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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Nirula v First Tier Tribunal  EWHC 3336 (Admin) (18 November 2011)
Cite as:  EWHC 3336 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
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165 Fleet Street London EC4A 2DY
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(Official Shorthand Writers to the Court)
Mr C Thomann (instructed by Treasury Solicitor) appeared on behalf of the Defendant
Crown Copyright ©
i. "The Secretary of State's decision is not in accordance with the Immigration Rules.
ii. The decision is unlawful because it is incompatible with the appellant's rights under the European Convention on Human Rights.
iii. The decision to remove the appellant from the United Kingdom is unlawful.
iv. The decision is otherwise not in accordance with the law.
v. The discretion under the Immigration Rules should have been exercised differently.
The Secretary of State has failed to consider the fact that the
appellant has been in the UK for many years. He has an
established family and private life in the UK. He has a wife and
child in the UK. The child was born in the UK.
In the time he has been in the UK he has also built a private life here. The Secretary of State has failed to consider the appellant's lengthy stay in the UK and the significant bonds he has formed whilst in the UK.
In all the circumstances, it would be disproportionate and unlawful for the Secretary of State to remove the appellant from the UK.
The appellant and his representatives reserve the right to amend or elaborate on these grounds at a later date."
i. "(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' ... [and there is a list, including]
ii. (h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule to the Immigration Act 1971."
"(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. (2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f), (ha) and (j)
(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, or(b) is an EEA national or a member of the family of an EEA national and makes a claim to the Secretary of State that the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom."
"'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 to require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 ... As being incompatible with his Convention rights."
"(1) The Secretary of State may make Regulations requiring a person to be given written notice where an immigration decision is taken in respect of him.
(2)The regulations may, in particular, provide that a notice under subsection (1) of a decision against which the person is entitled to appeal under section 82(1) must state —
(a)that there is a right of appeal under that section, and; (b)how and when that right may be exercised.
(3)The regulations may make provision (which may include presumptions) about service."
19. Was the AIT right in Ms Pengeyo's and Mr Anwar's cases to hold that the respective immigration judges had acted without jurisdiction? In my judgment they had jurisdiction to embark on the hearing notwithstanding that neither appellant had left the United Kingdom, but once the point was taken by the Home Office (and assuming it to be factually correct, since they might have been absent from the hearing) it operated in bar of the proceedings. Had the point not been taken in either case, the immigration judge would have been bound to proceed with the appeal.
20. The reason for this ostensibly subtle distinction is one which matters. It is the distinction between constitutive and adjudicative jurisdiction which I sought to draw in a dissenting judgment in Carter v Ahsan  EWCA Civ 990, ICR 1817, §16-27, which secured approval on appeal  UKHL 51, 1 AC 696. The constitutive jurisdiction of a tribunal is the power to embark upon trying specified kinds of issue. Whether a foreign national has obtained leave to enter or remain by deception is, by common consent, such an issue. Its adjudicative jurisdiction may then depend on a number of factors, such as whether the appeal has been brought within time or – as here - whether the appellant has left the United Kingdom.
21. This in turn may depend on several other things. First it must depend on whether the out-of-country rule applies at all, which is likely to be a mixed question of fact and law. IJ Callender-Smith concluded in Mr Anwar's case that it did not apply. Secondly it may depend on whether the appellant has in fact left the country: he or she may be absent from the hearing but not, or allegedly not, from the United Kingdom. This will then be a triable issue. Until such issues have been decided it is impossible to say that the tribunal cannot hear the appeal.
22. One must not, of course, lose sight of the words of s.92(1) of the 2002 Act: "A person may not appeal … while he is in the United Kingdom unless his appeal is of a kind to which this section applies" – and the section does not apply to an appeal against a deception decision under s.10(b): see s. 82(2)(g). But it is not every such formula which bars the door to justice. To take only the best-known example, the Limitation Act 1980, s. 2, provides: "An action founded in tort shall not be brought after the expiration of six years from the date on which the cause of action accrued." It is trite law that unless the point is taken, this provision constitutes no bar. In consequence it can be waived by agreement or by unilateral decision. Another example can be found in requirements for leave to bring proceedings: see Adorian v Metropolitan Police Commissioner  EWCA Civ 18.
23. Any apparently absolute bar to justice has to be scrutinised very carefully. The one contained in the 2002 Act is not of the kind which operates independently of the will of either party so as to bind the tribunal regardless. It offers a point which can be but need not be taken. In the present two cases, it was taken."
(a) There is no reference in his remarks to the terms of the Notice of Decision. If the terms of the Notice of Decision are not to be regarded as the Secretary of State taking the point, then that conclusion may be thought to require some explanation.
(b) The suggestion implicit in Anwar, and explicit in Mr Malik's submissions to me, that the point has to be taken by the party affected and cannot be taken by the Tribunal as decision-maker, does not appear to be founded on any authority.
(c) Equally difficult to accommodate to authority is the suggestion that, where jurisdiction depends on the existence of a jurisdictional fact -- here, the absence of the proposed appellant from the United Kingdom -- a failure to consider the issue at all gives the Tribunal a jurisdiction which it otherwise would not have.
"If a certain state of facts has to exist before an inferior tribunal have jurisdiction, they can inquire into the facts in order to decide whether or not they have jurisdiction but cannot give themselves jurisdiction by a wrong decision upon them."
1. The purported appeal to the First-tier Tribunal appears to have been out of time in any event. The date of the decision was, as I have said, 27 August 2010. Mr Malik claimed, on the claimant's behalf, not to know the date of the Notice of Appeal, and only the grounds of appeal attached to that notice have been produced to this court.
2. The decision of the First-tier Tribunal carried a right of appeal to the Upper Tribunal, with permission. That is the consequence of the observations of Richards LJ in JH (Zimbabwe) v Secretary of State for the Home Department  EWCA Civ 78, as interpreted and applied in a decision made by me in the Upper Tribunal in Abiyat and others (rights of appeal) Iran  UKUT 00314(IAC). The claimant chose not to exercise that right, which would have required a swift Notice of Appeal; instead, the claimant chose to pursue the slower and more expensive process of judicial review.
3. The application for judicial review was out of time. I extended time for the purposes of granting permission. But there is, on the facts, in my judgment, no good reason to accept the assertion that the First-tier Tribunal decision that was issued, and which was sent to both the claimant and his solicitors, did not arrive in time. The solicitors claimed that they had not received it when it was originally sent out. But, in any event, the decision was required by the Rules to be sent to the claimant as well. It has not been said that it was not. Service on him would start the running of time.
"If asylum or HR is claimed after serving the IS151A part 2, and removal directions are in place then refer to OSCU for advice before suspending the removal directions. Otherwise withdraw the IS151A part 2 and where the applicant will get an in country appeal right serve an IS151B with any refusal of the claim."