England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM High Court QBD Administrative Court
Mr Justice Turner
CO/1600/2012

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

Lord Justice McCombe:

(A) Introduction

1. This is an appeal from the order of Turner J of 21 February 2013 dismissing a claim for judicial review brought by Mr Mohammed Iqbal Khan ("the Appellant") in respect of a decision of the Secretary of State for the Home Department ("the Respondent") of 15 March 2012 refusing to revoke a deportation order made against him on 6 February 2012^[1]. In accordance with section 96(1) of the Nationality Immigration and Asylum Act 2002 ("the 2002 Act"), the Respondent also certified that a) the Appellant was notified of a right of appeal against another immigration decision; b) that the claim or application to which the Respondent's decision related relied upon a matter that could have been raised in an appeal against the other decision; and c) that in the Respondent's opinion, there was no satisfactory reason for that matter not having been raised in an appeal against the other decision.
2. The result of that certificate was that the Appellant had no right to appeal to the First-tier Tribunal under section 82 of the 2002 Act. In the judicial review the Appellant challenges the Respondent's entitlement so to certify.
3. Section 96(1) and (2) of the 2002 Act provide as follows:

"(1) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies-

(a) that the person was notified of a right of appeal under that section against another immigration decision ("the old decision") (whether or not an appeal was brought and whether or not any appeal brought has been determined).

(b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and

(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision.

(2) an appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies-

(a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,

(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and

(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice. "

It is section 96(1) that is relevant to the present case, but it is convenient to set out section 96(2) also, in view of an important argument for the Appellant to be addressed below.

4. The appeal raises once again a question as to the proper construction of the labyrinthine provisions of Part 5 of the 2002 Act relating to immigration and asylum appeals. The short question for this court, in the end, is whether new material advanced by the Appellant in resistance to his deportation, and rejected by the Respondent in her decision in March 2012, was or was not truly "a matter" that could have been raised in his earlier unsuccessful appeal to the Tribunal against the Respondent's decision to make the deportation order against him, within the meaning of section 96(1). If it was, the Respondent was entitled to certify; if it was not, she was not.
5. It is necessary first to say a little about the background facts.

(B) Background Facts and Procedural History

6. The Appellant is a national of Pakistan who entered the UK as the spouse of a British citizen on 3 October 2004. His initial entry clearance expired on 9 September 2006 and he did not make further application to regularise his presence in the UK until 25 January 2008. However, he was thereafter granted indefinite leave to remain in the country, on 3 November 2009, as the spouse of his British wife. He applied for citizenship on 8 October 2010 but this was refused in view of his presence in the country without the appropriate leave during the 3 year qualifying period.
7. As appeared before the First-tier Tribunal in due course, the subsistence of his relationship with his wife became somewhat doubtful. He was separated from her when, on 27 May 2011, he was sentenced in the Crown Court at Stafford by the Recorder of Stafford (His Honour Judge Tonking), on pleas of guilty, to a total term of 14 months imprisonment for dangerous driving and doing an act tending to and intended to pervert the course of public justice, committed respectively on 16 and 20 February 2011.
8. It appears that on 16 February 2011 he had driven his van into someone with whom he had had an altercation and that he had subsequently attempted to bribe the victim with a view to getting the complaint about the incident withdrawn.
9. On 28 June 2011, in the light of the conviction and sentence, a notice of liability to deportation was served. Representations in resistance to the making of a deportation decision were made by his legal representatives. However, these were rejected. The Appellant appealed to the First-tier Tribunal on 22 September 2011.
10. He was detained by the Border Agency on the following day on expiry of the custodial element of his sentence.
11. The appeal against the decision to make a deportation order was heard by the First-tier Tribunal on 9 November 2011. The ground of appeal was that the removal of the Respondent would breach his rights, and those of his wife and three children (then aged 6, 4 and 2), under Article 8 of the European Convention on Human Rights. It was submitted that any removal would be a disproportionate interference with those rights.
12. Oral evidence was given by the Appellant and his wife, and one other witness, as to the state of their relationship and the circumstances of their children. For the Respondent, it was submitted that the evidence given by the Appellant and his wife was internally inconsistent and at variance with known social services concerns about physical and emotional abuse of his wife, the children's school attendance and the doubts as to the contacts maintained with them by the Appellant. The Appellant was maintaining that he and his wife had become reconciled and that his relationship with the children was a loving and caring one.
13. The Tribunal did not accept that the Appellant or his wife were credible witnesses. The judges were of the view that the family relationships were not as either had maintained in his/her evidence. It considered the issue of proportionality of the decision to deport on the facts as found, in the context of Article 8, under a number of headings. The decided cases were recited (including ZH (Tanzania) v SSHD [2011] UKSC 4). It was held that the removal of the Appellant would not be disproportionate and the appeal was dismissed. The decision was promulgated on 21 November 2011.
14. An application for permission to appeal to the Upper Tribunal was refused by the First-tier Tribunal on 7 December 2011 and by the Upper Tribunal on 25 January 2012. The deportation order was signed and served on 6 February 2012 and the Appellant's deportation to Pakistan was fixed for 9.30 a.m. on 15 February. On 12 February further submissions on the Appellant's behalf were sent to the Respondent, this time accompanied by a report of the same date from a Mr J. Abdullah-Zadeh, an independent social worker. The report spoke of the importance to the children of contact with their father and expressed views as to the likelihood of re-offending by the Appellant. It was argued that if this report had been available to the Tribunal its decision would have been different.
15. In response to the submissions, in the letters of 14 February and 15 March 2012, the Respondent, through the Border Agency, wrote as follows (quoting from the second letter):

"With regards to the report from Mr Abdullah-Zadeh, you have not explained why this or a similar report could not have been presented at your client's appeal hearing for consideration given that the Secretary of State had already expressed doubts as to whether family life was subsisting between your client and his children. In addition the report from Mr Abdullah-Zadeh does not mention the previous concerns of the Social Services as highlighted by the Immigration Judge in his determination of 17 November 2011 and therefore there is no indication of whether Mr Abdullah-Zadeh would have been aware of these concerns when he made his assessment. It is also noted that Mr Abdullah-Zadeh is an independent Social Worker and was instructed by yourselves to conduct his assessment. You have also not explained why your client did not simply seek to obtain the views of Social Services given that they were already involved with the family and had indicated that they were willing to consider a further assessment of the case should your client be returned to the family home. It is unclear what qualifications Mr Abdullah-Zadeh has to comment on your client's risk of re-offending but he concludes that his risk of re-offending is low, this simply confirms the view of the Immigration Judge at paragraph 43 of his determination. It is therefore not accepted that had the Immigration Judge had sight of Mr Abdullah-Zadeh's report at the appeal hearing, he would have come to a different conclusion. In addition, the findings of the Immigration Judge have been recently upheld by the Upper Tier Tribunal on 25 January 2012."

The criteria for the application of section 96(1) were addressed and the Respondent certified accordingly.

16. These proceedings for judicial review were issued on 14 February and, on a telephone application made at 10.10 p.m. that day to the duty judge (Dobbs J), the Respondent was restrained from removing the Appellant from the UK until the determination of the proceedings or further order. He has remained in this country since that time.
17. On 22 March 2012 permission to apply for judicial review was refused by Mr Phillip Mott QC (as a Deputy Judge of the High Court) on consideration of the papers. However, on the renewed application on 15 August 2012, permission to apply was granted by Dobbs J "on the point of certification". An issue arises before us as to the extent of that grant of permission and whether or not Turner J was right to say, "…permission was limited to a single issue of interpretation of section 96". It is now submitted for the Appellant that the permission was not limited and that the judge should also have considered the exercise of the discretion to certify, which had been challenged by the Appellant in his grounds. Further, it is submitted that whatever the ambit of the application before the judge we should consider afresh the lawfulness or otherwise of the exercise of the Respondent's decision to certify.

(C) The Judgment

18. In his judgment of 21 February 2013, the learned judge reviewed the important authorities relating to the question of repeat claims to challenge immigration decisions made by the Respondent. To some of these I shall return below. However, I think that the gist of the judge's conclusion is to be found in paragraphs 9 and 10 of the judgment as follows:

"9. I accept the argument raised on behalf of the defendant in this case, that the distinction in this passage is between an argument that suggests that it can only include evidence in terms of the definition of "matter" in contrast to new grounds and evidence. I accept the submissions made by Mr Blundell that that is strongly supportive of his interpretation of "matter" so as to include evidence. He rightly points out that if any special meaning were to be given to "matter" within section 96 then one might expect such meaning to be incorporated in a definition to be found either in the glossary or, alternatively, in a freestanding provision. No such definition is to be found within the text of the Act. Furthermore, he points out that "the matter" is used in the context of section 96 in an unadorned way in contrast to section 85, and invites me to conclude that it should be given a broad and natural meaning. I accept that. I reject the suggestion that "matter" as defined generally should be taken to exclude "evidence" simply as an issue of construction of the English language. In my view, it is a noun which is apt to include as broad a section of relevant material, however it is categorised, as possible. I also take the view that if one were to give a narrow definition to "matter", there would be endless difficulties in relation to whether something should be categorised as "evidence" or "an issue" or a combination of the two. I do not regard that it is likely to have been Parliament's intention that those sort of issues should be generated and I cannot conceive what useful function would be achieved by that distinction.

10. In all the circumstances, therefore, I am persuaded that "matter" should be given a broad interpretation within the scope of this subsection. I rule, accordingly, that, since that is the only basis on which permission was granted, this application must fail."

(D) The Appeal and my conclusions

19. The judge refused permission to appeal on application made by counsel immediately after judgment. However, permission was granted by this court, on an application on the papers, by Sir Stanley Burnton, on 18 July 2013.
20. The Appellant argued that the judge's construction of section 96 was wrong. Through Mr Raza Husain QC (who did not appear below, and with whom Mr Abdurahman Jafar and Mr Chris Buttler appear), the Appellant submitted that when section 96(1)(b) of the Act speaks of the new claim relying upon "a matter that could have been raised in an appeal against the old decision" it means only reliance on a new "ground" or "issue" and not new "evidence" in support of an old "ground" or "issue". He also argued that, even if the new material (the new social worker's report) was "a matter" that could have been raised on the first appeal, the Respondent should not have exercised her discretion to certify under the section. It was submitted that the judge should have considered that second point and should, if the first ground failed, have upheld the Appellant's claim on that ground. Alternatively, as I have said, it was submitted by Mr Husain that we should revisit this point now.
21. At the hearing of the appeal, after hearing submissions, we announced our decision that this second point could not be re-opened before us. For my part, I reached that conclusion for the following reasons.
22. In my judgment, the learned Judge was quite correct to construe the permission to apply, which was granted by Dobbs J, as he did.
23. First, if Dobbs J had intended to grant permission to apply on all the grounds advanced, it would have sufficed to say that permission to apply for judicial review was granted. That would have been the customary form of order in such circumstances, clearly encompassing all the grounds advanced. Paragraph 1 of the Order of 15 August 2012 was not so worded; it was expressly limited to "the point of certification". This was understood to be a limited grant of permission since in his skeleton argument of 28 August 2012, Mr Jafar (who has appeared for the Appellant throughout these proceedings) stated in paragraph 1:

"On 15 August 2012 Mrs Justice Dobbs granted permission for Judicial Review on the basis that:

The Defendant arguably erred in law in treating "matters" as to (sic) referred to in s.96 of NIAA 2002 to mean evidence as opposed to issues".

24. The argument was, in my view, confined to the construction of section 96 and made no attempt to address the second ground that had been advanced at the permission stage.
25. Secondly, the judge was obviously of the impression that the grant of permission had been limited. He said so twice in his judgment and made no reference to any argument advanced to him that the permission granted had been wider. Nor was there any renewed application before him for permission to apply on an additional ground. If there had been such an argument, no doubt the judge would have addressed it in his judgment.
26. Thirdly, we have the benefit of a transcript of the short proceedings in court after judgment was delivered by Turner J. There was no suggestion by Mr Jafar, in the exchanges between counsel and the judge, that the judge had somehow omitted to deal with any further point that was live and argued before him. Moreover, in making his application to the judge for permission to appeal, Mr Jafar argued only that the point of construction was of general importance. He did not suggest that there was any further residual point as to the exercise of the Respondent's discretion which should be the subject of an appeal.
27. In my judgment, it is entirely clear that the only live issue before Turner J was as to the true construction of section 96. However, Sir Stanley Burnton did not limit his grant of permission to appeal to that one point, saying "the second ground will take little time of the Court". I agree. This second point can indeed be shortly dealt with.
28. The point as to the exercise of the Respondent's discretion under section 96, was not the subject of permission to apply for judicial review; it was not argued before the judge and should not therefore, in my view, be considered by this court, absent exceptional circumstances which I do not see to be present in this case.
29. Mr Husain argued that the Respondent would not be prejudiced in any way if we were to permit the additional point to be argued, as it was a pure point of law requiring no further elucidation on the facts: see Pittalis v Grant [1989] 1 QB 605.
30. Mr Blundell for the Respondent disputed that. He said that if the matter had been live before the judge, his client might have wanted to adduce further evidence or even to make a fresh decision.
31. In my judgment, this court should be wary of permitting grounds to be argued for which an application for permission to apply for judicial review has been refused and not renewed, and where the point at issue has not been argued before the court below. To do otherwise would only serve to undermine the important filter of the permission stage in judicial review proceedings. In addition, I accept Mr Blundell's argument that we should not go into the matter further when the Respondent had no opportunity to consider whether or not to present additional material in support of the exercise of her discretion to the judge below.
32. I turn to the real point in the appeal: the point of statutory construction.
33. In support of his submission on this point. Mr Husain relied upon the terms of section 96 as originally enacted and the apparent intention of the parliamentary sponsors not to change the law.
34. The original section as enacted provided as follows:

"96. Earlier right of appeal

(1) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought or continued if the Secretary of State or an immigration officer certifies-

(a) that the person was notified of a right to appeal under that section against another immigration decision (whether or not an appeal was brought and whether or not any appeal brought has been determined),

(b) that in the opinion of the Secretary of State or the immigration officer the new decision responds to a claim or application which the person made in order to delay his removal from the United Kingdom or the removal of a member of his family, and

(c) that in the opinion of the Secretary of State or the immigration officer the person had no other legitimate purpose for making the claim or application.

(2) An appeal under section 82(1) against an immigration decision in respect of a person may not be brought or continued if the Secretary of State or an immigration officer certifies that the immigration decision relates to an application or claim which relies on a ground which the person-

(a) raised on an appeal under that section against another immigration decision,

(b) should have included in a statement which he was required to make under section 120 in relation to another immigration decision or application, or

(c) would have been permitted or required to raise on an appeal against another immigration decision in respect of which he chose not to exercise a right of appeal.

(3) A person may not rely on any ground in an appeal under section 82(1) if the Secretary of State or an immigration officer certifies that the ground was considered in another appeal under that section brought by that person."

35. Mr Husain submitted that this clearly indicates that the focus of that original enactment was upon "grounds" of appeal and not upon evidence in support of grounds of appeal.
36. We were then taken to the explanatory notes to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 which introduced the present version of section 96. The notes were in these terms:

""Section 30 amends section 96 of the Nationality, Immigration and Asylum Act 2002. Section 96 sets out when a new claim or application may be certified under the 'one-stop' system. Certification prevents an appeal being lodged against the decision on the new claim or application. The revision has the effect of removing provisions for certifying appeals after they have been lodged; those provisions are no longer needed. It also clarifies the circumstances in which a certificate may be issued. There are now two options:

(a) where the person was notified of a right of appeal against an earlier immigration decision, the matter being raised in the new claim or application could have been raised at that appeal, and there is no satisfactory reason for not having raised it at that appeal. It does not matter if the person did not exercise the earlier right of appeal or did not pursue it to determination, so long as they had the opportunity to do so.

(b) where the person has been given a one-stop notice under section 120 of the 2002 Act in relation to a previous immigration decision, the matter being raised in the new claim or application should have been raised in response to that notice, and there is no satisfactory reason for not having raised it in response to that notice" (emphasis added).

It was submitted that this shows that the intention was only to "clarify" the circumstances for the issue of a certificate under section 96 rather than to change them. (It is to be noticed, however, that in these notes the word "ground" is not used, but merely the word "matter" (twice)).

37. The Appellant also relies upon a statement made by the Minister when introducing the new provision in the House of Lords where he said,

"I have been waiting all day to say this because it is dead true. Amendment No.37 is a technical amendment. It adds nothing to the law; it is not a change in the law at all. It adds nothing to one-stop powers, but it clarifies how further applications are dealt with once an earlier application has been determined.

…….

The new wording for Section 96 reduces the present four options for certifying to two: where there has been a chance to appeal, or where a one-stop warning has been issued. In both cases there must be no good reason why the applicant has delayed raising the new issue, and this is what the words say, rather than the earlier reference to, 'no other legitimate purpose', and, 'in order to delay removal'."

38. We were taken also to the Oxford English Dictionary definition of "matter", in its various uses, and it was submitted that in this context the word is used in the sense of "subject of contention, dispute, litigation etc…a matter in dispute", i.e. not "evidence".
39. Perhaps most significantly, it was argued for the Appellant that in other sections of this same part of the Act, Parliament has used phrases such as "evidence about any matter" and "evidence which concerns a matter" (section 85(4)) and "any matter raised as a ground of appeal" (section 86(2)). In particular, he referred to section 96(2) and the reference to a "matter" which should have been raised in response to a notice under section 120.
40. The submission was that where Parliament intended to refer to evidence, as opposed to an issue to which evidence is directed, it said so expressly. It was further submitted that the Respondent's argument would require the word "matter" in section 96(1) to have a different meaning from the meaning required to be given to it in section 96(2). (It was on this point, as to the various uses of the word "matter" in Part 5 of the 2002 Act, that Sir Stanley Burnton granted permission to appeal.)
41. In addition to these arguments directed to the language of the section, Mr Husain submitted that, if doubt exists as to the correct construction of the section, the court should be inclined to favour his argument because to do otherwise would, first, limit the individual's right of access to an independent and impartial tribunal^[2]; secondly, because of the harsh consequences for the Appellant's children who are the object of protection under the UN Convention on the Rights of the Child; and thirdly, because of the "principle against doubtful penalisation": Bennion on Statutory Interpretation 6^th Edn. (2013).
42. At the forefront of his argument, Mr Husain placed the other provisions of the Act which, he submitted, pointed to the construction of section 96(1) that he advanced. The relevant provisions are to be found in sections 85, 86(2) and 120 of the 2002 Act. I append those provisions in an annex to this judgment.
43. Mr Husain argued that when section 85(2) refers to "any matter raised in the statement [under section 120] which constitutes a ground of appeal…", it is clearly referring simply to "grounds" or "issues", particularly when one has regard to the fact that section 120 itself imposes upon the person giving such a statement a requirement to state "reasons" or "grounds" for wishing to enter, remain in or not be removed from the UK. He argued that in these provisions "matter" cannot include evidence.
44. Section 96(2), it was submitted, supports this meaning of the word "matter". In that subsection also the word "matter" should be construed as meaning "ground" or "issue" because to do otherwise would constitute a trap for recipients of a "one-stop" notice. It would mean, he argued, that unless the recipient in his statement in response to the notice included the evidence upon which he intended to rely, he would be in danger of having his right of appeal against a new decision barred if, on an earlier application or claim, he had failed to include all evidence adduced in support of the new claim in response to the section 120 notice at the time of that earlier application or claim.
45. Mr Husain's point was that, if his construction of section 96(2) were correct, then the application of the Respondent's construction to section 96(1) would mean that the word "matter" had a different meaning in two different subsections of the same section. It would also have a different meaning to that which it has in section 85 and section 86(2).
46. Mr Husain's argument was presented with his customary skill but I do not accept it. As my Lord, Moore-Bick LJ said during argument, the word "matter" is a broad word meaning little more than "thing". Accordingly, in my view, it is necessary to see to what the particular individual provisions, using that word, are directed. It would not be surprising to find the general word having slightly different nuances of meaning in different circumstances.
47. Section 96(2) is directed particularly to attempts to raise material not raised on an earlier claim or application, when a "one-stop" notice has been served. It is specifically to that potential for abuse that it is directed. It is referring to any matter that should have been raised in response to the notice. If section 120 only requires the recipient of a notice under that section to state "reasons" or "grounds" for wanting to be in the UK he will not be prejudiced by not producing all the evidence upon which he relies in support.
48. Section 96(1) by contrast is, I consider, directed to material that could have been raised (but was not) on an actual or possible appeal against an earlier decision. On an appeal, the appellant relies upon his grounds of appeal and upon his evidence in support of such grounds. It is not surprising, therefore, to find that, if a person has failed to appeal or has lost an appeal, he should not be permitted to adduce evidence that he could have relied upon on such an appeal, but did not.
49. The two subsections are dealing with different subjects and it is not surprising, therefore, that Parliament should have used a flexible word, such as "matter", to encompass the different material that might be relied upon in each case. Nor is it surprising, to my mind, that when enacting the amended section 96 it moved away from the word "ground" and did not re-enact section 96(3) as originally drafted.^[3]
50. Again, when one looks at section 85 (2), it appears to me that it is requiring the Tribunal to consider on an appeal material (or matter) raised in response to a "one-stop notice" constituting a ground of appeal. One can envisage circumstances in which an appellant might include in his response to a notice (as one sometimes sees) "evidence", which the Tribunal regards as "constituting a ground of appeal" even if not formulated as such. The Tribunal may also consider evidence on anything (any matter) which it regards as relevant to the substance of its decision: section 86(2).
51. In my judgment, in agreement with Turner J, I think it would be surprising if Parliament in enacting section 96(1) had intended the Respondent and her officials to have to become concerned with questions whether new submissions raised by a claimant were advancing new "grounds" or new "evidence". Experience shows that frequently one cannot draw such fine lines when immigration claimants advance repeat claims. It seems to me that section 96(1) is properly directed to the advancing of new material as a whole, either grounds of appeal or evidence in support.
52. Attempts to limit, by statute or by immigration rule, repeated appeals to the Tribunals, in cases such as these, have been the subject of consideration by the courts on a number of occasions. However, on none of these occasions has the present point of construction of section 96(1) been precisely in issue. In my judgment, however, the reasoning of the courts in those cases broadly supports the construction of section 96(1) for which the Respondent contends. The dicta command considerable respect, as Mr Blundell submitted.
53. There are three primary authorities that have been brought to our attention in either the written or oral arguments of counsel: BA (Nigeria) v SSHD [2010] 1 AC 444 (26 November 2009), ZA (Nigeria) v SSHD [2010] EWCA 926 (30 July 2010) and Lamichanne v SSHD [2012] EWCA Civ 260 (7 March 2012). Dicta as to the meaning or purpose of section 96 are to be found in all these cases^[4].
54. The BA case concerned the inter-reaction of the certification powers of the Respondent in sections 94 and 96 of the Act (on the one hand) and the question of "fresh claims" considered by the Respondent under rule 353 of the Immigration Rules (on the other). It was decided by the Supreme Court that claims rejected by the Respondent, which had not been certified under either section 94 or 96, should be permitted to proceed to "in-country" appeal under sections 82 and 92, whether or not they were accepted by the Respondent as "fresh claims" under rule 353 of the Rules.
55. In ZA this court held that the Respondent is entitled to refrain from making an appealable immigration decision in response to an asylum or human rights claim which she reasonably concludes is merely a repetition of an earlier claim whose rejection has been unsuccessfully challenged in a concluded appeal.
56. In Lamichanne the court considered the question of the jurisdiction of the First-tier Tribunal in relation to matters raised by an appellant in an appeal from an adverse immigration decision of the Respondent which he has not previously raised, in a case in which no notice^[5] has been served by the Respondent under section 120 of the 2002 Act. The court concluded that, where no such notice had been served, the appellant may not raise before the Tribunal any ground for the grant of leave to remain different from that which was the subject of the Respondent's decision under appeal.
57. In BA both Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood made observations as to the purpose of section 96 of the Act. At paragraph 11, Lord Hope said,

"Section 96 removes the right of appeal altogether if the Secretary of State or an immigration officer certifies that the person has dealt with or ought to have dealt with the issue in an earlier appeal." (Emphasis added)

Later, at paragraph 29, he said,

"The new system contains a range of powers that enable the Secretary of State or, as the case may be, an immigration officer to deal with the problem of repeat claims. The Secretary of State's power in section 94(2) of the 2002 Act to certify that a claim is clearly unfounded, if exercised, has the effect that the person may not bring his appeal in-country in reliance on section 92(4). The power in section 96 enables the Secretary of State or an immigration officer to certify that a person who is subject to a new immigration decision has raised an issue which has been dealt with, or ought to have been dealt with, in an earlier appeal against a previous immigration decision, which has the effect that the person will have no right of appeal against the new decision." (emphasis again added).

58. In the same case, Lord Brown said (at paragraph 46),

"Parliament in the 2002 Act not only made express provisions to deal with abusive claims but split up different aspects of the possible abuse between sections 94 and 96. Sir Thomas Bingham MR in Ex p Onibiyo [1986] QB 768, 783-784 had said:

"The acid test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim."

"Excluding material on which the claimant could reasonably have been expected to rely in the earlier claim" is now expressly dealt with by section 96. As already explained, ordinary repeat claims fall to be excluded under section 94. (emphasis again added)."

59. Lord Hope can be seen to have used the word "issue". Whereas Lord Brown used the wider word "material".
60. In my judgment, Lord Brown's express reference to the splitting of different aspects of possible abuse in the section assists the Respondent's argument, as Mr Husain frankly recognised. His judgment attracted the support of Lord Scott of Foscote and Lord Rodger of Earlsferry, and for my part I do not believe that that support is undermined by Lord Scott and Lord Rodger expressing their agreement as being as to the "comments" or "additional observations" of Lord Brown. Mr Husain sought to argue that the use of these words by Lord Scott and Lord Rodger somehow limited the force of the agreement indicated by their Lordships. I do not accept that.
61. In the 1986 case, from which Lord Brown quoted the judgment of the Master of the Rolls, the acid test identified was the comparison of the old claim with the new and whether the new claim raised sufficiently different material from the old to admit of a realistic prospect of success. Lord Brown's "split" identifies two classes of case: the first where new material is advanced, and the second "ordinary repeat claims". It seems to me that ordinary repeat claims might be ones where the same "issues" are raised. On the other hand, material which the claimant could reasonably have been expected to rely on in an earlier claim must, I think, include "evidence" that could have been relied upon in that earlier claim.
62. In ZA Lord Neuberger of Abbotsbury MR (as he then was) identified the problem to which the legislation is addressed in these terms:

"Summary of the issue between the parties

3. Immigration and asylum have been the subject of a large and increasing, almost bewildering, volume of legislation (both statutory and regulatory), and of litigation (both in tribunals and courts) over the past forty years. One of the problems that has had to be addressed is that of renewed claims, that is claims for asylum, leave to remain and the like, made by people who have already had their claims rejected. On the one hand, it is only fair that the opportunity to make such renewed claims should be available to those who have good reasons for making them – normally because of a significant and unforeseen change in circumstances since a previous claim was made and rejected. On the other hand, it must be right to shut out renewed purported or actual claims which either raise no new grounds or are hopeless."

63. It might be said, taking that one passage alone, that the Master of the Rolls was only concerned with new "issues" which were self-evidently hopeless, rather than with new evidence might reasonably have been adduced in support of an earlier appeal. However, in his later examination of sections 94 and 96, Lord Neuberger said this:

"27. If further submissions on analysis merely repeat a claim which has already been made, it is a perfectly normal use of language to say that they do not really amount to a new claim, but should be treated as being no more than an attempt to revive a previous unsuccessful claim. Nonetheless, I accept that the description of a "clearly unfounded" claim in section 94(2) is capable, as a matter of language, of being applied to such further submissions which, on analysis, raise no new points over and above a previous, rejected, claim. However, given that the 2002 Act was passed at a time when rule 353 existed, I would incline to the view that it was not intended to apply to such further submissions which do not amount to a fresh claim.

28. Further, there appears to me to be some force in the contention that section 94(2) is unlikely to have been directed to further submissions which do not raise new issues over an earlier claim, when a claim which relies on evidence which should have been produced to support an earlier claim is expressly covered in the 2002 Act in section 96(1) (and claims which included, but extended further than, previous unsuccessful claims, were expressly covered in section 96(3)). However, I also accept that there is force in the point that Part 5 of the 2002 Act was intended to be a complete code.

29. As for section 96 itself, subsection (1) is clearly concerned with different territory from rule 353: the section is directed to new points which could and should have been raised in the claimant's original, rejected, claim – an administrative procedural equivalent of Ladd v Marshall [1954] 1 WLR 1489 – whereas rule 353 is directed to points which were raised in the claimant's original, rejected, claim – an administrative procedural equivalent of res judicata. As for the original section 96(3), it is of some interest, because it dealt expressly with renewed claims which included a ground which was identical to that raised in a previous claim which had already been considered. It was complementary to rule 353 as it concerned renewed claims which included such a ground, but, as I see it, also included other grounds which had not been raised in a previous claim. Section 96(3) operated by requiring such a renewed claim to be considered as a fresh claim, while enabling the Secretary of State to prevent an appeal on the previously raised ground. As mentioned, it tends to support the view that section 96, unlike section 94, is and was concerned with renewed claims which are defective because of the existence and contents of a previous claim by the same claimant."

64. In Lamichanne, Stanley Burnton LJ said this on section 96 of the 2002 Act:

"37. It is possible to arrive at some distinction between the matters to which section 96(1) can apply and those to which subsection (2) can apply. For example, on an appeal against a refusal to extend leave, an appellant will give reasons why he contends that he should be granted the extension of his leave, but he is not bound to give reasons why he should not be removed, whereas section 120(2) extends to such reasons. One can interpret "matter" in section 96(1) as including both a new ground and evidence, and conclude that in practice in that subsection it can only include evidence. However, these are such recondite distinctions, leaving such little scope for subsection (1)(c), that I have difficulty in believing that Parliament intended the statutory machinery to work in this way. On the other hand, if an applicant is free to raise any new matter in his appeal, whether or not a section 120 notice has been served, section 96(1) would have real scope and practical utility. But, if so, section 120 would have little purpose."

It seems that the learned Lord Justice was perhaps inclined to think that section 96(1) was not dealing with "new evidence" cases, in view of the use of the word "matter" in, for example, section 85 - the point advanced by Mr Husain. However, it seems that there was no reference in that case to Lord Neuberger's observations in ZA quoted above. In particular, there was no reference to Lord Neuberger's Ladd v Marshall analogy.

65. I think that it must have been the intention to prevent claimants from advancing on a new appeal new points and/or new material in aid of old points which might reasonably have been advanced in a previous appeal. The mischief identified by Lord Neuberger in paragraph 3 of his ZA judgment would be met by such an interpretation and he seems to have clearly understood section 96(1) to be read in this sense when he said (at paragraph 29) that it was the administrative procedural equivalent of Ladd v Marshall [1954] 1 WLR 1489. The rule in Ladd v Marshall is, of course, directed to the criteria for the admission of fresh evidence on ordinary civil appeals. Other procedural rules govern the ability to raise fresh "issues" in such appeals.
66. Turning to matters outside the interpretation of the words of the statute, I do not consider that the Parliamentary materials assist our consideration of this question of construction. The explanatory notes and the Minister's statement merely refer to clarification of the certification power and there is no reference to the distinction between "issues" and "evidence" that is now sought to be drawn.
67. As Mr Blundell submitted in his written argument, the Parliamentary record does not "decisively" resolve the point. There was nothing in the Minister's statement addressing the proper meaning of the word "matter" or why the word "ground" had been removed from the section. Moreover, there can be no doubt that the wording of the present section 96 is in fact significantly different from the section as initially enacted. As the Minister said, the object was to make the process easier for caseworkers to operate consistently and for lawyers to understand what had been done. While the latter aim has perhaps not been met, as this case illustrates, nonetheless, if the Respondent is correct, section 96(1) does obviate the need for caseworkers to agonise about whether they are confronted by new issues or new evidence. Equally consistent with the Minister's statement the "one-stop powers" were not, I think, added to and the previous four options in the old Act were reduced from four to two in the new.
68. Next, I am not persuaded that the question of shutting out an individual's access to an impartial tribunal (Saleem's case (supra)) really arises here in quite the same way as it did in that case. Saleem's case involved the potential loss of a right of appeal by the application of procedural rules concerning "deemed service". The Appellant here has not been shut out in that way. He has had one full appeal to an independent tribunal and has had his application for permission to appeal to a higher tribunal considered on no less than two occasions. The issue that he wished to raise was the same as that considered on the first appeal, namely the question whether his rights and/or those of his family under Article 8 were being breached. He merely wished to bolster by new evidence the case that he had lost on the first occasion. That does not seem to me to be an exclusion of a right of appeal of the same quality at all.
69. I recognise, however, that the first appeal in this case was against the decision to make a deportation order. The new appeal would be against a decision not to revoke it. As Mr Husain correctly submitted, the making of each decision carries with it a separate right of appeal under section 82: see section 82(1)(j) and (k). However, the question is whether the construction advanced by the Respondent infringes the requirement that unimpeded right of access to a court has been expressly authorised or arises by necessary implication. In my judgment, for the reasons already given for accepting the Respondent's arguments on construction, the express authorisation has been given in the present circumstances.
70. For the same reasons, I do not consider that the principle against doubtful penalisation arises in the present case.
71. Finally, I do not accept the suggestion that the Respondent's decision in issue "serves to preclude any independent scrutiny of the evidence of harm to the Appellant's children" (Appellant's skeleton argument, paragraph 18). The circumstances of the children were given full independent scrutiny on the first appeal, at which the Appellant and his wife gave evidence which the Tribunal considered alongside the other evidence available which is recorded in the appeal decision. The deemed application to revoke the deportation order was made only three months after the question of Article 8 rights of this family had been extensively dealt with by the Tribunal on written and oral evidence. The only change in circumstances was the new social worker's evidence on the very same issue as before. That evidence had the significant limitations identified in the Secretary of State's decision letter.

(E) Conclusion

72. For these reasons, I consider that the judge below was correct to dismiss the claim for judicial review and I would dismiss the appeal.

Lord Justice Tomlinson

73. I agree.

Lord Justice Moore-Bick

74. I also agree.

Appendix

Section 85. Matters to be considered

(1) An appeal under section 82(1) against a decision shall be treated by the [the Tribunal] as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).

(2) If an appellant under section 82(1) makes a statement under section 120, [the Tribunal] shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.

(3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.

(4) On an appeal under section 82(1) [83(2) or 83A(2)] against a decision [the Tribunal] may consider evidence about any matter which [it] thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.

(5) [(5) But subsection (4) is subject to the exceptions in section 85A.]

Section 86 Determination of appeal

(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.

120 Requirement to state additional grounds for application

(1) This section applies to a person if-

(a) he has made an application to enter or remain in the United Kingdom, or

(b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him.

(2) The Secretary of State or an immigration officer may by notice in writing require the person to state-

(a) his reasons for wishing to enter or remain in the United Kingdom,

(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and

(c) any grounds on which he should not be removed from or required to leave the United Kingdom.

(3) A statement under subsection (2) need not repeat reasons or grounds set out in-

(a) the application mentioned in subsection (1)(a), or

(b) an application to which the immigration decision mentioned in subsection (1)(b) relates.

Note 1   I refer here to the final decision made and challenged, which we were told superseded earlier decisions of 9 and 14 February 2012 in which the Respondent rejected submissions against removal directions.    [Back]

Note 2   “…infringement of such a right must be either expressly authorised by Act of Parliament or arise by necessary implication from an Act of Parliament”: per Roch LJ in R (Saleem) v SSHD [2000] 4 All ER 814, 820.    [Back]

Note 3   We were referred to the Immigration Bill now before Parliament in which it seems that the proposal may be to return to the word “ground” in the parallel new provision. However, we were also told that a comprehensive revision of Part 5 of the Act is envisaged and we have not seen the whole Bill on this topic. In any event, such a change cannot control the meaning of the Act with which we are concerned.    [Back]

Note 4   The last of these was not, however, the subject of oral argument before us.    [Back]

Note 5   A “one-stop notice” as it has come to be called.    [Back]