3) ….

(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.

13. Sections 83 and 83A confer additional rights of appeal for persons who have made an asylum claim. Section 84 prescribes the grounds of appeal, of which those presently relevant are those in subsection (1), paragraphs (a), "that the decision is not in accordance with immigration rules" and (e) "that the decision is otherwise not in accordance with the law".
14. Section 120 is in Part 6 of the 2002 Act, dealing with immigration procedure, and is as follows:

"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."

15. Section 85 of the 2002 Act is central to the issues in this appeal. At the times relevant to this appeal, it was as follows:

"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."

16. The consequences of the service of a section 120 notice are also addressed in section 96. I think it necessary to set out, so far as is relevant, its original provisions and those as they are now and have been since its amendment in 2004 by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The original text was as follows:

"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.

…."

17. Since 2004, section 96(1) and (2) have been as follows:

"(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."

18. It is also necessary to refer to section 86:

"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.

(4) ….

(5) In so far as subsection (3) does not apply, the Tribunal shall dismiss the appeal.

(6) …"

19. Lastly, section 3C of the Immigration Act 1971 forms part of the essential background:

"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).

(3) ….

(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).

…."

20. In JH (Zimbabwe) [2009] EWCA Civ 78, at paragraph 35, this Court held that the purpose of subsection (4) is to prevent abuse of the system by the making of successive applications "leading to a successive extension of the original leave to remain".

The contentions of the parties

21. On behalf of the appellant, Mr Malik submitted:

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.

22. For the Secretary of State, Mr Swift QC submitted:

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.

Discussion

(a) A duty to serve a section 120 notice?

23. In the absence of authority, and but for the amendment of section 96 to which I have referred, I would unhesitatingly hold that section 120 confers a power on the Secretary of State but not a duty. Its wording is clear. If Parliament had intended to impose a duty, the word "may" would have been replaced by "must", possibly with some words of qualification or exception. I am encouraged in this literal but obvious interpretation by the fact that if there is a duty imposed as a matter of public law, neither party has been able to suggest a circumstance that would sensibly allow the Secretary of State not to serve a notice. In other words, the duty, if there is one, would be without qualification or exception. Curiously, too, it would be without a clear time for its performance. If the Secretary of State may in any particular case lawfully consider the refusal to extend leave and the issue of removal directions separately (as to which see Mirza [2011] EWCA Civ 159 and Sapkota [2011] EWCA Civ 1320), it would seem that the duty may arise more than once, for example on the refusal to extend leave (section 82(2)(d)) and on the decision to remove (section 82(2)(g)). A statement made pursuant to section 120 must be considered by the Tribunal even if made after the appeal was commenced: section 85(3). Presumably, therefore, a section 120 notice may similarly be lawfully served after the commencement of an appeal. It is very difficult to reconcile these matters with a duty to serve the notice. I am further encouraged to adopt the permissive interpretation by the fact that the Immigration (Notices) Regulations 2003, SI 2003 no. 658, made by the Secretary of State under section 105 of the 2002 Act and which came into force on the same date as the Act, prescribe the form of notice of an immigration decision to be given by the Secretary of State, and do not include in that form a section 120 notice. Lastly, if the Secretary of State is under a duty, it is difficult if not impossible to explain why section 96 now makes separate provision for the consequences where she serves such a notice and where she does not.
24. The purpose of the service of a section 120 notice, at least when section 96 was in its original form, is obvious. If the Secretary of State served a notice, the appellant was required to state in response to it all the matters on which he relied; if he did so, the Tribunal could consider them, as provided by section 85(2). If the appellant failed to put forward a matter on which he later sought to rely, and the Secretary of State rejected his application based on it, she could certify under section 96(2) that it was a matter that he should have raised in response to the notice, and if so he had no appeal against that rejection. If the Secretary of State did not serve a notice, it seems to me to have been implicit in section 85(3) that the Tribunal could not consider any new matter, but the appellant could not be barred under section 96 from appealing a subsequent decision by the Secretary of State unless his later claim was so clearly unfounded that she was of the opinion that it was only made to delay his removal.
25. This appears to me to be a rational and fair scheme. As Moore-Bick LJ said in AS at paragraph 78:

"… 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."

26. There is an issue to which I have not referred in the above analysis, and that is the question whether on an appeal against an adverse decision on one application (for instance, as in the present case, for indefinite leave to remain) the appellant may seek from the Tribunal an extension of his leave to remain on a totally different basis (e.g., as here, as a Tier 4 student, which entitles a appellant to leave to enter or to remain for a limited period only) which has never been put to the Secretary of State. That issue was decided by the majority in AS adversely to the Secretary of State, who had argued that even where a section 120 notice had been served and additional grounds put forward by the appellant, the jurisdiction of the Tribunal was restricted to the actual decision made by her (in the present case, the rejection of the application for indefinite leave to remain on the ground of long residence). The Secretary of State accepts that we are bound by that decision, although she reserves the right to argue in the Supreme Court that AS was wrongly decided if the occasion arises. Leaving that aside for the moment, there are two reasons why the scheme I have set out in paragraph 24 must be reconsidered. The first is that the issue is not free from authority in this Court, as indeed is obvious from the above reference to AS; the second is that, as appears above, section 96 has been substantially amended, and the impact, if any, of that amendment on the effect of section 85 must be considered.
27. Turning first to the authorities, the appeal in AS concerned two claimants, AS and NV. Both had been served with section 120 notices, and as in the present case, they had made claims in their section 120 statements different from the claim made to the Secretary of State. In the course of holding that the Tribunal had jurisdiction to consider the new claims, the majority considered section 120. Moore-Bick LJ said:

"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.

85. …

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) [2009] 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.

28. Since in the cases considered in AS section 120 notices had been served, Mr Malik submitted that what was said by Moore-Bick and Sullivan LJJ about the power conferred on the Secretary of State by section 120 was obiter. In this, as mentioned above, he is supported by MacDonald's Immigration Law and Practice. Mr Swift submitted that these statements were part of the ratio of their decision. I agree. In the judgments of both Moore-Bick and Sullivan LJJ, the fact that, as they held, the Secretary of State was not under a duty to serve a section 120 notice was a consideration leading to, a step along the way to, their ultimate conclusion as to the jurisdiction of the Tribunal.
29. Section 120 was again considered by this Court in Mirza & ors v Secretary of State for the Home Department [2011] EWCA Civ 159. The appeals concerned the question whether the Secretary of State, when refusing to extend or to grant leave to remain, was under a duty to make a removal decision at the same time or promptly thereafter, with the consequence, it was argued, that the immigration decision as to the refusal of leave would be unlawful if that duty was not complied with. Thus the question whether the Secretary of State was under a duty to serve a section 120 notice when refusing leave was not strictly at issue. AS was cited to the Court, but neither of the passages from the judgments of Moore-Bick and Sullivan LJJ was referred to in the judgments. All of the appellants save one (Mr Abassi) had been served with section 120 notices. The only substantive judgment was given by Sedley LJ, with whom Rimer LJ and Sullivan LJ (who seems to have forgotten what he had said in AS) agreed. At paragraph 23 of his judgment, Sedley LJ said:

"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."

30. In my respectful judgment, in this passage Sedley LJ read section 120, not as providing that the Secretary of State or an immigration officer "may by notice in writing require the person to state …..", but as providing that the Secretary of State or an immigration officer "must, unless there is a lawful reason not to do so, by notice in writing require the person to state …." That is judicial legislation, not interpretation. I fully agree that good and efficient administration is furthered by the service of a section 120 notice, but that is not a good or sufficient reason to do such violence to the statutory wording and to impose a duty where Parliament has clearly not done so. In any event, this passage from the judgment is, I think, truly obiter, and although not strictly per incuriam, was given without reference to what had clearly been said, and I think held, in AS.
31. Mirza was followed by this Court in Sapkota [2011] EWCA Civ 1320. Aikens LJ gave the lead judgment. Again, although AS was referred to, neither of the passages from the judgments of Moore-Bick and Sullivan LJJ that I have cited were mentioned. Aikens LJ accepted that Mirza had established that the Secretary of State is under a duty to serve a section 120 notice: see paragraph 101. Jackson LJ agreed with Aikens LJ. Arden LJ expressed no opinion on this issue.
32. I fully accept Mr Malik's submission that Mirza and Sapkota are authority for the proposition that an enactment conferring what may appear to be a statutory power may impose a public law duty. However, neither is binding authority for the proposition that the Secretary of State is under a duty to serve a section 120 notice. AS is in my judgment binding authority to the contrary. Furthermore, if AS is also obiter on this point, I prefer to follow the dicta in that case as against what was said in Mirza and accepted in Sapkota.
33. It follows that I would reject the submission that the Secretary of State is under a duty to serve a section 120 notice, or indeed that she is under such a duty unless there is a good reason not to do so. The section confers a discretionary power, as held in AS.

(b) The consequences of no section 120 notice having been served

34. It follows that in my judgment the fact that the Secretary of State does not serve a section 120 notice cannot render an immigration decision unlawful.

(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?

35. As will be seen, I have found this a difficult question. Section 120 does not itself provide for the consequences of the service of a notice. It does not stipulate any time limit for its notice or for the statement which it invites the applicant to make in response to it. The primary consequence of the service of a section 120 notice is to be found in section 96. As mentioned above, originally it made separate and different provision for the case where no such notice had been served (subsection (1)) and where a notice had been served (subsection (2)). However, as Mr Swift had to concede, as a result of the amendment of section 96, there is now no material difference between the two cases. In both cases, an applicant has no right of appeal against an immigration decision if the Secretary of State certifies that the matters on which he relies could and should have been raised in his appeal against an earlier decision.
36. However, we now see a conundrum. If "matter" in section 96 includes a contention that (in a section 82(2)(d) case) the applicant is entitled to a variation of his leave to remain on a different ground from that originally put forward (such as occurred in the present case), where no section 120 notice has been served, if section 85(2) has the effect for which the Secretary of State contends, the applicant can never put forward that new matter in his appeal, and so the Secretary of State can never certify that he had no satisfactory reason for not raising it in his appeal. I think that "matter" in section 96(1) must have the same meaning as it has in subsection (2), and the same meaning as it has in section 85. As Mr Swift accepts, we are bound by AS to accept that a "matter" in section 85 and in section 96(2) includes such a new matter.
37. It is possible to arrive at some distinction between the matters to which section 96(1) can apply and those to which subsection (2) can apply. For example, on an appeal against a refusal to extend leave, an appellant will give reasons why he contends that he should be granted the extension of his leave, but he is not bound to give reasons why he should not be removed, whereas section 120(2) extends to such reasons. One can interpret "matter" in section 96(1) as including both a new ground and evidence, and conclude that in practice in that subsection it can only include evidence. However, these are such recondite distinctions, leaving such little scope for subsection (1)(c), that I have difficulty in believing that Parliament intended the statutory machinery to work in this way. On the other hand, if an applicant is free to raise any new matter in his appeal, whether or not a section 120 notice has been served, section 96(1) would have real scope and practical utility. But, if so, section 120 would have little purpose.
38. Before leaving section 96 I have one further comment to make. If section 85(2) has the effect for which the Secretary of State contends, in my judgment, where section 96(1) refers to a matter being "raised", it must mean "lawfully raised", for two reasons. First, that is the natural meaning. Secondly, any other meaning would distinguish irrationally and unfairly between an appellant who puts forward a new matter in his appeal, and is told that by reason of section 85(2) the Tribunal cannot consider it, and an appellant who is correctly (on this hypothesis) advised that the Tribunal cannot consider any new matter, and therefore does not put it forward in his appeal.
39. I can now turn to section 85(2). The reference to "a statement under section 120" is a statement made in response to a notice served under that section. There can be no such statement if no section 120 notice has been served. It is implicit in section 85(2) that in the absence of such a statement the Tribunal shall not 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". Given the conclusion I have reached on section 96(1), this does disadvantage the appellant, in that if his leave has expired in order to rely on his new ground he must either stay in this country unlawfully, or make his application from outside this country. Against that, if he stays in this country and the Secretary of State serves removal directions, he will have a right of appeal under section 82(2)(g) against the decision of the Secretary of State on his new ground.
40. The wording of much of section 85 and 86 is unfortunate, with the meaning of expressions such as "matter", "ground of appeal", "substance of the decision" and even, as the dissenting judgment in AS demonstrates, "decision" being less than clear. In the absence of section 85(2), it would be possible to construe these sections as conferring power on the Tribunal to consider any ground put forward by an appellant, whether or not a section 120 notice has been served. Section 85(2) makes that very difficult, and if it is not construed as contended for by the Secretary of State it is difficult to see that such a notice has any utility.
41. I conclude, therefore, that the Secretary of State's contentions as to the effect of section 85(2) are well-founded, and an appellant on whom no section 120 notice has been served may not raise before the Tribunal any ground for the grant of leave to remain different from that which was the subject of the decision of the Secretary of State appealed against. The answer to question (c) above is No.

(d) What if the Secretary of State does not take the point?

42. Before us, Mr Swift submitted that section 85(2) goes to the jurisdiction of the Tribunal. Mr Malik seemed to accept this, but relied on the somewhat elusive distinction between constitutive and adjudicative jurisdiction referred to by Sedley LJ in his judgments in Anwar v Secretary of State for the Home Department [2010] EWCA Civ 1275 at paragraph 20 and in Carter v Ahsan [2005] EWCA Civ 990.
43. In my view, section 85(2) is a statutory extension of the jurisdiction of the tribunal in cases in which there has been a statement made by the appellant under section 120. It follows that the Tribunal has no jurisdiction to consider or to rule on "any matter … which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against" if there has been no section 120 notice, and therefore no statement under that section. This conclusion is consonant with my conclusion as to the effect of section 96(1) as it now is. If it were otherwise, an appellant might not know whether he could raise any new ground in his appeal until the hearing of his appeal, and the test in section 96(1)(c) becomes unworkable.
44. I conclude, therefore, that the Senior Immigration Judge was right to refuse to consider the appellant's application as a Tier 4 student.

Conclusion

45. In Sapkota, Jackson LJ said, with feeling:

"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.

46. I would add that if, as a result of this judgment, if Maurice Kay and Lewison LJJ agree with it, section 96(1) of the 2002 Act has less practical effect than the Secretary of State expected, the remedy is in her hands. It is to serve a section 120 notice whenever she makes an immigration decision.

Lord Justice Lewison:

47. I agree.

Lord Justice Maurice Kay

48. I also agree.