Case No: C5/2012/2503
Neutral Citation Number: [2013] EWCA Civ 652
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (Immigration and Asylum Chamber)
Upper Tribunal Judge Kebede
IA/22330/2011
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12th June 2013
Before :

LORD JUSTICE LEVESON
LORD JUSTICE PATTEN
and
LORD JUSTICE BRIGGS
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Between :

	Pavandeep Virk & Others	Appellants	
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	Secretary of State for the Home Department	Respondent	

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(Transcript of the Handed Down Judgment of
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Mr Zane Malik (instructed by Malik Law Chambers Solicitors) for the Appellants
Joanne Clement (instructed by Treasury Solicitor) for the Respondent

Hearing date : 17th April 2013
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Judgment
Lord Justice Patten : 
1.	This is an appeal against a determination of the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) (Judge Kebede) dated 7th August 2012 dismissing the appellants’ appeal against the earlier dismissal by the First-tier Tribunal (“FTT”) (Judge Beg) of their appeal under s.82 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) against the refusal of the Secretary of State to vary their leave to remain in the United Kingdom.
2.	Ms Virk is an Indian national who was born on 25th July 1986.  She entered the United Kingdom on 7th October 2009 as a student with leave to remain until 14th January 2011.  Her entry clearance was granted subject to student conditions of working no more than 20 hours per week during term time and with no recourse to public funds.  Her Tier 4 sponsor was the London Business College in Woolwich.
3.	Ms Virk acted in breach of her entry clearance conditions by moving from the London Business College to the London College of Excellence in Kenton Road, Harrow without informing the Secretary of State of the change.  The London College of Excellence had its sponsor licence revoked on 19th March 2010 so that the academic transcript and diploma certificate which Ms Virk submitted to the Secretary of State on 25th November 2010 under the number of the revoked sponsor licence was treated by the Secretary of State as the submission of a false document.  In addition, Ms Virk claimed child benefit for her child which was a further breach of her conditions of entry.
4.	In the light of these breaches the Secretary of State refused her application for leave to remain in the United Kingdom as a Tier 4 (General) student migrant and with it the applications for leave to remain by her dependent husband and child.  The refusal on these grounds was made under paragraph 322 (1A), (3) and (7) of the Immigration Rules.  The application was also refused because Ms Virk failed to score any points under Appendix C to the Immigration Rules. 
5.	The application for leave to remain was made on 24th January 2011, ten days after her existing leave expired, and was refused on 23rd June 2011.  The refusal letter stated in terms that Ms Virk was entitled to appeal the decision under s.82(1) of the 2002 Act and that if she did appeal Ms Virk was not required to leave the United Kingdom while the appeal was pending.
6.	In these circumstances, Ms Virk lodged an appeal to the FTT on 29th July 2011 on behalf of herself and her dependants. The grounds of appeal challenged the facts on which the decision was based and also relied on an alleged breach of Ms Virk’s Article 8 rights.  Ms Virk requested an oral hearing and the appeal was heard in the FTT by Judge Beg on 5th September 2011.  At that hearing the Secretary of State was not represented and no point was taken about the jurisdiction of the FTT to entertain the appeal.  The judge set out Ms Virk’s immigration history including the submission by her of false documents and noted that no question of discretion arose in relation to a mandatory refusal under Immigration Rule 322 (1A) based on the applicant’s dishonesty or deception.  Taking into account this and what he described as Ms Virk’s fraudulent claim to child benefit, he concluded that the application had been properly refused under Immigration Rule 322 (3) and (7).
7.	Ms Virk obtained permission to appeal to the Upper Tribunal on the ground that refusals under paragraphs 322 (3) and (7) of the Immigration Rules are discretionary and that no proper consideration had been given to the need to safeguard and promote the welfare of Ms Virk’s child as required by s.55 of the Borders, Citizenship and Immigration Act 2009.  On 28th October 2011 the Secretary of State wrote to the UT indicating that she did not oppose the appeal and invited the UT to determine the appeal with a fresh oral (continuance) hearing to consider whether Ms Virk was entitled to have further leave to remain.  On 8th November 2011 Judge Macleman issued directions to the parties which referred to this request and continued:
“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 [2011] 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.”
8.	There was no response to these directions by either party but on 7th August 2012 Judge Kebede proceeded to determine and dismiss the appellants’ appeals without an oral hearing on the ground that the original applications for leave to remain were made after the expiry of their current leave to remain.  The appellants therefore had no right of appeal and the FTT acted without jurisdiction in entertaining their appeals. 
9.	He therefore dismissed the appeals on that short ground and refused permission to appeal.  Permission to appeal was granted by Davis LJ both in relation to whether there was jurisdiction to entertain the appeals and as to whether the determination of the appeals on paper without an oral hearing was unfair and contrary to the rules of natural justice given the indication in the directions I have quoted that the appeals would be allowed. 
10.	In this Court the Secretary of State has accepted that the UT acted in a procedurally unfair manner by dismissing the appeals without an oral hearing.  Ms Clement accepts that, in the light of the directions, Judge Kebede should not have relied on the point about jurisdiction without at least giving the appellants the opportunity to consider and make submissions on that issue.  She also accepts that although the principal issue for this Court is whether there was jurisdiction in the FTT to entertain an appeal against the refusal of the applications for leave to remain, that jurisdictional argument, if correct, does not create a bar to the Court of Appeal or, for that matter, the UT proceeding to determine whether there was any legal basis for the appeals.  That seems to me to be clearly right.  The jurisdiction conferred by ss. 11 and 13 of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”) to determine any point of law arising from a decision of the lower tribunal must include the power to determine whether such a right of appeal exists at all.
11.	The consequence of these concessions is that only two grounds of appeal are left to be considered.  The first is whether the point about jurisdiction remains a bar to the appeal in the UT when it has not been taken in the FTT.  The second is whether the UT had jurisdiction to decide the appeal on a point which was not raised in or determined by the FTT. 
12.	Section 82(1) of the 2002 Act grants a right of appeal against an immigration decision.  This is defined by s.82(2)(d) as including:
“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,”
13.	Mr Malik, on behalf of the appellants, accepts that if the application for leave was made, as it was in this case, after the expiry of the applicants’ existing leave then a refusal of that application by the Secretary of State is not an immigration decision within the meaning of s.82(2).  It follows that the appellants had no right of appeal against the refusal and the FTT had no jurisdiction to entertain the appeal except for the purpose of dismissing it.  But Mr Malik submits that where the Secretary of State fails to take the jurisdiction point in the FTT the statutory bar in s.82(2)(d) cannot operate independently of the parties so as to determine the outcome of the appeal regardless of the respondent’s implied acceptance that the FTT had jurisdiction to entertain the appeal.
14.	He bases this submission on a distinction made by Sedley LJ in his dissenting judgment in Carter v Ahsan [2005] ICR 1817 between what he described as constitutive jurisdiction and adjudicative jurisdiction: that is the distinction between the statutory jurisdiction conferred on the relevant judicial body and its entitlement to reach a decision within that jurisdiction.  In Anwar v Secretary of State for the Home Department [2011] 1 WLR 2552 where a decision of the FTT to entertain an appeal was later reversed on reconsideration on the ground that there was no jurisdiction to hear an in-country appeal, the Court of Appeal held that the FTT had adjudicative jurisdiction to entertain the appeal for the purpose of deciding whether the appellant had left the United Kingdom by the relevant time and that until that issue was resolved against the appellant it could not be said that it lacked jurisdiction.  Sedley LJ at paragraphs 19-21 said this:
“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) [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 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.”
15.	Mr Malik submits that the issue of jurisdiction raised in the present case was likewise not one of constitutive jurisdiction because it depends on whether the applications for leave to remain were made prior to the expiry of the existing leave.  There was no obligation on the part of the FTT itself to inquire into whether it had jurisdiction (see Ajakaiye (visitor appeals – right of appeal) Nigeria [2011] UKUT 00375 (IAC).  Therefore, unless and until the point was taken and determined in favour of the Secretary of State it could not be said that the FTT acted without jurisdiction and its decision could not be set aside by the UT on those grounds.
16.	This argument, if right, has only a limited value to the appellants, as Mr Malik recognised, if it was open to the UT to take the point on jurisdiction on the appeal from the FTT.  In Anwar the point had been taken in the FTT by the Secretary of State and led to a re-consideration of the original appeal decision.  Therefore, as his second argument on the appeal, Mr Malik contends that the UT had no jurisdiction itself under s.11(1) of the 2007 Act to entertain and determine the appeal by reference to a point which was not decided in the FTT.  This is because the point of law on jurisdiction is not a point “arising from” the FTT’s decision.
17.	In support of his argument, Mr Malik referred us to the decisions of this Court in SA (Pakistan) v Secretary of State for the Home Department [2010] EWCA Civ 210 and RS (Nepal) v Secretary of State for the Home Department [2011] EWCA Civ 1320.  In SA (Pakistan) it was argued (by Mr Malik) that, following a reconsideration of an immigration decision in the tribunal under appeal, the appellant was not limited to relying on points of law raised before the tribunal.  The case in point concerned a refusal to vary the terms of the appellant’s leave to enter.  In the Court of Appeal the appellant wished to argue not merely that the Secretary of State had been wrong in making the refusal decision but also that she should have issued removal directions so as to enable the appellant to argue he should have leave to remain on compassionate or human rights grounds.  Laws LJ at paragraph 9 said that:
“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 [2008] 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.”
18.	Section 103(B)(1) is the predecessor to what is now s.13(1) of the 2007 Act.  In Sapkota and KA (Pakistan) the same issue arose but this Court (relying on its intervening decision in Mirza [2011] EWCA Civ 139) held that an unjustified deferral of the removal directions would mean that the immigration decision taken was not in accordance with the law.  It did not therefore have to consider the point raised in SA (Pakistan) but at paragraph 79 Aikens LJ said that:
“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.”
19.	He then went on to say at paragraph 110:
“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.”
20.	I propose to consider Mr Malik’s two points in reverse order because the second really answers the first.  Although, as Aikens LJ pointed out in the passage quoted above, it is difficult to see how a point of law about the correctness of the immigration decision not taken in the FTT or the UT can be regarded as a point of law arising from the decision of that tribunal, questions of jurisdiction which relate to the lower tribunal’s power to hear an appeal from that same immigration decision must, in my view, arise from that decision whether taken or not below.  There is nothing in either SA (Pakistan) or Sapkota which decides the contrary because, as Ms Clement submitted, the issue of jurisdiction necessarily arises out of the decision which the lower tribunal has made.  In SA (Pakistan) and Sapkota, by contrast, the appellant wished to challenge not the immigration decision itself, but the failure of the Secretary of State to make a different immigration decision by issuing directions for removal.  The jurisdictional point in this case was therefore open to be taken on the appeal in the UT.
21.	On that basis, Mr Malik can only succeed on this appeal by persuading us that although the point lay within the UT’s jurisdiction to decide under s.11(1) of the 2007 Act, it could not be raised there because it had not featured in the FTT.  Although, as mentioned earlier, this point was argued by reference to Sedley LJ’s judgment in Anwar, I am not convinced that that really assists Mr Malik.  As I have indicated earlier in this judgment, a judicial tribunal must have jurisdiction to decide (including by reference to any disputed facts) whether it does have jurisdiction.  The distinction between constitutive and adjudicative jurisdiction is one way of expressing that point.  But the acknowledged ability of the FTT in this case to decide whether it had jurisdiction does not of itself impose a procedural bar on the objection to its jurisdiction being taken on a subsequent appeal.
22.	In Anwar itself the point about jurisdiction was taken by the Secretary of State but in Nirula v First-Tier Tribunal [2012] EWCA Civ 1436 a court of appeal comprising Longmore and Davis LJJ and Sir Stephen Sedley rejected the argument that the FTT cannot take a point about jurisdiction of its own motion.  Longmore LJ at paragraphs 30-32 said that:
“[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 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.
[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 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.
[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.”
23.	This decision is consistent with the fact that the FTT is a creation of statute whose jurisdiction in this case is limited by the terms of s.82 of the 2002 Act.  The same goes for the UT.  Statutory jurisdiction cannot be conferred by waiver or agreement; or by the failure of the parties or the tribunal to be alive to the point.  Although, as Longmore LJ pointed out, decisions taken without jurisdiction may in due course become irreversible, that point has not been reached in this case.  It was, in my judgment, open to either the FTT or the UT to take the point about jurisdiction notwithstanding the failure of the Secretary of State to raise it herself.  Judge Kebede was therefore entitled to rely on the FTT’s lack of jurisdiction in order to decide the appeal and the only objection to his duties lies in the way he proceeded to determine it.
24.	Since Mr Malik accepts that the point, if open, is fatal to his clients’ appeal, I would set aside the decision of the UT under s.14(2) of the 2007 Act but exercise the power contained in s.14(2)(b)(ii) to re-make the decision and dismiss the appeals. 
Lord Justice Briggs :
25.	I agree.
Lord Justice Leveson :
26.	I also agree.