ON APPEAL FROM
THE ADMINISTRATIVE COURT, MITTING J
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOSES
LORD JUSTICE SULLIVAN
| E1/(OS RUSSIA)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Jonathan Swift QC, Jonathan Glasson and Robert Wastell (instructed by the Treasury Solicitor) for the Respondent
Hearing dates: 28th February and 1st March 2012
Crown Copyright ©
Lord Justice Sullivan:
"There is no statutory right of appeal against the Secretary of State's decision to exclude you from the United Kingdom (the decision is reviewed every 3 to 5 years). However, there is an out-of-country right of appeal against the decision to cancel your indefinite leave to remain.
Your are entitled to appeal against the decision to cancel your leave to remain under the Special Immigration Appeals Commission Act 1997. This is because the decision to cancel your leave to remain has been certified under section 97(3) of the 2002 Act as a decision made in accordance with a direction of the Secretary of State and which was given wholly or partly on the following grounds:
(a) in the interest of national security, or
(b) in the interests of the relationship between the United Kingdom and another country.
You may only appeal this decision from outside the United Kingdom. For the purposes of the appeal the cancellation of your leave will be treated as a decision to vary your leave to remain in the United Kingdom, which when the variation took effect, meant that you had no leave to remain. I enclose a notice of appeal to the Special Immigration Appeals Commission (SIAC) and guidance notes for completion of the appeal form." (emphasis added)
"The United Nations Convention travel document, number C00104277, issued to your on 25th February 2003, is no longer valid for travel. You should not seek to travel to the United Kingdom as you will be refused admission." (emphasis added)
"should be excluded from the UK as his presence in the UK would be non-conducive to the public good for reasons of national security."
The statutory framework
"(2) The regulations may, in particular, provide that a notice under subsection (1) of a decision against which the person is entitled to appeal under section 82(1) must state
(a) that there is a right of appeal under that section, and
(b) how and when that right may be exercised."
"(3) Subject to paragraph (6), the notice given under regulation 4 shall also include, or be accompanied by, a statement which advises the person of
(a) his right of appeal and the statutory provision on which his right of appeal is based;
(b) whether or not such an appeal may be brought while in the United Kingdom;
(c) the grounds on which such an appeal may be brought; and
(d) the facilities available for advice and assistance in connection with such an appeal.
(4) Subject to paragraph (6), the notice given under regulation 4 shall be accompanied by a notice of appeal which indicates the time limit for bringing the appeal, the address to which it should be sent or may be taken by hand and a fax number for service by fax." (emphasis added)
"(i) if the appellant is in the United Kingdom, not later than 10 days, or
(ii) if the appellant is outside the United Kingdom, not later than 28 days, after the appellant is served with notice of the decision against which he wishes to appeal."
It will be noted that the time limit runs from service of notice of the decision, not from the date of the decision against which the appeal is made. SIAC has power under rule 8(5) to extend these time limits "if satisfied that by reason of special circumstances it would be unjust not to do so."
The judgment of Mitting J
"It did tell [the Appellant] that he had a right of appeal, it did self evidently notify the decision against which a right of appeal lay, it correctly identified [SIAC] as the body to which an appeal should lie, but it was erroneous in stating that an appeal could only be brought while out of the United Kingdom."
" led to an adoption of a more flexible approach of focusing intensely on the consequences on non-compliance, and posing the question, taking into account those consequences, whether Parliament intended the outcome to be total invalidity."
"20. Applying that test to this decision letter, I am satisfied that Parliament would not have intended that it should be treated as totally invalid or ineffective. It notified the claimant of the decisions which the Secretary of State had taken, correctly stated that two of them could not be the subject of a statutory appeal, correctly stated that one of them, the immigration decision, could be the subject of a statutory appeal, correctly identified the court, SIAC, to which the appeal lay and correctly stated that, if the appeal were to be brought out-of-country, the appellant would have 28 days in which to make his appeal. The error, the assertion that he had no in-country right of appeal, did not deprive him entirely, or even to any significant extent, of an effective right of appeal. Consequently, and for those reasons, I am satisfied that the decision letter gave effective notice of the Secretary of State's decisions and triggered a right of appeal which the claimant exercised."
"Whenever a new right or remedy is established in the Court of Appeal, other litigants who might have taken advantage of that right or remedy, if only they had known about it earlier, will be disappointed. However, that is not normally a good reason to go back to earlier cases and unscramble decisions made by the parties on the basis of the law as previously understood."
"Where a common understanding of a complex area of law proves subsequently to be misplaced as a result of a decision of the Court of Appeal or the Supreme Court, then in other cases which have either been concluded or started and are being heard, like this one, in which different actions might have been taken had the misconception being realised earlier, the principle is that there is normally no good reason to unscramble the proceedings."
"17. It is, I think, clear, and indeed common sense, so indicates, that there are considerable disadvantages to be faced by an appellant if he has to pursue an appeal while he is out of the country. This is particularly the case where his evidence is crucial, as is obviously the position here, and is more apparent in an appeal to SIAC where national security issues are concerned and where the matters relied upon may, to an extent, be unknown to the appellant."
Lord Justice Moses:
Lord Justice Pill: