England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		5 August 2010

HH Judge Anthony Thornton QC:

1. This judicial review raises a short question of construction of section 113(1) of the Nationality, Immigration and Asylum Act 2002 ("NIAA"). This may be expressed as follows: was the claimant's claim, made in the course of an immigration appeal against the defendant's refusal to grant her leave to enter, a "human rights claim" in the sense defined by section 113(1)? The claimant contends that it was but the defendant contends that it was not, essentially because the claim was not "made to the defendant at a place designated by the defendant" but was instead served on the Asylum and Immigration Tribunal ("AIT") as part of the claimant's notice of appeal and her legal representative's skeleton argument for use at the hearing of the appeal.
2. The claimant is a citizen of Bangladesh and her date of birth was 10 June 1989. She entered the United Kingdom originally on 12 July 2006 having previously been issued with a two-year multi-visa for entry clearance as a visitor that was valid between 18 June 2006 and 18 June 2008. The claimant was resident in the United Kingdom until 8 July 2007 save for a short period in December 2006 when she travelled to Israel and returned to the United Kingdom on 31 December 2006. Between 8 July 2007 and 2 August 2007, the claimant was in Bangladesh. On her return to the United Kingdom, she remained here until 11 October 2007 when she travelled to Germany for three days. On her return to the United Kingdom on 14 October 2007, she was stopped by immigration officials and interviewed about her immigration status. The claimant was notified by a Notice of Refusal of Leave to Enter served on an IS 82C form dated 31 October 2007 that she had been refused leave to enter and that her multi-visa for entry was cancelled.
3. The reasons for taking this decision were set out in the Notice. In summary, these were that the multi-visa or visit visa had been issued to the claimant after she had employed false representations and failed to disclose material facts to obtain it. Moreover, the claimant's circumstances had changed since her visa and entry clearance had been granted so that these permissions should be cancelled. In particular, it was contended that the claimant had stated when applying for her visa that she would only be staying in the United Kingdom for one month and that, otherwise, she was intending to study in Malaysia full-time. Instead, the claimant had spent all but thirty two days inside the United Kingdom since 12 July 2006, had transferred her primary residence to the United Kingdom and had continued her studies from within the United Kingdom by means of a distance learning course that she had enrolled on that was located in Bangladesh.
4. This refusal decision contained a One Stop Warning notice that was made under section 120 of the NIAA. This notice informed the claimant:

"You are entitled to appeal this decision under section 82(1) of [NIAA]. A notice of appeal is enclosed which explains what to do … The appeal must be made on one or more of the following grounds:

Before Removal

…

That the decision is unlawful because it is incompatible with your rights under the European Convention on Human Rights

…

Outside the United Kingdom

If you are appealing from abroad you can appeal on all the above grounds except:

That your removal from the United Kingdom as a result of the decision would breach the United Kingdom's obligations under the 1951 Refugee Convention or be incompatible with your rights under the European Convention on Human Rights.

You should not appeal on grounds which do not apply to you. You must give arguments and any supporting evidence which justifies your grounds.

…

ONE STOP WARNING

Under section 120 of [NIAA]

You must now make a formal statement about any reasons why you think that you should be allowed to stay in this country. This includes why you wish to stay here, and any grounds why you should not be removed or required to leave.

The statement should be made on the form NOTICE TO APPEAL, if you are appealing this decision.

If you are not appealing but have further reasons you wish us to consider you should send them to the address shown above to reach us within the next 10 working days.

You do not have to repeat any reasons you have already given us but if you do have any more reasons you must now disclose them.

If, after you have completed the form, the reasons why you think you should be allowed to stay in this country change, or new reasons arise, you must tell us as soon as possible. Do not wait until your appeal has been heard.

If you later apply to stay here for a reason which you could have raised earlier, you mat not be able to appeal if the application is refused."

The significance of a section 120 one stop notice is that, by virtue of section 96(2) of the NIAA, an appeal against any subsequent immigration decision may not be brought if the Secretary of State or an immigration officer certifies that there was no satisfactory reason for a matter relied on in a possible appeal from that subsequent decision not having been raised in a statement made in response to that notice.

5. The claimant exercised her right of appeal by giving a notice of appeal which was filed with the AIT. This step was taken in accordance with Rules 6(1) (Giving notice of appeal) and 55(1) (Filing and service of documents) of the Asylum and Immigration (Procedure) Rules 2005 ("the Procedure Rules"). The parties did not provide a copy of the notice but it is clear from the subsequent decision of the AIT following the hearing of the appeal on 11 December 2007 that the claimant's grounds were that she had not breached the terms of her visa, was a genuine visitor and had not changed her circumstances since she had first arrived in the United Kingdom. She also contended that the defendant had failed to exercise discretion properly in refusing to depart from or to authorise departure from the Immigration Rules. The first ground was dismissed on the facts found by the Immigration Judge. The second ground was not considered because the Immigration Judge found that he had no jurisdiction to consider it.
6. A third ground was considered. This was explained and dismissed by the Immigration Judge in his decision as follows:

"Human Rights

29. In the skeleton argument which was submitted there is mention of the Right to Education under Article 2 of Protocol 1 of the European Convention on Human Rights [EHCR]. Mr Choudhury [the claimant's representative before the AIT] did not pursue this in his submissions, but for the sake of completeness I will deal with the claim. It is well-established that a right to education is not an absolute right and the [claimant] as no right to insist that she be educated in this country. The [defendant] will not therefore be infringing her right to education if she is prevented from studying in the UK when she can be adequately educated in Bangladesh, which is her country of origin, or in Malaysia, which is where she originally claimed she would be educated. I therefore dismiss any appeal on Human Rights grounds."

Article 2 of protocol 1 of the ECHR provides:

"No person shall be denied the right to education. … ."

It should also be noted that the defendant was also represented by a Presenting Officer at the hearing before the Immigration Judge.

7. The claimant applied for reconsideration. A copy of the grounds was not provided but the application was refused on 23 September 2008. Removal directions were set on 4 December 2008 for 10 December 2008 but were subsequently cancelled and the claimant was given temporary admission which was subject to a reporting requirement. Meanwhile, the claimant applied to the defendant for discretionary leave to remain. This application was sent to the defendant by a recorded delivery letter dated the on 8 January. The application was made on a completed FLR(o) application form. The parties did not provide a copy of this form but a copy of the claimant's accompanying statement was provided. This included a statement that the claimant had established a private life in England since her arrival in the United Kingdom, that she had rooted herself in England and considered it to be her home. She had never lived in Bangladesh and had slowly eroded all her ties with her country of origin. She believed that returning her to her country of origin would infringe her human rights, especially her Article 8 rights under the Human Rights Act and would place the United Kingdom in breach of its obligations pursuant to the Human Rights legislation.
8. Whilst the claimant was waiting for a decision, she was served with a notice on 2 March 2009 that she had failed to report in accordance with her weekly reporting requirements on 26 February 2009. No further action was taken and no further notification of any breach of reporting restrictions was served on the claimant. Thus, there is no evidence of her seeking to abscond or of any other breach of immigration regulations.
9. The defendant refused the article 8 application on 20 July 2009. The decision-maker considered, in the refusal decision, that the claimant had established a private life during her time in the United Kingdom but that any interference with that right was justified and proportionate given the need to maintain effective immigration control.
10. The decision also took into consideration what was described as the fact that the claimant had failed to observe immigration regulations by absconding from immigration authorities. However, there was no evidence of any absconscion, the only documented breach of immigration regulations was a failure on one occasion to report in as part of her weekly reporting obligation, a failure which was not apparently repeated subsequently.
11. The claimant issued this application for permission to seek judicial review of the decision dated 20 July 2009 on 12 August 2009. There are two separate grounds put forward. These are:

(1) The decision was not taken, as it should have taken, by applying paragraph 353 of the Immigration Rules. In other words, it was not treated as a second claim and no consideration was given as to whether it could count as a fresh claim with, if necessary, a second reference to the AIT. Instead it was treated as a first human rights claim and rejected as such.

(2) The decision, irrationally and unfairly, was taken in isolation from any decision to remove the claimant. Thus, the decision did not permit a right of appeal whereas, had it been taken in conjunction with the necessary subsequent removal decision, the claimant would have been granted a right of appeal if both decisions were adverse to her.

Paragraph 353

12. Paragraph 353 of the Immigration Rules is headed "Fresh Claims" and is within Part 12 of the Immigration Rules headed "Procedure". This rule reads:

"When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.

This paragraph does not apply to claims made overseas."

13. The defendant did not apply the procedure provided for in this paragraph to the claimant's claim. The further submissions contained in the article 8 claim application dated 8 January 2009 were rejected but there was no determination as to whether these submissions constituted a fresh claim, the second part of the procedure provided for in that paragraph. This restricted approach to the claimant's claim was taken because it was considered that the claim was not a second "human rights claim" so that the paragraph 353 procedure was not required and because there was no indication in the claim document that the claim was a fresh claim so that it was not incumbent on the defendant to do other than consider the claim as a straightforward claim for discretionary leave, as happened. Furthermore, the defendant contends that the claim was hopeless as an article 8 claim and would have been bound to be dismissed as a fresh claim had it been considered under paragraph 353 since it would have had no prospects of success either when considered by an UK Border Agency official or by the AIT on any subsequent appeal.
14. The first question is, therefore, whether the claim made to the AIT in December 2007 in reliance on article 2 of protocol 1 of the ECHR was a "human rights claim" as provided for in paragraph 353 since, if it was, it is conceded by the defendant that paragraph 353 was applicable to the second article 8 claim made to the defendant in January 2009. It is, at first blush, surprising that it is contended that the claimant's Article 2, Protocol 1 claim is not a "human rights claim" although it was described by the Immigration Judge as a "claim under the ECHR" and that "for the sake of completeness I will deal with the claim" and that he then concluded by deciding "I therefore dismiss any appeal on Human Rights grounds".
15. The claimant's article 2, protocol 1 claim and its disposal by the Immigration Judge would appear to have all the hallmarks of the qualifying requirements of paragraph 353, namely as being a claim covered by these words: "When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending". The only reason why it is said not to be covered by these words is that the claim is not, within the strict definition of a "human rights claim" provided for in section 113(1) of the NIAA. That provides:

"In this part [i.e. in part 5 which consists of sections 81 – 117 that are entitled Immigration and Asylum Appeals], unless the contrary intention appears:

human rights claim means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to the Convention) as being incompatible with his convention rights." (emphasis added)

16. The defendant contends that the claim that was made under article 2, protocol 1 of the ECHR, although in all other respects a human rights claim, was not "a human rights claim" on this occasion because it was not made to the Secretary of State but instead was made to the AIT and, further, was made in a pre-hearing skeleton argument document and not in the preceding notice of appeal document.
17. The defendant relied on two authorities, the earlier being one of the AIT and later being one by the Administrative Court, in support of this submission. The first in time was that of the AIT in SS and others (Ankara Agreement – no in-country right of appeal) Turkey^[1]. In that case, the construction of section 113 arose in the context of a consideration as to whether a human rights claim raised for the first time in a notice of appeal entitled the claimant to a in-country right of appeal under section 92(4)(a) of the NIAA. Although there had been an earlier unsuccessful asylum application, that was irrelevant since the decision was reached at a time when it was considered possible to bring a second appealable immigration claim involving a second human rights claim. Thus, the only relevant question was whether the appeal could be an in-country appeal. It could be, but only if the human rights claim it involved had complied with section 113. The AIT concluded that the relevant claims, being article 8 claims, were not human rights claims solely because they had first been advanced in the notices of appeal. Thus, although they attracted a right of appeal, that appeal was not a section 92(4)(a) in-country appeal. Instead, the appeal had to be advanced from Turkey once the applicants had returned there. The reason for this was because the human rights claim had not been served on the Secretary of State but on the AIT.
18. The AIT, in its decision, explained its reasoning as follows:

"84. We conclude that (subject to a further requirement we shall come to in a moment) a claim can qualify as an asylum or human rights claim under s.113 even though made post-decision even if not made until (but no later than) the time of the lodging of the notice (and grounds) of appeal. We say no later than because although a human rights claim may be made to the Secretary of State at any time, including after the decision, that claim can have no effect on the validity of an existing appeal. An appeal is either valid or invalid at the point in time when the notice of appeal is served, or it is not. No subsequent human rights claim can affect that.

The significance of the changes introduced with effect from 4 April 2005 for the making of an asylum and human rights claim

85. The further requirement, which we have referred to above as a third requirement, is that the asylum or human rights claim must be one "made…to the Secretary of State" (emphasis added). Plainly this requirement is an integral part of the s.113 definition.

86. Of course, prior to 4 April 2005 it was possible (on the above analysis) to make an asylum or human rights claim at the same time as lodging an appeal, since, up to that time an appeal to an adjudicator made in-country was effected by service of a notice of appeal on the Secretary of State. In this way any claim contained in the grounds of appeal automatically went to the Secretary of State."

87. However, that all changed as from 4 April 2005, with the creation of the AIT. Thereafter, notice of appeal is not served on the Secretary of State. Rule 6 of the 2005 Procedure Rules (headed "Giving notice of appeal") specifies that:

"6.-(1) An appeal to the Tribunal may only be instituted by giving notice of appeal against a relevant decision in accordance with these Rules.

(2) Subject to paragraphs (3) and (4), notice of appeal must be given by filing it with the Tribunal in accordance with rule 55(1)." (emphasis added)

88. It might be suggested that these changes were not intended to prevent an in-country asylum or human rights claim from being made to the Secretary of State in the notice of appeal. However, even if that was not the intention, that plainly must be the effect of these changes. Further, the drafting of the 2005 Procedure Rules shows that specific thought was given to the implications of these changes for the giving of notice of appeal. Paragraphs (2)–(6) of rule 6 state:

"(2) Subject to paragraphs (3) and (4), notice of appeal must be given by filing it with the Tribunal in accordance with rule 55(1).

(3) A person who is in detention under the Immigration Acts may give notice of appeal either –

(a) in accordance with paragraph (2); or

(b) by serving it on the person having custody of him."

19. The second decision was that of Silber J in R (on the application of Garfield Rainford v SSHD^[2]. In that case, it was contended that a human rights claim should have been considered as a second human rights claim, and therefore susceptible to paragraph 353, because an earlier human rights claim had already been decided. That submission was rejected because, as Silber J stated:

"22. According to Ms Plimmer, this appeal in 2005 constituted the first human rights claim made by the claimant with the result that the 2007 human rights claim was the second such claim. So she contends that the 2007 human rights claim could not be the subject of an in-country appeal with the result that it could not be certified. She contrasts the present case with one of the cases considered by Blake J in which there had not been a previous human rights or asylum claim. Mr Eicke correctly pointed out that this contention was not correct because it appears both claimants in the Etame case had made claims in the past (see paragraph 34 of the Etame judgment).

23. In response, Mr Eicke contends that the previous human rights claim relied upon by Ms Plimmer was not a "human rights" claim within the meaning given to it in the 2003 Act because it failed to comply with the statutory provision which is that it had to be "a claim made by a person to the Secretary of State", as these are the words defining the term "human rights claim" in the interpretation section (section 113 (1)) of the 2002 Act).

24. I consider Mr Eicke's submission to be correct because the only human rights claim made prior to the 2007 human rights claim was in the notice of appeal against the Secretary of State's decision in the letter of 13 March 2005. It is critically important that this claim was not made to the Secretary of State but instead it was made to the Asylum and Immigration Tribunal. Thus it follows that the 2007 human rights claim was the first human rights claim made by the claimant and so it was subject to the in-country appeal regime.

25. In reaching this conclusion, I have not overlooked two submissions made by Ms Plimmer. First, she submits that the conclusion advocated by Mr. Eicke and accepted by me that a human rights claim has to be made to the Secretary of State is "absurd" so that a purposive construction along the lines of her submission should be adopted. I am unable to accept that submission because there is nothing absurd or in any way strange about first human rights claims being subject to in-country appeals while subsequent human rights claims having to be "fresh claims" within the meaning of rule 353 of the Immigration Rules before they can be considered.

26. The second submission of Miss Plimmer which I have considered, but rejected, is that there is no adequate evidence to show that the claim of one of the claimants in the Etame case (Mr. Amirah) was in the words used in the definition section (with my emphasis added) "a claim made by a person to the Secretary of State at a place designated by the Secretary of State …". My task is to see if the 2005 appeal made by the claimant was a "human rights claim" within the definition in section 113 (1) of the 2002 Act. So it is not relevant as to whether either of the claimants in the Etame case fell within that definition."

20. These decisions, and in particular the Rainford decision of Silber J, appear to give strong support to the defendant's submission in this case. Before considering whether these decisions are applicable, it is necessary to note six related additional matters:

(1) The definition section of section 113(1) is stated in that section to be applicable "in this part" of the NIAA (i.e. when that phrase is being applied in connection with any of the provisions of part 5 of that Act, namely sections 81 – 117). The definition is not strictly applicable to the construction of the phrase "human rights claim" in paragraph 353 of the Immigration Rules. Although it is no doubt intended that the Immigration Rules uses expressions directly related to immigration and asylum in the same way as the primary legislation, that cannot be taken to be of universal application since the Immigration Rules are expressions of policy, albeit in a form analogous to secondary legislation, and they are applicable, as in this case, in a much wider context than part 5 of the NIAA.

(2) The definition is, in any case, only applicable "unless the contrary intention appears" in part 5 of the NIAA. If the definition is applicable at all outside a part 5 context, that application must also be disapplied if a contrary intention appears in the relevant context being considered.

(3) The definition also requires the notice to be served "at a place designated by the Secretary of State". I was informed by counsel for the defendant that no designation has been made, by which I take it that no formal statement or provision in secondary legislation has been issued or promulgated which gives directions as to who and where a human rights claim should be served to qualify it as such under section 113.

(4) In this case, unlike the two cases relied on by the defendant, the claimant had been served with a one stop notice prior to making her first human rights claim.

(5) The Procedure Rules include two further provisions that are relevant to this case but which were not considered, and were possibly not relevant, to the two cases relied on:

(i) Paragraph 12(1): "… When the Tribunal receives a notice of appeal it shall serve a copy upon the [defendant] as soon as reasonably practicable."

(ii) Paragraph 14: "… the [claimant] may vary his grounds of appeal only with the permission of the Tribunal."

(6) It is well established that human rights grounds may be raised and argued before the AIT even if they have neither been previously been made as a claim to the defendant nor been made the subject of a decision by the defendant.

21. It is clear that the first human rights claim was not made to the defendant directly. It might, strictly speaking, not even have been made in the claimant's notice of appeal but only raised for the first time in the claimant's skeleton argument prepared for the hearing. However, the defendant has not produced these two documents and the Immigration Judge, although his words suggest that the skeleton argument was the first place that this claim was raised, nonetheless treated the claim as having been raised in the unamended grounds set out in the notice of appeal since he did not give leave to amend the grounds before dealing with the claim.
22. It is also clear that the claim was not relied on to any significant extent at the hearing. However, a human rights claim is such even if it is very weak and only faintly relied on by a party's representative at the hearing of an AIT appeal. Moreover, it was considered and specifically dismissed by the Immigration Judge. Therefore, a human rights claim (save possibly in the strict sense provided for by section 113) was raised, served on the AIT, considered by the Immigration Judge and dismissed by him in the AIT's decision.
23. I must now turn to the one stop notice. That was sent to the claimant and it informed the claimant in the form of a mandatory direction that:

(1) She should set out any reasons why she contended that she should be allowed to remain in the United Kingdom on the form NOTICE OF APPEAL (emphasis provided in the notice) if she was appealing the refusal notice.

(2) If she later applied to stay for a reason that she could have raised earlier, she might not be able to appeal if the application was refused.

24. It follows that the claimant was being directed in unambiguous terms that she was to put her human rights claim, if she had one, into the notice of appeal if she intended to appeal. Moreover, she should make her claim in this way even if she had not previously made it to the defendant. Furthermore, once she had done so, the Procedure Rules issued and approved by the defendant required her to serve that notice of appeal on the AIT who, in turn and as soon as possible thereafter, was to serve a copy of the same notice of appeal on the defendant.
25. Thus, although it is arguable that the expression "human rights claim" in paragraph 353 is not confined in its meaning to the meaning provided by section 113, in the context of this case, section 113 has in fact been complied with since the human rights claim was serve at a place designated by the defendant, namely on the AIT as designated in the one stop notice and by the Procedure Rules. Furthermore, in conformity with the Procedure Rules, which had been designated by the defendant, the defendant was then immediately served by the AIT with the human rights claim contained, in however rudimentary a form, in the notice of appeal. In those circumstances, the defendant cannot now contend that this claim was not served on "the Secretary of State". Even if the notice of appeal did not refer to the human rights claim, the skeleton argument document did and this was served on the defendant's authorised representative, being the case presenter, at or immediately before the hearing.
26. It follows also that neither of the two cited decisions are in point. Neither involved a one stop notice and neither considered the effect of paragraph 12 of the Procedure Rules. Moreover, SS was concerned with the definition of "human rights claim" in the context of part 5 of the NIAA (i.e. in the context of section 94 of that Act) so that it was not considering the meaning of that phrase in the context of paragraph 353 and Garfield Rainford involved neither a one stop notice nor a consideration of the effect of paragraph 12 of the Procedure Rules in the context of a one stop notice.
27. Although the defendant contended that paragraph 353 was not referred to in the claimant's second claim and it therefore did not need to be considered, there is no statutory requirement that makes it mandatory for the claimant to expressly refer to that procedural provision when making a second or fresh claim. Paragraph 353 is clearly applicable to a second claim, whether or not it has been expressly referred to and the defendant acts in contravention of that paragraph if a second claim is in fact submitted and is dealt with as a new first claim under part 5 of the NIAA.
28. Finally, I must address the submission that the second human rights claim is, as it stands, apparently weak and lacking in detail. Although that appears to be the case, and the claimant would do well to submit a further claim containing all the detail that is needed to get it off the ground, that is irrelevant to this judicial review application. It is not for the Administrative Court to decline relief where there has been significant procedural error by the defendant merely because, if the procedural error is corrected in a future decision, the claimant's application is then unlikely to succeed.

Failure to make an appealable removal decision

29. It became clear during the hearing of this application that the claimant will not receive an immigration decision if and when removal directions are issued in the future. Since she was not refused entry but was, instead subject to the revocation of her entry visa, she will be subject to removal directions that would be governed by paragraphs 8 – 11 of the 1971 Immigration Act. These directions are not an immigration decision as defined in the NIAA so that this second ground raised by the claimant does not arise.
30. It is not possible, however, to hold against the claimant or her legal advisers that it was contended that an immigration decision would be made prior to her removal, if such takes place. The defendant accepted that such a decision would be made in the Acknowledgement of Service, Lloyd-Jones J considered the permission application on the basis that such a decision would be made and the initial skeleton served by the defendant's counsel made the same error. None of this is of relevance save that the defendant is seeking a wasted costs order against the claimant's solicitors for raising this contention. That application, if still pursued, is clearly unfounded and will be dismissed.
31. Since the claimant is entitled to succeed on ground 1, the second ground put forward does not arise in any event. The permission application was adjourned to be considered with the substantive application if permission is granted. It must follow from my decision that permission is granted to argue ground 1 and is refused to argue ground 2. On the substantive hearing, the application succeeds on ground 1 and the claimant is entitled to an order setting aside the decision of 20 July 2009 and a declaration that the claim made under Article 2 of Protocol 1 of the ECHR in the appeal to the AIT in December 2007 was a human rights claim for the purposes of paragraph 353 of the Immigration Rules.

HH Judge Anthony Thornton QC

Note 1    [2006] UKAIT 00074.    [Back]

Note 2    [2008] EWHC 2474 (Admin), 17 October 2008.    [Back]