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Cite as: [2010] EWCA Civ 160

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Neutral Citation Number: [2010] EWCA Civ 160
Case No: C4/2008/2740

COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
HHJ MACKIE QC
CO/10438/2006 [2008] EWHC 2778 (Admin)

Royal Courts of Justice
Strand, London, WC2A 2LL
02/03/2010

B e f o r e :

PRESIDENT OF THE FAMILY DIVISION
LORD JUSTICE MAURICE KAY
and
LORD JUSTICE JACKSON

____________________

Between:
The Queen on the application of
Carl Myckoo (Jamaica)
Appellant
- and -

The Secretary of State for the
Home Department
Respondent

____________________

(Transcript of the Handed Down Judgment of
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____________________

Mr. Gordon Lee (instructed by Messrs Sutovic & Hartigan) for the Appellant
Mr. Jeremy Johnson (instructed by Treasury Solicitors) for the Respondent
Hearing dates : Tuesday 16th February 2010

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Jackson :

  1. This judgment is in five parts namely;
  2. Part 1: Introduction;
    Part 2: The Facts;
    Part 3: The Present Proceedings;
    Part 4: The Main Ground of Appeal;
    Part 5: The Second Ground of Appeal.
    Part 1. Introduction
  3. This is an appeal by a Jamaican citizen, who has been deported, against a decision of HHJ Mackie in the Administrative Court, dismissing his claim that certain submissions on behalf of the appellant amounted to a fresh claim.
  4. The principal statute which is relevant to this appeal is the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). The following provisions are relevant:
  5. "78 No removal while appeal pending
    (1) While a person's appeal under section 82(1) is pending he may not be
    (a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or
    (b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts.
    .
    (4) This section applies only to an appeal brought while the appellant is in the United Kingdom in accordance with section 92.
    .
    82 Right of appeal: general
    (1) Where an immigration decision is made in respect of a person he may appeal to an adjudicator.
    (2) In this Part "immigration decision" means
    .
    (k) refusal to revoke a deportation order under section 5(2) of that Act.
    84 Grounds of appeal
    (1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds
    ..
    (c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c.42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;
    ..
    (e) that the decision is otherwise not in accordance with the law;
    ...
    (g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights.
    92 Appeal from within United Kingdom: general
    (1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.
    (4) This section also applies to an appeal against an immigration decision if the appellant
    (a) has made an asylum claim, or a human rights claim, while in the United Kingdom, .."

    Section 94 empowers the Secretary of State to certify that a claim is clearly unfounded. Section 94(9) provides as follows: -

    "(9) Where a person in relation to whom a certificate is issued under this section subsequently brings an appeal under section 82(1) while outside the United Kingdom, the appeal shall be considered as if he had not been removed from the United Kingdom."

    Section 95 of the Act provides: -

    "95 Appeal from outside United Kingdom: removal
    A person who is outside the United Kingdom may not appeal under section 82(1) on the ground specified in section 84(1)(g) (except in a case to which section 94(9) applies)."
  6. Paragraph 353 of the Immigration Rules is also relevant. That paragraph provides: -
  7. "Fresh Claims
    353. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules 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 submission 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."
  8. It follows from the above provisions that under section 82 of the 2002 Act an individual may appeal against the Secretary of State's refusal to revoke a deportation order against him. Under section 84 one of the grounds upon which that individual can rely is that removal of him from the United Kingdom would be a breach of his rights under the European Convention on Human Rights ("ECHR").
  9. The question then arises as to the effect of section 78 and 92 upon such an appeal. Is the individual entitled to pursue the appeal from within the United Kingdom or must he first leave the Country? It was, until recently, believed that in order to fall within section 92(4), the human rights claim relied upon to defeat the deportation order must be a "fresh claim". It was believed that if the human rights claim was not a fresh claim within the meaning of paragraph 353 of the Immigration Rules, then the individual could only pursue his claim from outside the United Kingdom. See PE v SSHD [2008] EWHC 1140 (Admin).
  10. That position changed on the 26th February 2009 when the Court of Appeal allowed the appeals of PE and BA in those two appeals which were heard jointly. The effect of the Court of Appeal's decision was that, in order to fall within section 92(4) the human rights claim did not need to be a "fresh claim", see BA (Nigeria) v SSHD [2009] EWCA Civ 119.
  11. Having outlined the statutory framework, I must now turn to the facts.
  12. Part 2. The Facts
  13. The appellant was born on 24th June 1974 and is a citizen of Jamaica. He entered the United Kingdom as a visitor on 10th July 1997, having been given six months leave to enter as a visitor. On 16th January 1998 he made an out of time application for further leave to remain as a working holiday maker, such application being refused on 25th April 2000. On 9th September 1999 the appellant's daughter Taliah was born. On 18th March 2000 the appellant married Edwina Williams, a British citizen and Taliah's mother. On 16th December 2001 the claimant's son Rishaan was born. On 30th August 2002 the appellant made an application for leave to remain on the basis of his marriage to Ms. Williams. On 21st May 2003 the appellant was convicted of two counts of supplying Class A drugs, crack cocaine, and on the 25th May 2003 he was sentenced to four years and six months imprisonment with a recommendation from the trial judge that he be deported. On 11th June 2004 the appellant was served with notice IS151A as an over-stayer. Subsequently, he was served with notice of a decision to make a deportation order dated 7th October 2004 and the Secretary of State's explanatory statement of reasons dated 14th October 2004, the appellant's marriage application being refused on the basis of his criminal conviction in 2003. The Secretary of State concluded in the light of the judge's recommendation that deportation would be appropriate under section 3(6) of the Immigration Act 1971, requiring the appellant to leave the UK and prohibiting him from re-entering while the order is in force. Directions were proposed to be given for the appellant's removal to Jamaica. The appellant appealed under section 82 of the 2002 Act to the Asylum and Immigration Tribunal ("AIT").
  14. The appellant contended on appeal that deportation to Jamaica would be a breach of his rights under ECHR Article 8. The appellant placed particular reliance on the fact that Taliah suffered from epilepsy and other associated symptoms.
  15. In his decision dated 3rd March 2005 the adjudicator considered the effect of Article 8 and concluded that the Secretary of State's decision did not give rise to a breach of Article 8. The crucial parts of the adjudicator's decision read as follows:
  16. "12. I bear in mind the Appellant is a young man who has spent the majority of his life in his own country having only come to the United Kingdom relatively recently. I find he will readily adapt to life in Jamaica on return. I bear in mind he is married to Edwina Juanita Williams who was aware of his immigration status at the beginning of the relationship and they both entered into the same knowing the Appellant's status was uncertain. Notwithstanding such uncertainty they proceeded to start a family. I bear in mind the Appellant's overall immigration status. The Appellant has no right to remain in the United Kingdom. I bear in mind the Appellant has sought to deceive in using alternative names. I also bear in mind that appellant has been convicted of a very serious criminal offence. The trial judge found the Appellant had shown no remorse. Notwithstanding the Appellant's previous good character which was taken into account, he was sentenced to four and a half years. It was the view of the trial judge that the Appellant's continued presence in the UK would be potentially detrimental to the well-being of its citizens and he recommended he be deported on completing his sentence. I found the Appellant equally lacking in contrition, seeking to evade responsibility for his drug dealing.
    13. I have taken into account the circumstances of the Appellant and his family. I accept that they would be returning to Jamaica with no home or job there. I accept Taliah would need to access health care in Jamaica. Nevertheless, I must weigh the circumstances, taking into account all relevant factors. I bear in mind the Appellant's immigration history in the UK and his serious criminal conviction. I don't accept, on the evidence before me, that there is any reason why the Appellant cannot return to Jamaica with his wife and family. I bear in mind that Mrs Williams was aware of the Appellant's tenuous status when she entered into a relationship with him and made plans for a family. Whilst it may be that at the moment the couple have nowhere to live in Jamaica nor any job there, I find those are not compassionate circumstances against deportation, nor do I find significant that Mrs Stephenson would be potentially left behind in the UK.
    18. I do not accept, on the facts before me, that there would be any difficulty for the family to establish life in Jamaica. I accept that the family would rather remain living in London. I also accept Taliah has certain health problems but I do not accept either are compelling arguments against the right of the state to control the entry of non-nationals given that Article 8 does not impose on any state a general obligation to respect the choice of a couple's residence. Any interference would be in accordance with the law and would have legitimate aims. I must take into account the fact the Appellant and his wife were conscious at the beginning of their relationship that he had no status to remain here, which militates against the findings that an order excluding the Appellant violates Article 8.
    .
    21. There is nothing in the background information or medical reports before me to indicate there is no treatment available for Taliah's epilepsy in Jamaica. On the contrary, I find the Respondent in the letter dated 14th October 2004, comprehensively considers paediatric healthcare available in Kingston and any of the regional hospitals. It was apparent at the hearing that Mrs Williams whilst claiming lack of treatment facilities or acceptable treatment facilities in Jamaica for Taliah, had undertaken no research or enquiries whatsoever in that regard."
  17. That decision was upheld upon reconsideration by a senior immigration judge. On the 16th August 2005 the Secretary of State made a deportation order against the appellant. On the 17th October 2006 the appellant was detained for a period with a view to his removal. Thereafter, the appellant's wife and his solicitors made a series of applications to the Secretary of State to the effect that the appellant should be permitted to remain in the United Kingdom on Article 8 grounds. The appellant urged that the Secretary of State should revoke the deportation order previously made. The appellant also contended that these various submissions amounted to a fresh claim within the meaning of paragraph 353 of the Immigration Rules. The Secretary of State did not accept that these further submissions made on behalf of the appellant did constitute a fresh claim. The Secretary of State did not revoke the deportation order previously made. The appellant was aggrieved by the Secretary of State's refusal. Accordingly, the appellant commenced the present proceedings.
  18. Part 3. The Present Proceedings
  19. By a claim form issued on the 13th December 2006 the appellant sought judicial review of decisions made by the Secretary of State on 8th November 2006 and 30th November 2006 to refuse to accept the appellant's submissions as a fresh human rights claim. The principal relief sought by the appellant was as follows:
  20. "1. An order to quash the Secretary of State's decisions;
    2. An order requiring the Secretary of State to reconsider the further submissions and evidence of 19th October and 22nd November 2006, in line with rule 353 of HC395."
  21. Permission to proceed with the judicial review claim was granted in June 2007. Further submissions were made on the appellant's behalf to the Secretary of State. These further submissions resulted in a fresh decision letter dated the 23rd October 2008. In that decision letter the Secretary of State went through the appellant's immigration history in very great detail, he reviewed the medical evidence concerning the appellant's daughter Taliah. The Secretary of State went through the submissions which had been made on the appellant's behalf. At paragraph 65 of the letter the Secretary of State set out his conclusions as follows:
  22. "65. For the reasons set out above, the Secretary of State is of the view having given proper weight to the issues and considered the evidence in the round, that there is no realistic prospect that your submissions will, when taken together with all the previously considered material, lead an Immigration Judge to decide that you should be allowed to stay in the United Kingdom and accordingly it does not amount to a fresh claim under paragraph 353."

    The Secretary of State then stated that he had maintained his decision that the appellant should be deported. Finally, in paragraph 68 the Secretary of State wrote as follows:

    "68. As we have decided not to reverse the decision on the earlier claim and have determined that your submissions do not amount to a fresh claim, your client has no further right of appeal within the United Kingdom."
  23. Shortly after dispatch of that letter the Home Office sent to the appellant a formal notice of decision to refuse to revoke the deportation order which had been made against him. It appears from this notice that it was served on the 27th October 2008. The key part reads as follows:
  24. "On 7th October 2008 the Secretary of State made a deportation order against you under section 5(1) of the Immigration Act 1971. You subsequently sought revocation of this order. The Secretary of State has rejected your further submissions citing human rights grounds and has decided for the reasons given in the attached letter that these do not amount to a fresh human rights claim. She has also decided not to revoke the deportation order against you."

    The "attached letter" is a reference to the letter dated 23rd October 2008 previously mentioned.

  25. The notice also contained the following passage under the heading "bringing an appeal";
  26. "As your human rights claim has been treated as further representations under paragraph 353 of the Immigration Rules section 92 of the NIA Act 2002 does not apply and you are not entitled to an in-country right of appeal."
  27. Under section 82 of the 2002 Act the appellant would have been entitled to appeal to the AIT against the Secretary of State's refusal to revoke the deportation order. The appellant did not take that course, because he believed that such an appeal must be brought from outside the United Kingdom. Instead the appellant pursued his judicial review proceedings, essentially on the ground that the Secretary of State ought to have treated the appellant's various submissions as a fresh claim. The purpose of these proceedings was to establish his right to make an in-country appeal against the decision dated 27th October 2008.
  28. The judicial review proceedings were heard on 30th October 2008 before HHJ David Mackie sitting as a Deputy High Court Judge. At that hearing attention focused upon the Secretary of State's letter dated 23rd October 2008 as that was the most recent decision, which effectively superseded the earlier decision letters which had been sent on the Secretary of State's behalf. The judge gave judgment orally at the end of the hearing. He reviewed the case law since the adjudicator's decision, in particular Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39. The judge also reviewed the medical evidence concerning Taliah and the other material which had been placed before the Secretary of State for his consideration. The judge's final conclusion is set out in paragraphs 63 and 64 of his judgment which read as follows:
  29. "63. All these submissions would, it seems to me, have considerable force if there had been any sign of the narrow view having been adopted in this case. All the evidence suggests that Taliah's condition was at the forefront of the Secretary of State's and the adjudicator's consideration and reasoning. Indeed, reading the new letter, and there has been no suggestion as yet that the new letter does not apply a proper approach to the consequences of Beoku-Betts, one sees the same consistent approach being taken to the human rights of Taliah.
    64. When considering Beoku-Betts, one also has to remember, when moving to Article 8.2, that the future Immigration Judge would at that point be having to do the balancing exercise, having regard to what I have already pointed out to be the weighty considerations pointing the other way. So in my judgment the claimant has not shown, and is not able to show, that the defendant acted unlawfully in her decisions that these submissions did not amount to a fresh claim. For those reasons, this application fails."
  30. The appellant was aggrieved by Judge Mackie's decision. Accordingly, by a notice of appeal issued on 13th November 2008, the appellant appealed to this court, essentially on the basis that the judge had erred in his application of Article 8 to the circumstances of the appellant and his family. The judge ought to have found that the submissions made to the Secretary of State did constitute a fresh claim.
  31. Initially, permission to appeal was refused on paper. Following that refusal, the appellant was deported to Jamaica on the 9th February 2009. On the 26th February 2009 the Court of Appeal gave judgment in BA (Nigeria). As previously explained, the Court of Appeal held in that case that a person ordered to be deported could make an in-country appeal against the Home Office's refusal to revoke the deportation order. Furthermore, such an appeal does not need to be based upon grounds which constitute a "fresh claim" within paragraph 353 of the Immigration Rules.
  32. Following the Court of Appeal's decision in BA (Nigeria), the appellant amended his notice of appeal to add a new ground as his primary ground of appeal. That new ground is as follows: the Secretary of State in his decision letters had asserted that the appellant's submissions did not amount to a fresh claim and that therefore the appellant had no right to an in-country appeal. That assertion was now shown to be incorrect. Therefore the Secretary of State's decision to proceed with the deportation was made on an erroneous basis. Likewise, the judgment of HHJ Mackie was given on the wrong basis.
  33. On the 22nd September 2009 this Court, at an oral hearing, granted permission to appeal in the light of the new argument based on BA(Nigeria).
  34. Two months later, on 26th November 2009, the Supreme Court gave judgment in BA (Nigeria), upholding the decision of the Court of Appeal.
  35. After this outline of the history of the litigation I must now turn to the issues in the appeal.
  36. Part 4. The Main Ground of Appeal
  37. In support of the main ground of appeal, Mr Gordon Lee for the appellant points out that both parties proceeded below on the basis of a misapprehension. That misapprehension is illustrated by paragraph 68 of the decision letter which is set out at paragraph 14 above. It is also illustrated by the terms of the decision notice dated 27th October 2008, which is set out at paragraph 15 above.
  38. Mr Lee argues that the appellant has now been deported and thereby unjustly deprived of his right to pursue an in-country appeal against the Secretary of State's decision of October 2008. Mr Lee goes on to argue that, for a number of reasons, such an appeal would have had good prospects of success. The appellant would now be substantially prejudiced if he is forced to pursue his appeal under section 82 from Jamaica.
  39. As a matter of justice, says Mr Lee, this court should make an order that the Secretary of State do use his best endeavours to return the appellant to the United Kingdom, so that he can pursue an in-country appeal. Mr Lee draws attention to three cases in which the court has ordered the return of individuals who ought not to have been removed, namely R (Hilali) v City of Westminster Magistrates' Court [2008] EWHC 2892 (Admin); R (Ahmadi) v Secretary of State for the Home Department [2002] EWHC 1897 (Admin); R (Changuizi) v Secretary of State for the Home Department [2002] EWHC 2569 (Admin).
  40. Mr Jeremy Johnson for the Secretary of State argues that the appellant could have pursued an appeal under section 82 if he had wanted to but, as a matter of fact, he has never commenced an appeal either in the United Kingdom or from outside the United Kingdom. The decision of HHJ Mackie, whether right or wrong, on the "fresh claim" issue has had no effect upon the appellant's past or present entitlement to appeal under section 82. Mr Johnson goes on to point out that the appellant's deportation was lawful. It was carried out pursuant to the Secretary of State's decision of October 2008 not to revoke the deportation order. That decision was valid and effective. It had not been the subject of appeal and the time for appealing had expired when the appellant was deported. Mr Johnson accepts that there is an element of harshness upon the appellant, but he submits that that flows from the fact that when the Court of Appeal or the Supreme Court gives a decision on the common law or the correct interpretation of a statute, that decision is of retrospective effect. The court is declaring what the law is and was.
  41. I have found this issue immensely difficult. On the one hand, it is indeed harsh upon the appellant that he did not exercise his in-country right of appeal, because his lawyers perfectly reasonably believed at the time that there was no such right. Furthermore the Secretary of State encouraged that belief by paragraph 68 of the decision letter and by the terms of the notice of the decision. It should be noted, incidentally, that the information concerning the appellant's right of appeal is required to be included in the decision notice by regulation 5(3) of the Immigration (Notices) Regulations 2003.
  42. On the other hand, the erroneous statement in the notice of decision did not render it invalid: see R v Secretary of State for the Home Department ex parte Jeyeanthan [2000] 1 WLR 354. The appellant, if he had wished, could have asserted an in-country right of appeal. If he had done so and had contested the point, he would have succeeded as did the appellants in BA (Nigeria).
  43. Furthermore, the deportation of the appellant was perfectly lawful. It was carried out pursuant to a decision which had not been the subject of appeal. This case is therefore different from: R (Halali) v City of Westminster Magistrates' Court (Secretary of State for the Home Department intervening) [2008] EWHC 2892 (Admin); R (on the application of Ahmadi) v Secretary of State for the Home Department [2002] EWHC 1897 (Admin); and R (on the application of Abuzar Changuizi) v Secretary of State for the Home Department [2002] EWHC 2592 (Admin). In each of these three cases the deportation was unlawful at the time when it was carried out.
  44. I turn now to the appellant's present position. The appellant is fully entitled to apply to the First-Tier Tribunal (the successor to the AIT) for permission to appeal out of time against the Secretary of State's decision of 27th October 2008. The Secretary of State has stated through counsel that he would not oppose such an extension of time. That is a very proper position. In my view it would be appropriate for the First-Tier Tribunal to grant an extension of time for appealing under section 82, provided that any such appeal is commenced within 28 days of this judgment.
  45. The next question is whether the appellant could effectively pursue his appeal from Jamaica, where he has been living for the last year. The short answer is that he can. He has been conducting the present proceedings from Jamaica through English solicitors and counsel, without apparent difficulty.
  46. Mr Lee points out that because the appellant is out of the jurisdiction, he cannot rely on ground (g) of section 84(1) of the 2002 Act. That appears to be correct: see BA (Nigeria) in the Court of Appeal at paragraphs 39 to 40 and the House of Lords at paragraph 32. Mr Johnson submits that, even if that is correct, the appellant can still rely on grounds (c) and (e). Ground (c) enables the First-Tier Tribunal to take into account the appellant's rights under Article 8. Ground (e) enables the First-Tier Tribunal to take into account the Article 8 rights of Taliah and any other family members. Those statements made by the Secretary of State through counsel to this court are a concession which will be binding upon the Secretary of State in any future appeal proceedings before the First-Tier Tribunal or indeed the Upper Tribunal.
  47. Despite the foregoing points, Mr Lee submits that, as a matter of practical reality, the appellant will be handicapped if he seeks to pursue this appeal from outside the jurisdiction. Mr Lee relies upon paragraph 21 of Sedley LJ's judgment in BA (Nigeria) in support of that argument.
  48. For my part I accept that pursuing the appeal from Jamaica will be more difficult than pursuing it from England. On the other hand, this proposed appeal will turn almost entirely on facts and evidence which are contained in the documents, such as medical reports. Also, the appellant can participate by video link. Having considered the conflicting arguments, I have concluded that the appellant can pursue an effective appeal from Jamaica.
  49. Let me now draw the threads together. Whenever a new right or remedy is established in the Court of Appeal, other litigants who might have taken advantage of that right or remedy, if only they had known about it earlier, will be disappointed. However, that is not normally a good reason to go back to earlier cases and unscramble decisions made by the parties on the basis of the law as previously understood.
  50. The correct analysis of this case is that the judicial review proceedings brought by the appellant served no useful purpose. The appellant could have appealed against the decision not to revoke the deportation order, but he did not do so. The appellant was deported pursuant to that decision. The deportation was lawful.
  51. In my view the first and main ground of appeal fails. This court has no power to order the Secretary of State to use his best endeavours to return the appellant to the United Kingdom. Alternatively, if the court has such a power, it should not exercise that power.
  52. Part 5. The Second Ground of Appeal
  53. The second ground of appeal is that the judge erred in his conclusion on the issue in the judicial review proceedings. He ought to have held that the submissions made on behalf of the appellant to the Secretary of State after 17th October 2006 amounted to a fresh claim. Accordingly, he ought to have held that the Secretary of State erred in coming to the contrary conclusion in his letter dated 23rd October 2008.
  54. The difficulty with this ground of appeal is that it leads nowhere. The judicial review proceedings, as we now know, served no useful purpose. The appellant's rights and his entitlement to appeal the Secretary of State's decision are unaffected by the question whether or not his submissions to the Secretary of State constituted a "fresh claim" within paragraph 353 of the Immigration Rules. If BA (Nigeria) had been decided before 30th October 2008, the judge would have dismissed the appellant's claim on the basis that there was no issue between the parties to be determined.
  55. This court will not entertain an appeal on an issue which has become academic. Therefore the appellant cannot succeed upon his second and subordinate ground of appeal.
  56. The overall result must be that this appeal is dismissed.
  57. Lord Justice Maurice Kay:

  58. I agree.
  59. President of the Family Division:

  60. I agree.


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