ON APPEAL FROM THE UPPER TRIBUNAL (Immigration and Asylum Chamber)
Upper Tribunal Judge Kebede
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PATTEN
LORD JUSTICE BRIGGS
| Pavandeep Virk & Others
|- and -
|Secretary of State for the Home Department
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Joanne Clement (instructed by Treasury Solicitor) for the Respondent
Hearing date : 17th April 2013
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Lord Justice Patten :
"3. That response is unhelpful both as to the extent of error of law conceded, and as to the scope of the fresh decision which would be required. The appellants have raised issues wider than whether leave to remain should have been granted under Tier 4.
4. In the light of Sapkota  EWCA Civ 1320 (see in particular paragraph 114) these appeals may require to be allowed on the basis that the original decisions were not in accordance with the law, and the SSHD has to make a fresh, comprehensive, decision.
5. Unless the parties show cause to the contrary in writing within 14 days of issue of these directions, the Upper Tribunal proposes to dispose of these appeals to that effect, without a hearing."
"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,"
"19. Was the AIT right in Ms Pengeyo's and Mr Anwar's cases to hold that the respective immigration judges had acted without jurisdiction? In my judgment they had jurisdiction to embark on the hearing notwithstanding that neither applicant had left the United Kingdom, but once the point was taken by the Home Office (and assuming it to be factually correct, since they might have been absent from the hearing) it operated in bar of the proceedings. Had the point not been taken in either case, the immigration judge would have been bound to proceed with the appeal.
20. The reason for this ostensibly subtle distinction is one which matters. It is the distinction between constitutive and adjudicative jurisdiction which I sought to draw in a dissenting judgment in Carter v Ahsan (No 1)  ICR 1817, paras 16–27, which secured approval on appeal  1 AC 696. The constitutive jurisdiction of a tribunal is the power to embark upon trying specified kinds of issue. Whether a foreign national has obtained leave to enter or remain by deception is, by common consent, such an 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."
"9. The complaint that is sought to be made here is not in truth against the immigration decision. It is a complaint to the effect that the Secretary of State should have done something else as well, namely make a variation decision. Mr Malik this morning has referred us to section 103B of the 2002 Act. Subsection 1 provides:
"(1) Where an appeal to the Tribunal has been reconsidered, a party to the appeal may bring a further appeal on a point of law to the appropriate appellate court."
Mr Malik's submission is that, while it may be that the original appeal had to be focused specifically on the immigration decision in question, after a reconsideration an appeal to the appropriate court -- here the Court of Appeal -- may, under section 103B(1), be brought on any point of law whatever, whether or not it was raised before the AIT and whether or not it runs wider than would a mere assault on the immigration decision in question. However, I consider that the point of law being referred to in section 103B(1) must generally arise out of the decision of the AIT on the reconsideration; though it is true that that point was stretched somewhat in Bulale v SSHD  EWCA Civ 806. At all events, the language of section 103B(1) cannot be read so as to allow appeals upon matters travelling beyond the legal merits of the immigration decision originally sought to be appealed. In those circumstances there is no jurisdiction, within the four corners of these appeals as presently constituted, to entertain the TE (Eritrea) point."
"In my view, the primary decision of this court in SA (Pakistan) on jurisdiction concerned the very narrow but important point on the statutory jurisdiction of the Court of Appeal in relation to appeals from the AIT under s 103B(1) of the 2002 Act. The decision on the construction of that section contains two aspects. First, the "point of law" on which there is a right of appeal to the Court of Appeal ". . . must generally arise out of the decision of the AIT on the reconsideration". Secondly, the language of s 103B(1) ". . . cannot be read so as to allow appeals upon matters travelling beyond the legal merits of the immigration decision originally sought to be appealed". Hence, as Laws LJ said, it followed that the court had no jurisdiction to entertain the TE (Eritrea) point on those appeals, because that point had not been raised in the AIT and, as he held, the argument centred on the legality of not making the removal decision, rather than on the "immigration decision" that had been made."
"We are bound by what SA (Pakistan) did decide and we are bound by what Mirza decides. In my view two conclusions on the jurisdiction issues follow. First, in relation to KA, the fact that he has never argued the "fact of segregation issue" in any tribunal below means, at least in theory, that in his case there is no "point of law arising from a decision made by the Upper Tribunal" within the meaning of s 13(1) of the 2007 Act which this court can consider. Contrary to the further written submissions of Mr Malik, the reasoning of Laws LJ on the construction of s 103B(1) applies equally to s 13(1) of the 2007 Act which gives a right of appeal from the UT only on "any point of law arising from a decision made by the Upper Tribunal other than an excluded decision". If the decision of the UT has not considered a particular point of law because it was not raised or argued before the UT, it is difficult to envisage a point of law ". . . arising from . . ." the decision made by the Upper Tribunal. I would say, generally speaking, that such a point of law does not arise from a decision of the UT at all; it only arises for the first time in the Court of Appeal. Moreover, I would be prepared to accept that the language of s 13 of the 2007 Act cannot be read so as to allow appeals upon matters travelling beyond the legal merits of the immigration decision originally sought to be appealed, to use Laws LJ's phrase. Therefore, following the reasoning of the essential decision in SA (Pakistan) this court would have no jurisdiction to consider KA's appeal on the "fact of segregation issue" and his appeal would have to be dismissed on that ground alone. I put the matter in that conditional way because this point was not taken by Ms Rhee on KA's appeal."
" 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 paras 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.
 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 para 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.
 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."
Lord Justice Briggs :
Lord Justice Leveson :