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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Firdaws, R (On the Application Of) v First Tier Tribunal (IAC) & Anor  EWCA Civ 1310 (25 July 2019)
Cite as:  EWCA Civ 1310
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ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Macleman
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SIMLER
| THE QUEEN (on the application of MOHAMED ASHAD MOHAMED FIRDAWS)
|- and -
|(1) FIRST TIER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
(2) THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Zane Malik (instructed by The Government Legal Department) for the Respondent
Hearing date: 16 July 2019
Crown Copyright ©
Lord Justice Irwin:
Facts and background
"whilst it is acknowledged that you currently enjoy living and studying in the United Kingdom this does not give you the right to do so on an exceptional basis. The Secretary of State is satisfied that you have provided no compelling or compassionate reasons why you should be granted leave to remain outside the rules and is therefore not prepared to exercise her discretion in your favour. Your application for leave to remain in the United Kingdom is therefore refused.
You made an application on 27 February 2015. However, your leave to remain expired on 13 February 2015. You therefore did not have leave to enter or remain at the time of your application.
Your application for leave to remain in the United Kingdom has been refused and you no longer have any known basis of stay here. There is no right of appeal against this refusal."
"However the Appellant had no extant leave to enter or remain at the date of the decision and this has not been challenged by the Appellant in his grounds of appeal. It is argued by the Respondent that the Appellant does not have a right to appeal under s.82 Nationality, Immigration and Asylum Act 2002 (prior to the amendment by Sct 15 of the Immigration Act (2014) because his leave was curtailed on 13 February 2015 in a letter dated 10 December 2014. The Appellant's representative states at paragraph 4 of the grounds of appeal that the Appellant's former representative was notified by the Respondent that a notice of curtailment had been forwarded to the Appellant notifying him that his leave extant until 28 February 2015 had been curtailed to 13 February 2015.
I am satisfied that the Appellant has no right of appeal as the decision is not one that fell within the definition of an immigration decision as set out in Section 82(2). This is because the Appellant had no leave to remain at the date of the decision and the refusal to vary leave to remain was only permitted under Section 82(d) of the Nationality, Immigration and Asylum Act 2002 if the result of the refusal is that the person has no leave to remain.
In any event I note that the notice of appeal appears to be out of time; it is signed and dated the 6 October 2016 and the Respondent's decision is dated 30 March 2015. By virtue of Rule 19(2) of the Tribunal Procedure (First-Tribunal) (Immigration and Asylum Chamber) Rules 2014 the Appellants had a period of 14 days from the date after they were sent the notice of decision to lodge the appeal with the Tribunal. Calculating the period for lodging the appeal in accordance with Rule 19(2) the notice of appeal should have been filed with the Tribunal on or before 13 April 2015. The Tribunal file shows that the notices of appeal were received by the Arnhem Support Centre on 7 October 2016. I am satisfied that the appeal is substantially out of time by 18 months. I am not satisfied that the Appellant has provided a credible explanation for the delay of over 18 months in submitting the notice of appeal. I am unable to identify any special circumstances relating to the Appeal which would render it unjust not to exercise my discretion under Rule 4 by extending time.
I conclude that there is no relevant decision and therefore no pending appeal. It follows that the Tribunal has no jurisdiction to consider the Appellant's notices of appeal."
"It is entirely clear that there is no right of appeal against a refusal if the applicant does not have leave to enter or remain at the time of the application. It was a contention of the applicant that the decision to curtail his leave dated 10th December 2014 was not effectively served and therefore that his leave had not in fact been curtailed. The second respondent relies upon paragraphs 8ZA and 8ZB of the Immigration Rules that took effect on 12th July 2013, which placed the burden upon the applicant to demonstrate that service had not been effective. It is the contention of the respondent that he has failed to do so.
The grounds of application simply state that the burden rests upon the respondent to show due service of the curtailment notice, but that is incorrect in the light of the new Immigration Rules. No evidence is presented in the grounds to substantiate the contention that service was not effected.
In all the circumstances it is not arguable otherwise than that the second respondent was entitled to treat the curtailment notice as validly served upon the applicant such as to justify the decision made on 30th March 2015. In the circumstances it is not arguable that the decision of the Secretary of State was otherwise than reasonable and lawful. Similarly, there is no argument otherwise that that the decision of the First-tier Tribunal in declining jurisdiction to challenge that decision was also both reasonable and lawful."
"9. It was agreed in course of debate that the material part of the rules is at [8ZB]: "where a notice is sent in accordance with rule 8ZA, it shall be deemed to have been given to the person affected unless the contrary is proved."
10. Mr Hawkin submitted that the respondent retains an initial obligation to show that the notice was sent; that it is not discharged by mere production of a copy; and the narration of the immigration history in defence, accompanied by a declaration of truth, was insufficient.
11. My view is that the respondent does have to show that notice was sent, but that takes no more than production of a copy and confirmation that the records show it was issued. On the facts advanced here, however, that would not be the nub of the matter.
12. The applicant's case, if matters were to reach the stage of a trial of the facts, depends not on showing that the notice was never sent, but on showing that he never received it, because it went to the wrong address, and that fault was on the respondent's side, not on his.
13. The first hurdle is whether the decision of the FtT, based on the information before it, might arguable be an unlawful one.
14. The proposed grounds of appeal to the FtT said at , "the appellant is entitled to plead that the decision…of 10/12/14 was never formally served on him."
15. That may well be right as an abstract statement; but it was no more than that.
16. The FtT decision notes that  of the grounds stated that "the appellant's former representative was notified by the respondent that a notice of curtailment had been forwarded to the appellant notifying him that his leave… had been curtailed…"
17. Matters might have been different if there had been a specific offer to prove non-receipt, by way of the notification of a change of address, not acted upon by the respondent; but the grounds were silent.
18. There was nothing before the FtT by which any other outcome might sensibly have been expected.
19. Equally, there is nothing in the grounds or in the renewal grounds to suggest that on the information before the decision-maker on 30/3/15, the outcome should have been otherwise."
"The Human Rights Application refused in 2015, was not certified but refused without a right of appeal. This was yet another procedural error that the Learned Judge at the reconsideration hearing failed to take issue over. A Human Rights Claim that had not been certified ought to have been either (i) granted an in-country right of appeal by the R1; or (ii) returned to the R2 for determination on the basis that the decision had not been made."
"There is a real prospect of success in arguing that the FTT and the UT applied section 82(d) Nationality, Immigration and Asylum Act 2002 in the wrong form prior to its amendment and were wrong to decide that there was no right of appeal."
"(2) In this Part "immigration decision" means –
(d) refusal to vary a person's leave to enter or remain … if the result of the refusal is that the person has no leave to enter or remain."
(2) for section 82 substitute –
"82 Right of appeal to the Tribunal
(1) A person ("P") may appeal to the Tribunal where –
(b) the Secretary of State has decided to refuse a human rights claim made by P, or
Commencement of Section 15(2) of the 2014 Act
Commencement Order 3
"2. The day appointed for the coming into force of the following provisions of the Act, subject to the saving provisions in articles 9, 10 and 11, is 20th October 2014 –
(b) Section 15
"Transitional and saving provision
9. Notwithstanding the commencement of the relevant provisions, the saved provisions continue to have effect, [emphasis added] and the relevant provisions do not have effect, other than so far as they relate to the persons set out respectively in articles 10 and 11, unless article 11(2) or (3) applies [emphasis added]."
"Transitional and saving provision
11. - (1) The persons referred to in article 9 are a person ("P2") who makes an application on or after 20th October 2014 for leave to remain—
(a) as a Tier 4 Migrant;
(2) The saved provisions have effect, and the relevant provisions do not have effect, where P2, having made an application of a kind mentioned in paragraph (1), at any time thereafter makes—
(a) an application for leave to enter; or
(b) any further application for leave to remain which is not of a kind that is mentioned in paragraph (1);
provided the subsequent application is not a protection claim or human rights claim, made while P2 is in the United Kingdom, other than at a port.
(3) Where paragraph (2) applies, the saved provisions also have effect, and the relevant provisions do not have effect, where a decision is taken in relation to P2—
(a) which constitutes an immigration decision under section 82(2) of the 2002 Act as in force immediately prior to 20th October 2014; or
(b) to which section 83 or 83A of the 2002 Act as in force immediately prior to 20th October 2014 applies.
(4) Where the relevant provisions apply, and an appeal has already been brought against an immigration decision under section 82(1) of the 2002 Act but before the relevant provisions applied, the reference to a "decision" in section 96(1)(a) of the 2002 Act is to be read as a reference to an "immigration decision".
(5) In this article—
(a) "human rights claim" means—
(i) a claim made by a person to 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 Convention); or
(ii) an application for leave to remain made under paragraph 276ADE of, or Appendix FM to, the immigration rules;
(b) "immigration decision" has the same meaning as in section 82(2) of the 2002 Act as in force immediately prior to 20th October 2014;
(c) "immigration rules" means the rules for the time being laid down by the Secretary of State as mentioned in section 3(2) of the 1971 Act;
(d) "Leave to enter the United Kingdom" means leave to enter the United Kingdom given in accordance with the provisions of, or made under, the 1971 Act;
(e) "Leave to remain in the United Kingdom" means leave to remain in the United Kingdom given in accordance with the provisions of, or made under, the 1971 Act and any variation of leave to enter or remain by the Secretary of State;
(f) "port" has the meaning in section 33(1) of the 1971 Act(1);
(g) "protection claim" has the meaning given in section 82(2) of the 2002 Act;
(h) "protection status" has the meaning given in section 82(2) of the 2002 Act;
(i) "Tier 4 Migrant" has the same meaning as provided in the immigration rules."
"at any time thereafter makes … any further application for leave to remain … which is not of a kind … mentioned in paragraph (1); provided the subsequent application is not a protection claim or human rights claim, made while [that person] is in the United Kingdom, other than at a port."
i) Does the person fall within Article 11(1): here, did the Appellant make an application after 20 October 2014 for leave to remain as a Tier 4 migrant?
ii) If yes, did the person thereafter make a further application for leave to remain, other than as a Tier 4 migrant?
iii) If yes, was that further application
a) a protection claim or human rights claim,
b) made whilst the person is in the United Kingdom,
c) other than at a port?
Commencement Order No 4
"9. – (1) Notwithstanding the commencement of the relevant provisions, the saved provisions continue to have effect and the relevant provisions do not have effect so far as they relate to the following decisions of the Secretary of State –
(a) a decision made on or after 6th April 2015 to refuse an application to vary leave to enter or remain made before 20th October 2014 where the person was seeking leave to remain as a Tier 4 Migrant or as the family member of a Tier 4 Migrant and where the result of that decision is that the applicant has no leave to enter or remain;
(b) a decision made on or after 6th April 2015 to refuse an application to vary leave to enter or remain made before 2nd March 2015 where the person was seeking leave to remain as a Tier 1 Migrant or (as the case may be), Tier 2 Migrant or Tier 5 Migrant or as the family member of a Tier 1 Migrant, a Tier 2 Migrant or a Tier 5 Migrant and where the result of that decision is that the applicant has no leave to enter or remain;
(c) a decision made on or after 6th April 2015 (so far as that is not a decision mentioned in sub-paragraph (a) or (b)) to refuse an application made before 6th April 2015, where that decision is –
(i) to refuse leave to enter;
(ii) to refuse entry clearance;
(iii) to refuse a certificate of entitlement under section 10 of the 2002 Act (1);
(iv) to refuse to vary a person's leave to enter or remain and where the result of that decision is that the person has no leave to enter or remain; unless that decision is also a refusal of an asylum, protection or human rights claim.
(d) a decision made before 6th April 2015 in relation to which, immediately before 6th April 2015, an appeal could have been brought or was pending under the saved provisions.
(4) In article 11, omit paragraphs (1), (1A), (2), (3) and (5)(a) and (c) to (i)."
"The Appellant's contention that this version of section 82(1)(b) of the 2002 Act came into force on 20 October 2014 and was applicable to his case is simply misconceived. For the purpose of the Appellant's case, this version came into force on 6 April 2015. It was not in force when the Secretary of State took his decision, namely, on 30 March 2015."
1. Immigration (Treatment of Claimants, etc) Act 2004(a), section 47 of the Immigration, Asylum and Nationality Act 2006(b) and paragraph 19(10) of Schedule 1 to the Legal Aid, sentencing and Punishment of Offenders Act 2012(c), as in force immediately prior to 20th October 2014.
Provisions coming into force on 20th October 2014 subject to saving provision
2. The day appointed for the coming into force of the following provisions of the Act, subject to the saving provision in articles 9, 10 and 11, is 20th October 2014 -"
"9(1) Notwithstanding the commencement of the relevant provisions [the "new test"], the saved provisions [the "old test"] continue to have effect … so far as they relate to the following decisions of the Secretary of State –
(d) a decision made before 6th April 2015 in relation to which, immediately before 6th April 2015, an appeal could have been brought or was pending under the saved provisions."
Lady Justice Simler: