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)
UTJ GLEESON
CO/11302/2012

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th October 2014

Lord Justice Davis:

Introduction

1. At the conclusion of the hearing before us, the court announced that the appeal would be allowed on the footing that the Upper Tribunal had had no jurisdiction to pronounce (by way of refusal) on this claim for permission to apply for judicial review. This court directed that the claim for permission to apply for judicial review be remitted to the Administrative Court, to be dealt with by a High Court Judge at an oral hearing; and further directed that such hearing be expedited. It stated that reasons for the decision to allow the appeal would be given in due course. These are my reasons for being party to such a decision.

Background facts

2. The case is yet another one which relates to the legacy programme or scheme which came into effect for the purpose of dealing with a huge backlog of asylum and human rights applications made before 5 March 2007. There is no need, given the nature of the issue before us, to set out details of the purpose behind and operation of such scheme. They have been fully explained in a number of earlier decisions of the courts.
3. The appellant came to the United Kingdom from Pakistan in 2003. His claim for asylum was refused. He appealed but his appeal was dismissed by a determination promulgated on 23 September 2003. His appeal rights were exhausted by October 2003. He did not, however, leave but remained in the United Kingdom.
4. It is not disputed that thereafter his case was such as potentially to fall within the legacy scheme.
5. On 9 August 2010 the Case Resolution Directorate (CRD) of the UK Border Agency wrote to the appellant seeking information for the purposes of the legacy scheme. Thereafter it was on 27 October 2010 internally recorded by the CRD that the appellant's address was not known; and the file was placed in the controlled archive. In a recent witness statement the appellant has conceded that he had failed to comply with the reporting restrictions which applied to him; however, he asserts that he had never absconded and that he had from time to time notified the Home Office of his various changes of address. He claims that he did not receive the letter from the CRD of 9 August 2010 as he by then had moved to an address of which he did not give notification until January 2011.
6. On 17 March 2011 solicitors acting on his behalf wrote a lengthy letter to the CRD providing certain information, noting that the appellant's case "is pending under legacy", making detailed further representations and requesting the grant of indefinite leave to remain. Various chasing letters were sent thereafter to the CRD and a threat of legal action was eventually made in the absence of communication of a decision. Indeed, a claim for judicial review was issued on 23 March 2012 but it was withdrawn on receipt of a decision letter dated 23 July 2012 from the Case Assurance and Audit Unit (CAAU) which had by now superseded the CRD.
7. The letter of 23 July 2012 indicated that the further submissions had been considered but that they did not qualify the appellant for asylum, humanitarian protection or discretionary leave. It was further indicated that the submissions had been considered under paragraph 353 of the Immigration Rules but it was decided that the submissions were not significantly different from the material previously considered. It was said:

"Your client has no basis of stay in the United Kingdom and should make arrangements to leave the United Kingdom without delay. In all the circumstances we prefer that those with no basis of stay in the United Kingdom leave voluntarily, but should your client fail to do so then their [sic] removal may be enforced."

8. Annexed to the letter was a Consideration of Submissions. This included a section on submissions which had not previously been considered but which did not create a realistic prospect of success. A further section was headed "Consideration of Exceptional Circumstances". It set out the provisions of paragraph 353B of the Immigration Rules which had by now replaced paragraph 395C (and the terms of which I do not need to replicate here). The letter then said:

"The Secretary of State has considered all the relevant factors of your client's case and is content that his removal from the United Kingdom remains appropriate for the following reasons."

The reasons are then given. They include (without being confined to) a degree of emphasis on the appellant never having been given leave to remain and on his failure to adhere to reporting restrictions.

9. The appellant's solicitors by a lengthy pre-action protocol letter dated 26 September 2012 challenged that decision, saying that it was unlawful. The letter advanced a number of arguments by reference to the legacy scheme. It also submitted that the fresh evidence supplied was significantly different from that previously considered and that it created realistic prospects of success. The remedies sought, among others, included:

"Grant of indefinite leave to remain in line with the terms of the legacy AND/OR acceptance of further submissions dated 17 March 2011 as amounting to a fresh asylum and human rights application and grant of an in-country right of appeal."

10. The response of the CAAU was dated 2 October 2012. It referred to the functions of the CRD in completing its review of "legacy asylum cases" and to the purposes of the establishment of the CAAU. It then stated:

"It is considered that the decision of 20 [sic] July was taken in accordance with the law, guidance and policies that existed at the time… On the basis of the evidence your client provided it was considered that he did not qualify for leave."

The letter went on to refer to the appellant's entitlement to raise further submissions as to why he should not be removed.

The judicial review proceedings

11. On 22 October 2012 the appellant commenced judicial review proceedings in the Administrative Court in respect of the decisions of 23 July 2012 and 2 October 2012. The primary remedies sought were (1) a declaration that the two decisions were unreasonable and unlawful; and (2) a declaration that "the defendant is required to consider the claimant's case as a legacy case and grant him indefinite leave to remain or discretionary leave to remain". I will have to come back in due course to the true nature and substance of the judicial review claim.
12. On 7 December 2012 the Administrative Court of its own motion, by order of a Deputy Master, directed that the case was to be transferred to the Upper Tribunal, Immigration and Asylum Chamber. The order on its face records that it was made "by virtue of the direction of the Lord Chief Justice which took effect on 17 October 2011 in relation to 'Fresh Claim Cases'".
13. The appellant, by his solicitors, protested at this transfer decision and challenged the jurisdiction of the Upper Tribunal. In due course (after the application for permission to apply for judicial review had been rejected in the Upper Tribunal on the papers) Upper Tribunal Judge Jordan directed that the question of whether the Upper Tribunal had jurisdiction should be dealt with as a preliminary issue at the oral hearing of the application for permission.
14. The matter came before Upper Tribunal Judge Gleeson. Both sides were represented at the hearing and had lodged written arguments in advance. By a written judgment dated 4 June 2013 the Upper Tribunal Judge accepted jurisdiction and refused the application for permission. She took the view that neither the letter of 23 July 2012 nor the letter of 2 October 2012 was "in terms a decision under the legacy policy". She took the view that there was as yet no decision taken under the legacy policy and the appellant's judicial review claim form did not seek a review of a legacy policy decision. She went on to say:

"If there were such a decision it would be appropriate to transfer this application to the High Court but the only decision made is that in the July 2012 letter, which is a human rights decision."

On that basis the Upper Tribunal Judge concluded that the decision was one properly open to the Secretary of State and was sufficiently reasoned. Accordingly permission was refused.

15. Miss Broadfoot (who appeared on behalf of the Secretary of State before us, but not in the Upper Tribunal) told us that at no stage had the advocate then appearing for the Secretary of State argued that there had been no decision on the legacy claim. (Indeed the Acknowledgement of Service with Grounds of Defence had accepted there had been such a decision.) The point seems to have been one taken by the Upper Tribunal Judge herself.
16. Leave to appeal from that decision was granted by Richards LJ at an oral hearing on 25 March 2014. He made clear in his judgment that his principal concern was on the jurisdiction point and, in that regard, whether the Upper Tribunal Judge had been right to regard the decision letters as limited to a human rights decision in the way she had.

The transfer provisions

17. I turn then to the provisions relating to transfer of judicial review claims to the Upper Tribunal applicable at the time. I emphasise "applicable at the time" as the provisions have since been very significantly amended.
18. The judicial review jurisdiction is conferred on the Upper Tribunal in the circumstances set out in section 15 of the Tribunals, Courts and Enforcement Act 2007. So far as transfer is concerned, the relevant statutory provision for present purposes, as counsel before us agreed, is s.31A of the Senior Courts Act 1981 as inserted (as amended) by s.19 of the 2007 Act and s.53 of the Borders, Citizenship and Immigration Act 2009. That provides as follows:

"31A Transfer of judicial review applications to Upper Tribunal

(1) This section applies where an application is made to the High Court—

(a) for judicial review, or

(b) for permission to apply for judicial review.

(2) If Conditions 1, 2, 3 and 4 are met, the High Court must by order transfer the application to the Upper Tribunal.

(3) If Conditions 1, 2 and 4 are met, but Condition 3 is not, the High Court may by order transfer the application to the Upper Tribunal if it appears to the High Court to be just and convenient to do so.

(4) Condition 1 is that the application does not seek anything other than—

(a) relief under section 31(1)(a) and (b);

(b) permission to apply for relief under section 31(1)(a) and (b);

(c) an award under section 31(4);

(d) interest;

(e) costs.

(5) Condition 2 is that the application does not call into question anything done by the Crown Court.

(6) Condition 3 is that the application falls within a class specified under section 18(6) of the Tribunals, Courts and Enforcement Act 2007.

(7) Condition 4 is that the application does not call into question any decision made under—

(a) the Immigration Acts,

(b) the British Nationality Act 1981 (c. 61),

(c) any instrument having effect under an enactment within paragraph (a) or (b), or

(d) any other provision of law for the time being in force which determines British citizenship, British overseas territories citizenship, the status of a British National (Overseas) or British Overseas citizenship.

(8) Condition 5 is that the application calls into question a decision of the Secretary of State not to treat submissions as an asylum claim or a human rights claim within the meaning of Part 5 of the Nationality, Immigration and Asylum Act 2002 wholly or partly on the basis that they are not significantly different from material that has previously been considered (whether or not it calls into question any other decision)."

19. So far as Condition 3 is concerned, counsel were agreed that the specified class for these purposes was, at the time relevant to this case, the class specified in the Practice Direction (Upper Tribunal: Judicial Review Jurisdiction) issued by the Lord Chief Justice with effect from 17 October 2011, albeit it has since been superseded with effect from 1 November 2013. The Transfer Direction as it then stood reads, in the relevant respects, as follows:

"1. The Lord Chief Justice hereby specifies the following class of case for the purposes of section 18(6) of the Tribunals Courts and Enforcement Act 2007 ('the 2007 Act'):

Applications calling into question a decision of the Secretary of State not to treat submissions as an asylum claim or a human rights claim within the meaning of Part 5 of the Nationality, Immigration and Asylum Act 2002 wholly or partly on the basis that they are not significantly different from the material that has previously been considered.

2. An application also falls within the class specified in paragraph 1 if, in addition to calling into question a decision of the sort there described, it challenges:

(i) a decision or decisions to remove (or direct the removal of) the applicant from the United Kingdom; or

(ii) a failure or failures by the Secretary of State to make a decision on submissions said to support an asylum or human rights claim;

or both (i) and (ii) but not if it challenges any other decision."

Submissions

20. Miss Broadfoot in a (late) Respondent's Notice accepted that the Upper Tribunal Judge was wrong to say that no "legacy decision" had been made in the decision letters. But she said that makes no difference. The decision letters had also dealt with the fresh representations claims: and the judicial review claim had, she submitted, sought to quash the decisions of 23 July and 2 October 2012. Further, even if the decisions had gone further than simply deciding the fresh representations claims, nevertheless they still fell within the ambit of paragraph 2(i) of the Transfer Direction. Thus the Upper Tribunal had indeed had jurisdiction. That, putting it shortly, is what the argument came to.
21. For his part, Mr Manjit Gill QC (who had not appeared below) leading Mr Pretzell (who had) submitted that the Transfer Direction was focusing on the application calling into question the decision of a kind mentioned in paragraph 1 of the Transfer Direction. He submitted that this claim form (application) had not done that. In any event, he said, the application was not of a kind falling within paragraph 2 of the Transfer Direction either. Thus the application did not satisfy Condition 3: indeed it did not satisfy Condition 5 either. Accordingly there had been no power to make the order of 7 December 2012. Alternatively, even if there had been such a power by reference to s.31A(3) of the 1981 Act then the Deputy Master plainly had not exercised any discretion under that sub-section; indeed the practical reality was that – as a significant number of decisions illustrate – "legacy cases" were ordinarily dealt with by the Administrative Court.
22. Miss Broadfoot did refer us to a number of recent reported decisions, both at first instance and on appeal, which she says establish that there is no separate policy applicable to legacy cases. She pointed out that the law is to be taken as declaratory in effect and that it matters not that such a full body of decisions was not available to the Upper Tribunal Judge at the time of her decision. She went on to submit that the substantive decision to refuse permission can be seen to be inevitably right. But in my view all this cannot, in the circumstances of this case, displace the obligation of this court to assess whether or not the Upper Tribunal Judge had jurisdiction to pronounce on the matter as she did. The jurisdiction point is indeed, and as the hearing below and before us proceeded, a point requiring decision as a preliminary issue.

Decision

23. I am compelled to the conclusion that Mr Gill is right in his challenge on jurisdiction.
24. As I read the Transfer Direction (as it then stood) it is focusing on the decision which the application in question is challenging. I readily accept that, in the present case, the decisions in the two decision letters are, partly, on the basis that the further submissions advanced as a human rights or asylum claim are not significantly different from material previously considered. But these were not the decisions the appellant was calling into question. Rather, by his claim form, he was calling into question the decision to reject his claim under the legacy scheme.
25. In this regard I am not able to agree with the assessment of the Upper Tribunal Judge that the decisions were not decisions by reference to the legacy "policy" (as asserted by the appellant). I think that Miss Broadfoot was plainly correct in her concession in this regard. But more than that I think, reading the claim form as a whole, that the challenge being raised was solely as to the decisions to reject the legacy policy claim: such a decision was plainly made in the annexed Consideration of Submissions in the letter of 23 July 2012, as subsumed in the discussion under paragraph 353B and as confirmed by the reference to the legacy scheme in the letter of 2 October 2012.
26. When one reads the claim form with its annexed detailed grounds nowhere is there a claim challenging (calling into question) the decision to refuse to accept the further representations under paragraph 353. This court has considerable experience of such claims: suffice it to say, this claim form in no way replicates the norm of such claims, as Miss Broadfoot frankly accepted. The entire focus of the many paragraphs of the Grounds is on, and solely on, the asserted "legacy policy" and asserted breach of it. There is no mention of paragraph 353; the references are to paragraphs 395C and 353B. The authorities and materials cited in the Grounds all relate to legacy cases. The submissions advanced are all by reference to an asserted entitlement under the legacy scheme. Indeed, the concluding summary paragraph (paragraph 32) of the claim form commences with these words:

"In summary, the claimant relies on the following grounds in relation to his submission that he should be granted ILR or DLR under the legacy."

It is true that one of the ten such grounds then listed rather broadly refers to Article 8: but taken as a whole, the Grounds plainly relate to a challenge to the decision under the legacy scheme. That also accords with the remedies sought by the claim. Moreover, and in fairness to the appellant's lawyers, that is always the case they presented to the Upper Tribunal. For example, in the appellant's renewed grounds in the Upper Tribunal dated 8 April 2013, it is unequivocally stated "the grounds for judicial review were not based on a fresh claim but solely on legacy". That, in my view, was an accurate statement.

27. That means, as I see it, that this application did not fall within paragraph 1 of the Transfer Direction: because the decision actually being challenged by the application for judicial review was not of the sort there specified. If it did not fall within paragraph 1 it further follows that it did not fall within paragraph 2: because that is predicated, by its opening words, on there first being an application calling into question a decision of the sort described in paragraph 1. It also, I apprehend, follows not only that Condition 3 was not satisfied but also that Condition 5 was not satisfied either.
28. I should add that even if one were to accept (although I do not) Miss Broadfoot's submission that the application contained in the claim form was a "hybrid" application – viz. challenging the treatment by the decision letters both of the fresh representations issue and the legacy scheme issue – I still would have had doubts as to whether paragraph 2 of the Transfer Direction was satisfied. In this regard Miss Broadfoot, while accepting that paragraph 2(ii) did not assist her in this case, said that this (asserted) hybrid claim came within paragraph 2(i).
29. I can see the point. The letter of 23 July 2012 had said that the appellant's "removal from the United Kingdom remains appropriate"; and that moreover is to be set in the context of his previous claim having been rejected in 2003. That would give a broad, but by no means necessarily unacceptable, meaning to the words "decision to remove" as used in paragraph 2(i) of the Transfer Direction. But as against that there is this consideration. A "decision to remove" tends to have a formal meaning (with, under the legislation, formal requirements and potentially significant consequences) in the context of immigration and asylum matters. Indeed under paragraph 395C of the Immigration Rules – in force at the time this Transfer Direction was made – the consideration of exceptional circumstances there set out is expressly predicated on the basis of a prior "decision to remove under section 10 [of the 1999 Act]" being given. (Miss Broadfoot expressly accepted in argument that in the present case the decisions of 23 July 2012 and 2 October 2012 were not decisions to remove under s.10). That consideration might tend to suggest that the phrase was being used in this more formal sense in paragraph 2(i) of the Transfer Direction.
30. However, since the point does not fall for decision and since this version of the Transfer Direction has now been replaced, I think it better not to express a concluded opinion on the point. I simply note the potential difficulty.
31. Finally on this aspect of the case I record that Miss Broadfoot in oral argument made brief reference to s.19(3)(b) of the 2007 Act. When asked if she was seeking to construct an argument by reference to that, she said that she was not. So I say nothing more on it.

Conclusion and remittal to the High Court

32. I thus would hold that the objection to the jurisdiction of the Upper Tribunal was and is well-founded. In such circumstances, the application must be dealt with in the Administrative Court. I only add that the Upper Tribunal Judge in terms had said that she would have remitted the matter to the Administrative Court had this decision involved a legacy decision. Since (contrary, with respect, to her assessment) it did, such a result would accord with her own inclination. That said, the whole matter has in the result dragged on for too long. Accordingly, an oral hearing of the permission application, of which notice is to be given to the Secretary of State, should be convened before a High Court Judge in the Administrative Court as a matter of expedition.
33. I have not overlooked Miss Broadfoot's very powerful arguments on the substantive merits – or, as she would say, lack of merits – of the appellant's case. Indeed, as she would say, it is now established that there is no separate policy which falls to be applied to a case of this sort and, further, that delay or poor administration does not of itself render a decision conspicuously unfair so as to be unlawful. She cited a formidable body of authority for these purposes. Cases cited to us included (among others) Geraldo [2013] EWHC (Admin) 2763, from which permission to appeal was refused by the Court of Appeal [2014] EWCA Civ 563; Jaku [2014] EWHC 605 (Admin); and RN (Sri Lanka) [2014] EWCA Civ 938. Perhaps appreciating the force of her arguments, Mr Gill sought to advance supplemental grounds: although whether they really confronted the difficulties is, to my mind, doubtful. However, we heard little oral argument on the point. Whether this claim has enough substance to attract a grant of permission will be a matter for the Administrative Court. I also add that relatively recently, on 28 June 2014, the Secretary of State, by the Older Live Cases Unit, has issued further decision letters with regard to the applicant, rejecting his claims. It will be for the court hereafter to decide what significance it attaches to them. The point remains, overall, that all this constitutes a matter on which the appellant was and is entitled to a decision; and that decision, given the circumstances of this particular case, has to be made by the Administrative Court, not the Upper Tribunal.
34. I thus would allow the appeal. Miss Broadfoot accepted that costs must follow the event. The respondent is to pay the appellant's costs, to be assessed if not agreed.

Lord Justice Christopher Clarke

35. I agree.

Sir Bernard Rix

36. I also agree.