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)
Deputy Upper Tribunal Judge Wood TD
IA/10582/2012

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 February 2014

Lord Justice Richards :

1. The appellant is a Bangladeshi national who entered the United Kingdom pursuant to leave granted in October 2009 as a Tier 4 (General) Student, to study at Guildhall College. His leave was valid until 31 January 2012. On that date he applied for an extension of leave to remain as a Tier 4 (General) Student and for a biometric residence permit. A decision to refuse the application ("the variation decision") was notified to the appellant by letter dated 18 April 2012.
2. The same letter notified the appellant that a decision had been made to remove him from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 ("the 2006 Act").
3. Section 47, as originally enacted, provided that where a person's leave to enter or remain was extended pending appeal the Secretary of State might decide that the person was to be removed from the United Kingdom in accordance with directions to be given by an immigration officer if and when the leave ended. In Ahmadi (s.47 decision: validity: Sapkota) [2012] UKUT 00147 (IAC) the Upper Tribunal held that a removal decision under section 47 could not be made in respect of a person until written notice of the decision to refuse to vary that person's leave to remain had been given to that person, and that the Secretary of State's practice of incorporating both decisions in a single notice was incompatible with the legislation. The Secretary of State's appeal against the Upper Tribunal's decision was dismissed by the Court of Appeal in Secretary of State for the Home Department v Javad Ahmadi [2013] EWCA Civ 512.
4. In the present case the First-tier Tribunal held on the basis of the Upper Tribunal decision in Ahmadi that the decision to remove the appellant under section 47 was unlawful. It proceeded, however, to allow the appellant's appeal without giving separate consideration to the variation decision. The Secretary of State was granted permission to appeal to the Upper Tribunal. By a determination promulgated on 12 December 2012, Deputy Upper Tribunal Judge Wood TD found that the First-tier Tribunal had erred in law by failing to deal with the appeal against the variation decision. He set aside the decision of the First-tier Tribunal and remade it, finding that the variation decision was lawful and dismissing the appellant's appeal.
5. The appellant applied for permission to appeal to this court on three grounds. The first ground is in substance that the First-tier Tribunal was correct to allow the appellant's appeal in full because the effect of making an unlawful removal decision under section 47 was to vitiate the variation decision notified at the same time. The same issue was considered (and was decided in the Secretary of State's favour) by the Upper Tribunal in Adamally and Jaferi (section 47 removal decisions: Tribunal Procedures) [2012] UKUT 00414 (IAC). It has not previously been considered by the Court of Appeal. As appears at para 4 of the judgment of Sullivan LJ in Ahmadi, the issue (or a similar issue) was not pursued before the Court of Appeal in Ahmadi itself. But in his reasons for granting permission to appeal in the present case, Sir Stephen Sedley observed: "The result in Ahmadi makes the point of principle in this case inescapable".
6. Section 47 has now been amended with a view to dealing with the problem identified in Ahmadi. The amendment does not affect the present appeal because the removal decision in issue was taken under the original version of the section.
7. The remaining grounds of appeal relate to the two grounds on which the application for variation of leave to remain was refused. The variation decision was based on: (1) paragraphs 245ZX(a) and 322(3) of the Immigration Rules, on the ground that the appellant had breached the conditions of his stay in the United Kingdom by switching educational provider to Walthamstow Business College, and (2) paragraph 245ZX(c) of the Immigration Rules, on the ground that he had not met the required minimum of 30 points because his Tier 4 sponsor had not confirmed that the course for which his Confirmation of Acceptance for Studies ("CAS") had been assigned represented academic progress from previous study.
8. At the outset of the hearing of the appeal Mr Blundell informed the court that the Secretary of State no longer sought to rely on ground (1), relating to breach of conditions of stay by switching educational provider. That is for case-specific reasons on which I do not need to dwell.
9. The Secretary of State does continue to rely on ground (2), relating to the absence of confirmation that the proposed course represents academic progress from previous study. That ground, if lawful, is capable of providing a sufficient basis for the variation decision.
10. I should mention that the appellant had legal representation before the First-tier Tribunal and the Upper Tribunal but represented himself at the hearing before us. He had previously submitted a written skeleton argument setting out his summary case on each of the issues. It became apparent during the hearing that his command of the English language was far from perfect and that he was unable to add much to the written document. The court was greatly assisted, however, by the conspicuously fair manner in which Mr Blundell presented the case for the Secretary of State, taking us through the material even-handedly and giving the appellant all proper assistance in following it. By reserving our judgment we also gave ourselves a further opportunity to ensure that any points in the appellant's favour had not been overlooked.

The section 47 issue

11. The Secretary of State accepts that the removal decision under section 47 of the 2006 Act was unlawful. The position she adopted on that issue in the Upper Tribunal was more equivocal but the Court of Appeal's judgment in Ahmadi has made the concession inevitable.
12. The question is whether the effect of an unlawful decision under section 47 was to vitiate the variation decision notified at the same time. The appellant's case is that it was, though he does not have a developed argument in support. The Secretary of State's case is that these were separate decisions, each engaging an independent right of appeal, and that the unlawfulness of one has no effect on the lawfulness of the other.
13. The relevant statutory provisions are contained in Part 5 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). Section 82 lists the decisions in respect of which there is a right of appeal:

"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 –

…

(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.

…

(ha) a decision that a person is to removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave)."

14. The starting-point, therefore, is that these were separate immigration decisions each of which carried with it a right of appeal.
15. The statutory policy is to encourage "one-stop appeals" whereby all grounds relied on by an appellant for remaining in the United Kingdom are considered in the course of a single appeal so as to avoid a succession of separate appeals. The policy is reflected in section 85(1) which provides:

"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."

Thus an appeal against a refusal decision within section 82(2)(d) is to be treated as including an appeal against a removal decision within section 82(2)(ha) and there is no need to bring a separate appeal against the removal decision. In itself, however, this does not affect the status of the decisions as separate decisions or involve any suggestion that they must stand or fall together on an appeal.

16. That the decisions need to be considered separately by the tribunal even within the context of the one appeal is confirmed by section 86 of the 2002 Act which provides:

"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."

The use of the words "in so far as" in subsections (3) and (5) shows that the matters to be considered by the tribunal, including any decision treated as being included within the appeal by virtue of section 85(1), may be the subject of a differential determination.

17. Accordingly, there is nothing within the statutory scheme to lead to the conclusion that where two decisions are notified concurrently and are the subject of appeal together, a determination that one of them is unlawful must lead to a determination that the other is unlawful. On the contrary, the statute contemplates that the tribunal may find one decision to be unlawful and in consequence allow the appeal in respect of that decision whilst at the same time finding the other decision to be lawful and dismissing the appeal in respect of that decision. This all makes good sense in terms of policy. As Mr Blundell submitted, there is a strong public interest in bringing all matters together for determination in a single appeal but there is no public interest in requiring an identical determination in respect of them.
18. Turning from the generalities of the statutory scheme to the specific decisions in issue in this case, there is no reason why the making of an unlawful removal decision under section 47 should invalidate a variation decision notified at the same time. Although the two decisions were notified together, I think it likely that the variation decision will have been taken first and that the removal decision will have been taken consequentially upon it; and if the variation decision was lawful when taken, I do not see how as a matter of principle its lawfulness could be affected by the unlawfulness of the consequential decision. But even if the two decisions were truly concurrent, the mere fact of concurrency cannot be a vitiating factor. Nor is there any reason to believe that the proposed removal of the appellant was taken impermissibly into account in reaching the variation decision. The reasons for the variation decision are set out clearly in the letter of 18 April 2012 and have nothing to do with the proposed removal.
19. I have reached the above conclusions by reference to the statutory scheme and considerations of principle but they are also consistent with, and derive support from, authority.
20. Patel & Others v Secretary of State for the Home Department [2012] EWCA Civ 741, [2013] 1 WLR 63 concerned a very different line of argument in relation to section 47 of the 2006 Act, namely that the Secretary of State's decision to refuse to extend leave to enter was unlawful because it had been taken in isolation from any decision to issue a removal direction under section 47. But part of the reasoning of the Court of Appeal in rejecting that argument has a real resonance for the issue now before us. Lord Neuberger of Abbotsbury MR, with whom the other members of the court agreed, said this:

"50. Thirdly, if the Secretary of State fails to decide whether to make a removal direction either at the same time as, or within a short time of, refusing an extension application, in a case where she ought to have done so (for public law or human rights reasons), I find it hard to accept that this could invalidate an otherwise unexceptionable decision to refuse the extension application. As a matter of logic, even if a statutory scheme has what Sedley LJ called in Mirza's case [2011] Imm AR 484, para 40 'a generalised practice' that two decisions should be taken at the same time, I am not quite sure why one of those decisions should be unlawful just because it is taken on its own, given that it cannot be contingent or even dependent on the other.

51. Given that in both Mirza's case and in Sapkota's case it was accepted that it would be quite appropriate for the decision-maker to make a removal direction some time after a rejection of an extension application, I have even greater difficulty with the notion that the rejection would be invalidated by a delayed removal direction …."

On further appeal the Supreme Court expressed entire agreement with the Court of Appeal's reasons on this issue: see [2013] UKSC 72, [2013] 3 WLR 1517, at paragraphs 26-27.

21. The issue before the Upper Tribunal in Adamally and Jaferi (cited at paragraph 5 above) was in substance the same as that now before us: "What should a Tribunal Judge do when faced with a single piece of paper on which is both a decision refusing a person further leave to remain and a decision that the person should be removed?" (paragraph 1 of the tribunal's determination). The tribunal said that it would follow Ahmadi and take the view that a section 47 decision was unlawful if combined with a decision to refuse further leave. It appeared that in a case where the decisions were served together the section 47 decision was unlawful but the decision to refuse further leave was not rendered unlawful by having to stand alone. The question was what was to happen if they were appealed. It was argued by Mr Malik that because the appeal against the section 47 decision fell to be allowed, the appeal as a whole had to be allowed. The tribunal rejected that argument for the following reasons, which refer in part to the judgment of the Court of Appeal in Patel:

"23. We do not accept them. In these circumstances, there is indeed one appeal before the Tribunal, but the wording of s.86(3) and (5) makes it in our view clear that it is open to the Tribunal to allow an appeal in part and to dismiss it in part. Indeed that may well happen when there is only one decision under consideration, but different grounds are relied upon, all of which have to be considered in accordance with s.86(2). In cases such as the present, we see nothing in the wording of s.86 which prevents a judge from disposing of the appeal by deciding that in so far as the appeal before him is against a decision made purportedly under s.47 it is allowed, but in so far as the appeal relates to a decision refusing variation of leave, it is dismissed.

24. Reading the section in that way has a number of other advantages. First, it is in accordance with the ratio of Patel. That is because if Mr Malik's construction were to be adopted, the judge would be required to declare as retrospectively invalid the decision refusing to vary leave, which itself was not invalid at the time that it was made. Secondly, adopting Mr Malik's construction would produce different results according to whether the appellant put in notices of appeal against both decisions or only one. If he put in notices of appeal against both decisions, he would of course succeed in challenging the s.47 decision, but he might lose his appeal against the refusal to vary: but if he put in only one notice he would be bound to win his appeal against both decisions, with the consequent advantage to him in terms of s.3C. That cannot have been intended. Thirdly, the interpretation we have adopted allows the phrase 'in so far as' its full meaning. Mr Malik's proposed interpretation would treat that phrase as synonymous with 'if'. 'If' was indeed the word used in the predecessors of s.86, that is to say in s.19 of the Immigration Act 1971 and in para 21 of schedule 4 to the Immigration and Asylum Act 1999. The change to the present wording must have been deliberate and would appear clearly to have the effect we have indicated. Fourthly, given that following Patel, the refusal to vary leave can stand by itself, there simply is no good reason why, when an appeal against that decision is clearly before the Tribunal, the Tribunal should not determine it. Indeed, if grounds of appeal have been advanced, the Tribunal is required to determine them ….

26. At the end of the day, the result should be that the Tribunal determines in substance the appeal brought against the lawful decision, and declares the other decision unlawful …."

22. I endorse that reasoning. The present appellant's submissions have taken the argument no further than it was taken on behalf of the appellants in Adamally and Jaferi and in my judgment the argument must fail.
23. It follows that the Upper Tribunal in this case was correct to find a material error of law in the approach of the First-tier Tribunal and to give separate consideration to the variation decision on the basis that it was not affected by the unlawfulness of the removal decision under section 47.

The second ground on which the variation decision was based

24. That brings me to the remaining ground relied on by the Secretary of State for refusal of the appellant's application for variation of leave to remain.
25. Paragraph 245ZX(c) of the Immigration Rules required the appellant to have a minimum of 30 points under paragraphs 113 to 120 of Appendix A. The effect of those paragraphs of Appendix A was that 30 points would be awarded for a CAS provided that certain further requirements were met. One such requirement was contained in paragraph 120A:

"120A(a) Points will only be awarded for a valid Confirmation of Acceptance for Studies (even if all the requirements in paragraphs 116 to 120 above are met) if the Sponsor has confirmed that the course for which the Confirmation of Acceptance for Studies has been assigned represents academic progress from previous study, as defined in (b) below undertaken during the last period of leave as a Tier 4 (General) Student or as a Student where the applicant has had such leave …."

26. The decision letter stated that no points had been awarded for the appellant's CAS, which was issued by West End College London, because it did not include the required confirmation that the course represented academic progress.
27. The original documentation is not before the court. At no time, however, has the appellant disputed the factual correctness of the decision letter. He made some suggestion to us that the lack of the relevant confirmation in the CAS was a mistake on the part of the College; but no such point was taken on his behalf either in the original appeal to the First-tier Tribunal or before the Upper Tribunal, in both of which he had legal representation, and it is far too late for a point of that kind to be taken now.
28. The one argument advanced on the appellant's behalf in the original appeal to the First-tier Tribunal and before the Upper Tribunal, and pursued by him in the appeal to this court, is that the Secretary of State acted unfairly in refusing the application on this ground without first giving the appellant an opportunity to address the issue.
29. In support of that argument, reliance is placed on the decision of the Upper Tribunal in Naved (Student – fairness – notice of points) [2012] UKUT 14 (IAC). The case related to an application under the points-based system for further leave to remain issue. The issue was whether the appellant was entitled to be treated as having an established presence as a student in this country on the basis of the course he had already completed. The form he had filled in did not require him to produce documentary evidence that he had completed his previous course (he was in a position to produce such evidence if he had been required to do so). But on receipt of the application the caseworker, without reference to the appellant, made an inquiry of his previous college and was informed erroneously that he had not completed the course. On the basis of that information the application was refused. In support of his appeal the appellant sought to rely on documentary evidence showing that he had completed the previous course. The general rule under section 85(4) is that the tribunal may consider evidence about any matter it thinks relevant to the substance of the decision. But that rule is subject to an exception, introduced by section 85A, in relation to applications under the points-based system. The effect of the exception is that the tribunal may only consider evidence which was submitted in support of and at the time of making the application to which the decision relates. The Upper Tribunal dealt with that problem as follows:

"13. The result is that, on a strict reading of s.85A, the appellant is not entitled to rely on the evidence which would have established his case on a point of which he was neither warned nor informed, until he received the decision deciding it against him, because he had not submitted it with his own application.

14. Nevertheless the appellant's treatment has been conspicuously unfair. His application for leave to remain is being refused because of failure to produce a document that he was never asked to produce; that document only became relevant because of inquiries the respondent made on the application, but did not communicate the results to the appellant before the decision was made, or else she would have been made aware that the response from the appellant's previous college was inaccurate. None of this would have mattered if s.85(4) had remained in force unaltered. We cannot imagine that Parliament intended to produce so clearly unfair a result.

15. In our judgment the problem arises not with the terms of the section, which is in any event binding on us as primary legislation, but with the conduct of the respondent in examining the application and refusing it in the way she did. Given that the respondent was (or should have been) aware of the consequences of s.85A when she made the decision in this case, the respondent is under a common law duty to act fairly in deciding immigration claims properly made to her. A failure to act fairly is a failure to act in accordance with the law and a failure to make a decision in accordance with the law is a ground of appeal to the tribunal …."

30. Accordingly the tribunal allowed the appeal on the ground that the duty to act fairly had not been complied with. At the same time it said this:

"21. We emphasise that the scheme of s.85A remains undisturbed by this determination. Applicants for extension of leave in a points-based system will need to read carefully the application form, and any lawful guidance associated with it, to ensure that they supply all relevant information in the application they are making. Omissions will no longer be able to be corrected on appeal …."

31. The Upper Tribunal in the present case distinguished Naved on the basis that the CAS prepared by the sponsor had to be submitted as part of the appellant's application and it was incumbent on him to check all documents submitted in support of the application. There was no duty on the Secretary of State to communicate with each and every applicant where there was some deficiency in the application.
32. I am not sure whether the appellant had an opportunity to check the CAS following its completion by the sponsor, and I note that part of the argument for the appellant is that he should not be penalised for the shortcomings of an institution of study over which he had no control. Nevertheless I agree with the tribunal that the situation here is very different from that in Naved and that fairness did not require the Secretary of State to give the appellant an opportunity to address any deficiency in the CAS. There was no question in this case of the Secretary of State obtaining additional information without reference to the applicant and relying on it to refuse the application. The Secretary of State simply applied the terms of the Immigration Rules themselves. Under the Rules it was the appellant who had the responsibility of ensuring that his application was supported by a CAS that met the requirements laid down. If the CAS did not meet those requirements, it could not earn him an entitlement to points. If the deficiency in the CAS was the result of a mistake on the part of the sponsor (a point which, as I have said, was not even raised by the appellant in the tribunals below), it was a matter to be pursued between the appellant and the sponsor. There was no obligation on the Secretary of State to give the appellant an opportunity to seek an amendment to the CAS before a decision was taken on the application. Indeed, the importance of all relevant information being provided as part of the application was underlined by the tribunal in Naved itself, in the passage I have quoted from paragraph 21 of the determination.
33. I am therefore satisfied that the challenge to this ground of refusal of the application for variation of leave to remain was rightly rejected by the Upper Tribunal.

Conclusion

34. For the reasons I have given, I would reject the appellant's case both in relation to the section 47 issue and in relation to the substantive challenge to the variation decision.
35. There is one small residual point that I would invite counsel for the Secretary of State to consider. The Upper Tribunal made a decision dismissing the appeal in its entirety. I think that it ought strictly to have allowed the appeal against the removal decision under section 47 whilst dismissing the appeal against the variation decision. Nothing of substance turns on this, since the Secretary of State's acceptance that the removal decision was unlawful means that she could not properly effect the appellant's removal pursuant to that decision even if the appeal against it has technically been dismissed. It might nevertheless be appropriate to regularise the position in the order made by this court.
36. Subject to consideration of that technicality, the appeal is dismissed.

Lord Justice Patten :

37. I agree.

Lady Justice Gloster :

38. I also agree.