MS v The Secretary of State for the Home Department

35. It is important first of all to set out the relevant statutory provisions: “ Nationality Immigration and Asylum Act 2002

82. Right of appeal: general (1) Where an immigration decision is made in respect of a person he may appeal [to the Tribunal]. (2) In this Part "immigration decision” means – (a) refusal of leave to enter the United Kingdom, (b) refusal of entry clearance, (c) refusal of a certificate of entitlement under section 10 of this Act, (d) refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain, (e) variation of a person’s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain, (f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom, …

84. Grounds of appeal (1) an appeal under section 82(1) against an immigration decision must be brought on one or more of the flowing grounds (a) that the decision is not in accordance with immigration rules; (b) that the decision is unlawful by virtue of section 19 B of the Race Relations Act 1976 (c74) [or Article 20A of the Race Relations (Northern Ireland) Order 1977] (discrimination by public authorities); … (c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights;

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

86. Determination of appeal (1) This section applies on an appeal under section 82(1), 83 or 83A. (2) The Tribunal must determine – (a) any matter raised as a ground of appeal (whether or not by virtue of section 85(1)), and (b) any matter which section 85 requires it to consider. (3) The Tribunal must allow the appeal in so far as it]thinks that – (a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or (b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently. (4) For the purposes of subsection (3) a decision that a person should be removed from the United Kingdom under a provision shall not be regarded as unlawful if it could have been lawfully made by reference to removal under another provision. (5) In so far as subsection (3) does not apply, the Tribunal shall dismiss the appeal. (6) Refusal to depart from or to authorise departure from immigration rules is not the exercise of discretion for the purposes of subsection (3)(b).

96. Earlier right of appeal (1) … (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 ha s not been, raised in a statement made in response to that notice, and (c) that, in then 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.]

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.” It is also appropriate to set out the terms of paragraph 395C of HC395: “395C.Before a decision to remove under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State, including: (i) age; (ii) length of residence in the United Kingdom; (III) strength of connections with the United Kingdom; (iv) personal history, including character, conduct and employment record; (v) domestic circumstances; (vi) previous criminal record and the nature of any offence of which the person has been convicted; (vii) compassionate circumstances; (viii) any representations received on the person’s behalf. In the case of family members, the factors listed in paragraphs 365-368 must also be taken into account.”

36. It is also important to consider the case law to which I have been referred. In EA (Section 85(4) explained) Nigeria [2007] UKAIT 00013 , the Tribunal concluded that the effect of Section 85(4) of the 2002 Act was not to make the Tribunal a primary decision maker. It was important to focus on the decision actually made in response to the appellant’s application. The Tribunal concluded that an in-country appellant could not succeed by showing that he met the requirements of the Immigration Rules at the date of the hearing but could succeed only by showing that the application that he made would be successful at the date of hearing.

37. This decision, among others, was considered recently by the Court of Appeal in AS (Afghanistan) v Secretary of State for the Home Department; NV (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 1076 . The first appellant had been granted initial and then further leave to remain as a student in the United Kingdom. Before the expiry of that leave to remain she submitted an application for leave to remain as a person intending to establish herself in business under paragraph 206E of HC395. This application was refused, and the notice of decision included what has come to be referred to as a one stop Notice, i.e. a notice of the kind referred to in Section 120(2) of the 2002 Act. Some three weeks later she submitted an application for leave to remain under the International Graduate Scheme and on the same day lodged a notice of appeal with the Tribunal against the Secretary of State’s earlier refusal of the application under paragraph 206E. On her appeal the Immigration Judge concluded that the Tribunal had no jurisdiction to consider the second application and also dismissed the appeal under paragraph 206E. This decision was upheld on reconsideration.

38. In the second case the appellant had entered the United Kingdom with leave to enter on several occasions over a period of time since January 1997. Some five days before the expiry of her most recent leave she made an application for leave to remain on the basis of ten years’ residence in the United Kingdom. This application was refused and a one stop Notice was served. She appealed the Secretary of State’s decision on the basis that that decision was not in accordance with the law and the Immigration Rules and some twelve days later served a Statement of Additional Grounds raising the grounds specified above and seeking a variation of her leave to remain on the basis that she was a student. The Immigration Judge who heard her appeal decided that he had no jurisdiction to hear the appeal on the student basis and a Senior Immigration Judge subsequently found that there was no material error of law in that determination.

39. These appeals were heard together by the Court of Appeal and the principal matter considered was the effect of Section 120 one stop Notices. The contention on behalf of the appellants was that the effect of a one stop Notice was that the appeal covered not only any ground before the Secretary of State when he made the decision under appeal but also any grounds raised in response to a one stop Notice, even if they had not been the subject of any decision by the Secretary of State and did not relate to the decision under appeal. On behalf of the Secretary of State it was contended that one stop Notices had a far narrower effect on appeals and the only grounds that could be put in issue on appeal were grounds placed before the Secretary of State when he made his decision or grounds raised in answer to a one stop Notice relating to that decision. It can be seen therefore that the Tribunal had preferred the interpretation of the Secretary of State.

40. By a majority the Court of Appeal allowed the appellant’s appeals. Moore-Bick LJ at paragraph 78 considered that the language of the sections of the Act to which he had been referred, in particular Sections 85(2), 96(2) and 120, demonstrated that they were intended to form constituent parts of a coherent procedure designed to avoid a multiplicity of applications and appeals. He noted that Section 82 established a general right of appeal against an “immigration decision” and provided the context in which the word “decision” in Sections 84 and 85 was to be interpreted. It was clear in his view that the expression “immigration decision” in Section 84(1) had the same meaning as it had in Section 82(1) and that the word “decision” in that sub-section must bear the same meaning. He went on to say the following: “79. Sections 82 and 84 provide the context for the interpretation of Section 85. Here again, the word ‘decision’ in sub-Section (1) must in my view mean an immigration decision of the kind identified in Section 82(1); and the word ‘decision’ in sub-Section (2) must have the same meaning. Section 85(2) imposes a duty on the Tribunal to consider any matter raised in a statement made under Section 120 insofar as it constitutes a ground of appeal of a relevant kind against the decision under appeal. Thus far, it seems to me, the natural meaning of these provisions is to impose on the Tribunal a duty to consider matters raised by the appellant insofar as they provide grounds for challenging a substantive decision of the kind identified in Section 82 that affects his immigration status. On the face of it they do not restrict that duty to considering grounds that relate to the reasons for that decision or to the original grounds of appeal.”

41. He went on to consider the terms of Section 120 and 96(2) and considered them, as he said at paragraph 81, to point towards a procedural scheme under which the appellant was required to put forward all his grounds for challenging the decision against him for determination in one set of proceedings and the Tribunal was placed under a corresponding duty to consider them. He referred to the decision of the Senior Immigration Judge in NV as being based in part on what that judge understood to be the effect of certain passages in EA (Nigeria) relating to the effect of Section 85(4) and in the case of AS to the conclusions of the Senior Immigration Judge there that the Tribunal was not intended to be a primary decision maker as held in SZ (Bangladesh) (applicable immigration rules) [2007] UKAIT 00037 . He found neither of those reasons to be persuasive. He considered that Section 85(4) had little bearing on the present case, being concerned only with the evidence that the Tribunal might consider when hearing an appeal. Nor did he see force in the argument that the effect of the appellant’s intentions was to make the Tribunal the primary decision maker in relation to any additional grounds. He also saw no force to an argument concerning the implications of his proposed findings on Section 3 C(4) of the Immigration Act 1971 .

42. Sullivan LJ agreed with Moore-Bick LJ. He said the following at paragraph 103: “103. It is clear that the underlying legislative policy is to prevent successive applications which, as Arden LJ says, are likely to prolong the period in which a person’s status is uncertain and undetermined. In my judgment, that policy is better served by a “One-stop” procedure that enables all, rather than merely some, of an appellant’s “other grounds” for remaining in the United Kingdom to be considered by the AIT at one appeal hearing. The inconsistency between the narrower interpretation and the underlying policy objective – to prevent successive applications – is a powerful reason for preferring the wider, rather than the narrower, interpretation, since the latter encourages a “Multi-stop” appeal process.” At paragraph 108 he made the point that “any grounds” in paragraphs (b) and (c) of Section 120(2) means what it says: any grounds, not “any human rights or asylum grounds”. He also referred to SZ and EA , at paragraph 114 of his decision, but remarked that the AIT in those cases had not considered how Section 85(2) should be interpreted so as to be coherent, and work in harmony with Section 96 and 120, bearing in mind the statutory purposes underlying those provisions. Earlier, at paragraph 113, he had said that he was not persuaded that the reference to “the decision appealed against”, in Section 85(2) must be a reference to the decision to refuse to vary leave to remain under a particular Rule rather than a decision to refuse to vary leave to remain, being one of the immigration decisions as defined by Section 82(2).

43. Arden LJ dissented, for the reasons summed up at paragraph 62 of the judgment. She disagreed inter alia on the proper interpretation of the meaning of the words “against the decision appealed against” at the end of Section 85(2) and considered that her interpretation achieved the statutory purpose, disagreed with the view that in effect Parliament had intended the Secretary of State to have to exercise a choice between relying on Section 3 C of the 1971 Act and Section 120 of the 2002 Act, considered that it was a coherent scheme that preserved the Secretary of State’s role as primary decision maker in all cases apart from asylum and human rights cases and concluded that the purpose of Section 120 was not to give an applicant who had missed the time limit in Section 3 C a means of rectifying mistakes in his original application.

44. I should state at the outset that it is in my view right to treat the appellant’s witness statement of 19 June 2009 together with the letter from his solicitors of the same date as being a Section 120 statement, and it is clear from the file that a Section 120 notice was made in the letter from the Secretary of State to the appellant of 27 April 2009. As Mr Malik argued in his grounds for reconsideration, there is no provision for a statutory time limit for the making of a Section 120 statement nor are there any statutory provisions as to the form in which such a statement is to be made. Accordingly there are no difficulties in proceeding to treat this appeal on the basis on which it has been argued. It is also relevant to mention that I agree with Mr Blundell that I am not bound by what is said in the directions quoted in the Civil Appeals Office letter to the appellant’s solicitors with regard to the effect on EA of AS and NV for the reasons he gave.

45. It is clear from AS and NV that the Tribunal may expect to be the primary decision maker in an increased number of cases. To that extent, what was said by the Tribunal in EA [2007] UKAIT 00013 at paragraph 7 must now be regarded as too broad a statement. Sullivan LJ at paragraph 114 in AS and NV noted the decision in EA but, as he remarked, the Tribunal in that case had not considered how Section 85(2) should be interpreted so as to be coherent and work in harmony with Sections 96 and 120, bearing in mind the statutory purpose underlying those provisions. Moore-Bick LJ was not persuaded by the reasoning of the Senior Immigration Judge in NV which was in part based on what the judge understood to be the effect of certain passages in EA . If Mr Malik is right, then what is said in the headnote to EA , from which I have quoted above, would no longer be correct.

46. It is clear from the majority judgments in AS and NV that the Court of Appeal was concerned to take proper account of the underlying legislative policy which was to prevent successive applications and also to avoid the difficulties posed to the appellants who, as Sullivan LJ put it at paragraph 99, might have good reason to question the coherence of the statutory scheme if, having been told they must raise any additional grounds on pain of not being able to appeal against a later application on that ground if they failed to mention it, were then told by the Tribunal that it had no jurisdiction to consider the additional grounds that they had been ordered by both the Secretary of State and the Tribunal to put forward. In other words there is a clear risk of prejudice to an appellant who fails to put in a Section 120 notice a matter which later under Section 96 is ruled out. One can readily see how this works in relation to the facts in AS and NV where in each case within the context of a refusal to vary leave to remain a different issue was raised in the Section 120 notice. The question is, however, whether the same concerns apply and the same approach should be taken in the situation where, as in this case, an appellant who acknowledges that he cannot succeed in showing the requisite amount of money in his account over the period of time in respect of which he originally applied can, in his response to a One Stop Notice, rely on a later period of time and as a consequence succeed in his appeal. It might be said in relation to this that a person who had failed, for example, to show under paragraph 276A of HC395 with reference to paragraph 276B that he had at least ten years’ continual lawful residence in the United Kingdom at the time of application but by the time when he put in a Section 120 notice had completed the full ten year period might, on Mr Malik’s argument expect to succeed. It might be said that the scheme is geared to getting a person to provide all the reasons for appealing against a particular decision rather than permitting the submission of evidence relating to subsequent circumstances which would only be relevant in the case of a decision which had not been taken.

47. The answer to this is far from clear from the judgments in AS and NV given the different situation being considered there. Certainly a matter of concern must be the risk to an appellant of not stating matters in a Section 120 notice which if they are left unstated may leave him unable to rely on them subsequently. In principle that would appear to apply equally to the situations of the appellants in AS and NV and the appellant in a case such as this. I note Mr Blundell’s argument that Sullivan LJ at paragraph 113 in AS and NV had accepted that the reference to “the substance of the decision” in Section 85(4) is a reference to “the decision to refuse to vary leave to remain under Rule X”. I think, however that on a proper scrutiny of paragraph 113 Sullivan LJ in fact made it clear that he was not persuaded that the reference to “the decision appealed against” was a reference to the decision to refuse to vary leave to remain under Rule X rather than the decision to refuse to vary leave to remain, and that such an approach to Section 85(2) would be consistent with the reference in Section 85(4) to “the substance of the decision”.

48. It is relevant however also to consider what was said by Moore-Bick LJ at paragraph 83 in AS and NV . He said there that Section 85(4) had little bearing on the present case, being concerned only with the evidence that the Tribunal might consider when hearing an appeal. He considered the argument, that an appellant would be unable by reason of Section 85(5) to adduce evidence in support of a completely new ground of challenge and that therefore the interpretation of sub-section (2) favoured by the appellant must be wrong, went far too far. He went on to say that in a limited class of cases the prohibition on hearing evidence of matters postdating the decision under appeal would prevent the appellant from effectively pursuing an additional ground, but that was not the case with the instant appeals. He thought it was unlikely to be so in the majority of cases.

49. In my view the wording of this section of the judgment provides some assistance in clarifying the ambit of the decision. I consider that the Court of Appeal limited the ambit of its decision to cases where a fresh ground is raised in respect of the particular immigration decision made, rather than the making at a later date of an application, based on fresh evidence, arising from the original refusal or that, if it was not, its decision has to be interpreted as being so limited. I consider that the purpose of the procedural scheme established by Section 120 is to encourage an applicant to provide all the reasons he or she has for appealing against a particular decision (e.g. to refuse to vary leave to remain), rather than permitting the later submission of evidence relating to subsequent circumstances in a case such as this where the rule in question specifies a fixed historic time-line. It must follow from that that in a case such as this, the Secretary of State would not properly be able to rely on Section 96 to rule out a further application made under the points based system, and that any such reliance would be clearly vulnerable to challenge by way of judicial review. It is relevant in this regard also to bear in mind that the guidance is changed regularly in relation to the points-based scheme, and there is no guarantee in any given case that the same requirement would apply at a later date as applied at an earlier date. Appellants have had to pay close attention to the relevant website in order to ascertain what the guidance is in respect of the relevant period. In conclusion, therefore, I consider that Mr Malik’s first ground is not made out.

50. The second ground is in essence that the Secretary of State’s decision was not in accordance with the law because he failed to make a decision under Section 10 of the Immigration and Asylum Act, and therefore failed to consider paragraph 395C of HC395.

51. In TE (Eritrea) [2009] EWCA Civ 174 the appellant had had an appeal against a claim for asylum refused but was given discretionary leave to remain until her 18 th birthday. Shortly before the expiry of that leave she applied for an extension which was refused two years later. It was explained in the notice of refusal that there was a right of appeal on grounds including any incompatibility of removal with the appellant’s ECHR rights and it was also said that all grounds for being allowed to remain or for not being removed were to be advanced on the appeal except all those already argued. Her appeal against this decision was dismissed and the matter was appealed to the Court of Appeal on the basis that the Immigration Judge had materially erred in overlooking the Secretary of State’s failure to consider and address paragraph 395C of HC395.

52. The Court of Appeal noted what had been said by Laws LJ in JM v Secretary of State for the Home Department [2006] EWCA Civ 1402 where the appellant had been refused a variation of the six months’ leave on which he had entered the United Kingdom and appealed on refugee and human rights grounds. Before the Tribunal it was held that the human rights claim which he wished to reserve unless or until removal directions were given was not justiciable. At paragraph 17 Laws LJ noted that it was the case that once a person’s appeal against refusal to vary leave was dismissed they were required to leave the United Kingdom and if they did not do so they would commit a criminal offence under Section 24(1) (b) of the Immigration Act 1971 and also Section 11 of the Nationality, Immigration and Asylum Act 2002 . Such a person’s entitlement to state benefit would also be affected and if another person employed them they would be guilty of a crime under Section 8 of the Asylum and Immigration Act 1996 . Laws LJ at paragraph 18 said that it seemed to him to be wrong in principle that the price of getting before an independent Tribunal for a judicial decision on a human rights claim should be the commission of a criminal offence and other associated legal prohibitions. He also made the point at paragraph 23 that this was a case where a “one stop Notice” had been given.

53. In TE Sedley LJ, with whom Jacob LJ agreed, was of the view that all these considerations applied with equal cogency in the present case. He considered that the state had or ought to have an interest in not multiplying administrative proceedings in appeals especially where the facts and issues overlapped and where segregating them created uncovenanted difficulties for the individual. He made the point at paragraph 19 that it was not the case necessarily that the Home Secretary could never fairly or rationally take variation and removal in separate stages and that there might be cases where it was both practical and fair to segregate them. He considered, however, that the present appellant’s desire not to find herself breaking the law in order to resist removal was an entirely reasonable one in which the Home Secretary, for reasons of both practice and public policy, ought to concur. He considered that whatever else might determine the choice of course by the Home Secretary it could not properly be random or dictated by simple administrative convenience. Lloyd LJ did not accept that there was an obligation on the Home Secretary to undertake a consideration under paragraph 395C in any case in which he was asked to do so at the stage of deciding whether or not to extend any existing leave to remain. He considered it would not have been unlawful in the sense of irrational for the Secretary of State to leave the paragraph 395C issue until the stage (if it arrived) at which the appellant was liable to be removed. He considered though that if the point had been raised at the outset it would have been a sensible decision to undertake that exercise at the earlier stage. He considered, in agreement with Sedley LJ, that, the point having been raised at the reconsideration stage before the Senior Immigration Judge albeit later than it might have been, it would now be appropriate for the Secretary of State to undertake the consideration required by paragraph 395C.

54. In the instant case, the appellant chose not to pursue human rights issues before the Immigration Judge. The situation is therefore different from that in JM where the Tribunal concluded that the appellant’s human rights claim was not justiciable. If the appellant fails in his appeal under the Immigration Rules and chooses not to pursue a human rights claim, any illegality consequent on his choice to remain in the United Kingdom should be on his own head. Though it is possible to envisage cases where consideration of paragraph 395C issues might make a difference, this, in my judgment, is not such a case. It may be right therefore to regard the ambit of TE as being limited to cases where the failure on the part of the Secretary of State to consider the paragraph 395C issues makes or could make a real difference.

55. For the reasons given above, the decision of the Immigration Judge dismissing this appeal is maintained. Signed Senior Immigration Judge Allen