England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		23rd February 2005

1. MR JUSTICE HUGHES: This application for judicial review discloses a complex procedural tangle, but it raises a number of significant points on the inter-relation between immigration decisions and complaints of discrimination contrary to the Race Relations Act 1976.
2. The claimant lives in Bangladesh but her parents are settled here in the United Kingdom. She applied to the entry clearance officer in Dhaka for visas for herself and two of her five children. Her case was that she wished to visit her parents for a limited period. Her husband and the other three children were going to remain in Dhaka. The entry clearance officer did not accept that she genuinely intended to limit her stay as a visitor as she said she would, and he refused the applications.
3. The claimant appealed under the Nationality, Immigration and Asylum Act 2002 to the Adjudicator. Before the Adjudicator the lawyer representing her, in addition to asking the Adjudicator to believe her, took the separate point that the entry clearance officer's reason disclosed an unlawful discriminatory approach contrary to the Race Relations Act. In essence, he contended that in this application -- and for that matter in other applications -- the entry clearance officer had made sweeping generalisations about Bangladeshi applicants.
4. If that contention had been made out, it would have provided a discrete ground on which the claimant's appeal might be allowed. That is expressly provided for by section 84(1)(b) of the 2002 Act. In the light of what has occurred I ought, perhaps, plainly to say that this discrimination complaint has never yet been adjudicated upon, at least in relation to this claimant, and it is not my task here to say whether it was well-founded or not. But the present application for judicial review stems directly from the fact that it has not been adjudicated upon. What happened was that the Adjudicator believed the claimant in her assertion that she wished to make a genuine visit for a limited period, and the Adjudicator allowed the appeal on that ground. The Adjudicator did not deal with the discrimination ground at all.
5. The Adjudicator also omitted, it would seem by pure oversight, to make it clear that she had allowed the appeals of the children as well as that of the claimant. That, in the end, probably boiled down to little more than the omission of the children's names from the title of the adjudication.
6. The claimant applied to the Immigration Appeal Tribunal for permission to appeal on both points, that is to say, the omission of the children and the failure to deal with the discrimination ground. Leave to appeal was granted in relation to the children point but refused in relation to the discrimination point. However, in the meantime, the spirit of the Adjudicator's decision that the claimant's application was a genuine one was recognised by the Home Office and visas were granted to her and also to her two children. Those visas constituted leave to enter the United Kingdom for all three. That brought into play section 104(4) of the 2002 Act:

"An appeal under section 82(1) shall be treated as abandoned if the appellant --

(a) is granted leave to enter or remain in the United Kingdom; or

(b) leaves the United Kingdom."

7. Leave to enter having been granted, the Immigration Appeal Tribunal took the view in July of 2004 that the appeal must be treated as abandoned. It published a notice to that effect on 15th July. The present application for judicial review is brought by way of challenge to that notice.
8. The claimant complains that although she has the immigration result that she wanted, she has been deprived of the right to have her discrimination complaint determined. On her behalf, Mr Chatwin contends that section 104(4) should be read as having no application when, notwithstanding the grant of leave to enter, an appeal on a discrimination point remains undecided. The appeal should not, he says, have been treated as abandoned, and if it had not been he could then have challenged by way of statutory review the refusal to give leave on the discrimination point.
9. The first question is: "Was there an error by the Adjudicator?" The answer to that is: Yes. Section 86 of the 2002 Act provides by subsection (2) that the Adjudicator must determine any matter raised as a ground of appeal. It is, accordingly, not sufficient to allow the appeal on one ground and omit to decide another.
10. The discrimination ground is, as I have said, specifically made a distinct ground of appeal by section 84(1)(b). It is true that it was not raised in the claimant's self-written grounds, but very full notice of the point was given in writing from the Home Office about a month before the hearing. The point was also put in the foreground of a clearly written skeleton argument which was presented to the Adjudicator. I ought to say in passing, therefore, that the acting Vice President of the Immigration Appeal Tribunal, when later refusing leave to appeal on the discrimination point, fell into error in saying that the point had not been raised as an issue. He may have been led astray by the fact that neither the original self-written grounds nor the Adjudicator's decision, which are no doubt what he saw, made any reference to it.
11. Next, it is necessary to examine the law relating to the determination of discrimination complaints which arise in the course of immigration applications. Section 19B of the Race Relations Act 1976 makes it unlawful for a public authority, in carrying out any of its functions, to do any act which constitutes discrimination. Section 27(1A) of the same Act expressly applies section 19B to entry clearance procedure, although it is of course carried out outside the United Kingdom.
12. Next, the jurisdiction to entertain claims of discrimination is contained in section 57. Put shortly, a claim for discrimination may be made subject to civil proceedings as if it were a claim in tort. Such a claim is, in England and Wales, to be brought and brought only in a County Court designated for the purpose. In relation, however, to questions of discrimination arising in the course of immigration proceedings, those jurisdictional rules are supplemented and made subject to section 57A. It is section 57A which is the crucial section in the present application. It is clearly designed to restrict the scope for inconsistent decisions in different fora and at the very least to encourage the making of discrimination decisions arising from immigration proceedings in the course of those proceedings. Section 57A provides as follows:

"(1) No proceedings may be brought by a claimant under section 57(1) in respect of an immigration claim if --

(a) the act to which the claim relates was done in the taking by an immigration authority of a relevant decision and the question whether that act was unlawful by virtue of section 19(b) has been or could be raised in proceedings on an appeal which is pending, or could be brought under the 1997 Act or Part V of the 2002 Act; or

(b) it has been decided in relevant immigration proceedings that that act was not unlawful by virtue of that section."

I can omit subsection (2) for present purposes, but subsection (3) provides:

"(3) Where it has been decided in relevant immigration proceedings that an act to which an immigration claim relates was unlawful by virtue of section 19(b), any court hearing that claim under section 57 shall treat that act as an act which is unlawful by virtue of section 19(b) for the purposes of the proceedings before it.

(4) No relevant decision of immigration authority involving an act to which an immigration claim relates, and no relevant decision of an immigration appellate body in relation to such a decision shall be subject to challenge or otherwise affected by virtue of a decision by a court hearing an immigration claim under section 57."

13. Next, section 68 of the Act provides for time limits. Section 68(2) imposes, in relation to ordinary discrimination claims made in the County Court, a limitation period of six months from the date of the act complained of. However, in relation to discrimination claims arising in the course of immigration procedures, there is separate provision in section 68(2A):

"In relation to an immigration claim within the meaning of section 57A, the period of six months mentioned in subsection (2)(a) begins on the expiry of the period during which, by virtue of section 57A(1)(a), no proceedings may be brought under section 57(1) in respect of the claim."

14. The critical subsection is section 57A(1). The claimant submits that the effect of that subsection is to oust the jurisdiction of the County Court where the discrimination complained of occurred in the course of the taking of an immigration decision, and the discrimination issue has been, or could be, raised on an immigration appeal. Thus, it is submitted that the claimant here was unable to go to the County Court because the discrimination issue had been raised in the immigration appeal, and he said section 57A(1) ousts the County Court's jurisdiction in consequence. That submission, however, pays insufficient attention, indeed substantially ignores the words "which is pending or could be brought".
15. It seems to me the purpose of section 57A(1) is clear. It is to prevent there being inconsistent decisions in an immigration appeal under Part V of the 2002 Act on the one hand, and in the County Court on the other. It is also to encourage, wherever possible, the making of discrimination decisions arising in the context of immigration before a Tribunal versed in immigration affairs. However, once there is no longer an immigration appeal which is pending or could be brought, the possibility of inconsistent decision ceases to exist and, on the plain language of the statute, there is no bar to making a discrimination claim in the County Court.
16. The claimant submits that that analysis offends against the one-stop appeal principal said to underlie Part V of the 2002 Act. That does not seem to me to be so. It is certainly true that an immigration appellant may not appeal on one ground and, when he fails on that, try again on a separate ground if it is one which he could and should have raised the first time round. He has only one appeal. There is nothing peculiar to immigration about that. There are also special ancillary provisions in section 120 of the 2002 Act requiring an immigration applicant to set out his whole case, but these have no bearing on the present problem. An immigration appellant who has a discrimination ground of appeal should clearly raise it in his single appeal to the Adjudicator under section 82, and if subsequently it raises a point of law he should raise it in his appeal to the Tribunal under section 101. If he does not, his opportunity to use it to challenge the immigration decision is lost. But if for some reason he chooses not to or erroneously omits to do so, perhaps because he has not had the necessary advice, there is no statutory provision preventing him from subsequently bringing a County Court action under section 57, providing he does it within six months of the coming to an end of any pending appeal in the immigration system. If that happens he may recover damages, but the immigration decision will not retrospectively be reversed. That is the explicit effect of section 57A(4).
17. Next, sections 68(2) and (2A) seem to me plainly to confirm the temporary nature of the ouster of the County Court's jurisdiction which is achieved by section 57A(1). Those provisions of section 68 demonstrate that a County Court claim can be brought in an immigration case once the immigration appeal ceases to be either pending or available to be brought. I should add this: only the County Court can award damages for discrimination. In an immigration case, a claimant has to bring County Court proceedings after his immigration proceedings are over. If the discrimination point has been resolved in his favour by either the Adjudicator or the Immigration Appeal Tribunal, then section 57A(3) means that the unlawfulness of what occurred cannot be reopened. If the point has been resolved against him in the immigration proceedings, that cannot be reopened either: section 57A(1)(b).
18. For those reasons it follows that I am against the claimant's contention that the effect of her appeal to the Immigration Appeal Tribunal being treated as abandoned was to deprive her of her right to have her discrimination complaint adjudicated upon. It was open to her to act at any time within six months of the abandonment of her appeal via a claim under section 57 in the appropriate County Court.
19. With that background I move to consider whether the decision of the Immigration Appeal Tribunal to issue notices under section 104(4) was wrong. The claimant's contention that it was not only wrong but unlawful is founded largely on her argument that section 104 must be construed so as not to deprive her of her right to have her discrimination claim adjudicated upon. Since I have held that she was not so deprived, that part of her submission fails. Mr Chatwin, however, also submits that the Tribunal was wrong because the potential appeal to the Tribunal was not a single appeal. Rather, it is said, it was a multiple appeal and its components were several. It is submitted that the discrimination complaint was a separate and discrete one so that although the appeal against refusal of entry clearance necessarily went by the board when visas were granted, the discrimination complaint did not. The Adjudicator was wrong in law not to deal with the discrimination issue, it is said (and with that I agree). Thus, it is said, a separate appeal against that part of her decision survives section 104(4).
20. That argument confuses the question of whether the Adjudicator was wrong with whether there is or is not an extant appeal against a wrong decision. The Adjudicator was wrong and, at least where the children had no decision from the Adjudicator in their favour, an appeal lay on, amongst others, the discrimination ground. It may well be that the Tribunal ought to have granted leave on the discrimination point because it was a point of law, that is to say, the failure of the Adjudicator to address the issue contrary to section 86(2). But the appeal is an appeal against the decision of the Adjudicator. If the Adjudicator had allowed the appeal of the children as well as that of the mother, no appeal would have lain because all appellants would have succeeded. Whether that is so or not, once the appeal to the Tribunal was mounted, there was only one appeal, that is to say, against the failure to grant entry clearance. Once visas had been granted, the unmistakable effect of section 104(4) is to bring the appeal to an end by treating it as abandoned.
21. The outstanding discrimination claim remains alive and can be pursued in the County Court, or at least could have been provided it was pursued in timely fashion. It follows that I am satisfied that the action of the Immigration Appeal Tribunal in July in recognising that section 104(4) applied, and the appeal was treated as abandoned, was correct.
22. My attention has helpfully been drawn to the decision of the Immigration Appeal Tribunal in E v Entry Clearance Officer for Lagos given on 14th December 2004 by a Tribunal presided over by Ouseley J. The history in that case was broadly similar. The entry clearance officer refused entry clearance and an appeal was made to the Adjudicator, (a) on the immigration merits and (b) asserting discrimination. The Adjudicator resolved the case in favour of the appellant on the merits and held that it was unnecessary for him to deal with the discrimination ground. The appellant appealed to the Immigration Appeal Tribunal on the discrimination point, contending that the Adjudicator was wrong not to resolve the question. By the time the appeal came on, the appellant had been granted entry clearance and notice treating his appeal as abandoned was issued to him under the then applicable equivalent of section 104(4), that is to say section 58(9) of the 1999 Act. The Tribunal held that the meaning of that subsection, now section 104(4), was clear. There was, it held, but one appeal and it had been brought to an end by the grant of entry clearance. I am fortified by that decision in the identical conclusion which I have reached in this case.
23. The Tribunal went on to make some observations about the consequent effect on the discrimination claim. It appeared to accept that a favourable finding in the immigration proceedings was a necessary precondition for a successful County Court claim for damages under the Race Relations Act. It does not appear, however, that the attention of the Tribunal was drawn to the phrase "which is pending or could be brought" in section 57A(1) or to section 68(2A). On the fuller argument which I have heard, it seems to me that a favourable finding in the immigration proceedings is not a necessary precondition to a claim in the County Court for discrimination.
24. The Tribunal further drew attention to a number of, as it seems, unintended and unfortunate consequences to which that position might lead. First, it contemplated that if the Secretary of State were to be unsuccessful on the discrimination point before the Adjudicator and also on the merits but seek to appeal the discrimination point further, his appeal would be abandoned if, in the mean time, he recognised the merits by granting leave to enter. I hesitate to disagree with the Immigration Tribunal on the matter of immigration, but at least under section 104(4) that is not, I think, the consequence. Section 104(4) treats as abandoned an appeal where the appellant (my emphasis) is granted leave to enter, and in the example contemplated the appellant is the Secretary of State.
25. Secondly, the Tribunal drew attention to the fact that if a favourable finding upon a discrimination issue within the immigration proceedings was a necessary precondition to a Race Relations Act claim in the County Court, that meant that an appellant who has succeeded on the merits must await his entry clearance whilst any appeal on the discrimination point is resolved. On the view that I have taken of the legislation, that consequence does not follow.
26. Thirdly, however, this consequence does follow. If the Adjudicator's finding against the appellant on the discrimination point is appealed, a subsequent grant of entry clearance puts an end to the appeal, and because of section 57A(1)(b), the Adjudicator's conclusion adverse to the appellant is fatal to any subsequent County Court claim. That, as it seems to me and as it seemed to Ouseley J, is an unintended and unfortunate consequence of the legislation. It is, however, a plain consequence and the fact that it exists is not a reason to construe the legislation other than in the way that I have.
27. All this underlines the need for the Adjudicator to deal with any discrimination complaint, as section 86(2) of the 2002 Act requires him to do, even if he is disposed to allow the appeal on the immigration merits. In that way, the issue will be considered in the most appropriate forum, that is to say one used to dealing with the daily mechanics and principles of immigration decisions. In that way also, the risk of any would-be immigrant being deprived of having his complaint of discrimination adjudicated upon is eliminated. The only remaining disability on such a would-be immigrant is the freedom to appeal an adverse finding if subsequently entrance clearance is granted to him.
28. That is sufficient to resolve this application for judicial review. I should record this additional submission of the defendants. Miss Laing submits that the Tribunal's action in issuing notices to the effect that the appeal was treated as abandoned under section 104(4) amounted to a determination of the appeal. She submits that it follows from that that the proper route for challenge to it lies to the Court of Appeal under section 103(1) rather than by way of judicial review. I have heard some argument on this topic. I recognise that some assistance to Miss Laing's submission is provided by the decision of the Immigration Tribunal in Gremesti v Secretary of State, 18th January 2001, determination notified 23rd February 2001, and perhaps also by the view taken by Collins J in R (on the application of) Secretary of State for the Home Department v Immigration Appeal Tribunal [2004] EWHC Court 3161 Admin, upon the meaning of the word "determination".
29. Conversely, section 104 and its statutory predecessors appear to distinguish between determination and abandonment, and in many ways a question arising out of a notice such as the question in this case may well be thought more appropriate for challenge in in the Administrative Court than before the Court of Appeal. However that may be, a decision on the point is not necessary for my judgment and the occasion for the issue to be resolved seems to me to be very remote. It is perhaps just possible to envisage situations in which there is a dispute as to whether leave to enter has been granted or not, or whether an appellant has left the United Kingdom or not, and it may be possible to envisage a situation in which such a dispute gives rise to a question of law. But the occasion for it is very remote and it seems to me that the resolution of that question, interesting as it may be, can safely be left unless and until it is raised by real facts.
30. For all those reasons this application for judicial review must fail.
31. MISS LAING: My Lord, I am not instructed to apply for costs.
32. MR JUSTICE HUGHES: Yes.
33. MISS LAING: Can I just mention two matters, my Lord. There were a couple of occasions when your Lordship referred to a discrimination decision when I think your Lordship meant a discrimination complaint but I cannot really help your Lordship by saying exactly where they were.
34. MR JUSTICE HUGHES: Thank you very much. We do not have a certificate, Mr Chatwin.
35. MR CHATWIN: My Lord, I am informed that it has been lodged so --
36. MR JUSTICE HUGHES: I gather it is in order. No order for costs save for detailed assessment of the claimant's costs. Thank you both very much indeed.