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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Patel & Ors v Secretary of State for the Home Department [2013] UKSC 72 (20 November 2013) URL: http://www.bailii.org/uk/cases/UKSC/2013/72.html Cite as: [2014] INLR 205, [2013] UKSC 72, [2013] WLR(D) 450, [2014] 1 All ER 1157, [2013] 3 WLR 1517, [2014] Imm AR 456, [2014] AC 651, [2014] 1 AC 651 |
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Michaelmas Term
[2013] UKSC 72
On appeal from: [2012] EWCA Civ 741; [2012] EWCA Civ 960
JUDGMENT
Patel and others (Appellants) v Secretary of State for the Home Department (Respondent)
Anwar (Appellant) v Secretary of State for the Home Department (Respondent)
Alam (Appellant) v Secretary of State for the Home Department (Respondent)
before
Lord Mance
Lord Kerr
Lord Reed
Lord Carnwath
Lord Hughes
JUDGMENT GIVEN ON
20 November 2013
Heard on 3 and 4 July 2013
Appellants (Patel and others) Zane Malik (Instructed by Malik Law Chambers Solicitors) |
Respondent Jonathan Swift QC David Blundell (Instructed by Treasury Solicitors) |
|
Appellant (Anwar) Zane Malik Shahadoth Karim (Instructed by Malik Law Chambers Solicitors) |
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Appellant (Alam) Zane Malik Shahadoth Karim (Instructed by Kalam Solicitors) |
LORD CARNWATH (with whom Lord Kerr, Lord Reed and Lord Hughes agree)
Facts
The Patels
Mr Alam
" I have considered the circumstances in which the claimant has failed to meet the Rules: viz. that he is one of a necessarily fixed class whose ability to prove compliance with the Rules has changed by operation of law since he began his appeal proceedings. Those circumstances do, to some extent, diminish the State's interest in removing the claimant, merely in order to maintain the integrity of the Rules. If the claimant's article 8 rights had been any stronger, I might well have concluded in the circumstances that his removal in consequence of the immigration decision would be disproportionate. As it is, however, I consider that the balance falls to be struck in favour of the Secretary of State." (para 22)
Mr Anwar
The issues
Patel
i) Whether there is an obligation on the Secretary of State to issue a decision to remove at the same time as or immediately after refusing an individual's application for variation of leave to remain in the United Kingdom.
ii) Whether there is an obligation on the Secretary of State to issue a one-stop notice under section 120 of the 2002 Act when refusing an individual's application for variation of leave to remain in the United Kingdom.
iii) Whether the Secretary of State's refusal to vary an individual's leave to remain in the United Kingdom is unlawful if it is issued in isolation from a one-stop notice or a decision to remove.
Alam/Anwar
iv) Whether the conclusion of the majority in AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076, [2011] 1 WLR 385, that an appeal to the FTT covers not only any ground before the Secretary of State when she made the decision under appeal but also any grounds raised in response to a one-stop notice issued under section 120 of the 2002 Act, 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, is correct.
v) Whether the statements and evidence filed by Mr Alam and Mr Anwar to the FTT amounted to "additional grounds" under section 120 of the 2002 Act which the FTT was obliged to consider and determine, notwithstanding the bar in section 85A of that Act.
vi) In an article 8 case, when balancing the demands of fair and firm immigration control against the disruption to the family or private life of a person if removed for non-compliance with the Immigration Rules, whether the nature and degree of the non-compliance is significant or, as the Court of Appeal has held (in Miah v Secretary of State for the Home Department [2012] EWCA Civ 261; [2013] QB 35), irrelevant.
The statutory provisions
"(a) that the decision is not in accordance with immigration rules;
(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights;
(e) that the decision is otherwise not in accordance with the law;
(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;
(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."
"(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.
(5) But subsection (4) is subject to the exceptions in section 85A."
"(3) Exception 2 applies to an appeal under section 82(1) if
(a) the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d),
(b) the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a 'Points Based System', and
(c) the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f).
(4) Where Exception 2 applies the Tribunal may consider evidence adduced by the appellant only if it
(a) was submitted in support of, and at the time of making, the application to which the immigration decision related,
(b) relates to the appeal in so far as it relies on grounds other than those specified in subsection (3)(c),
(c) is adduced to prove that a document is genuine or valid, or
(d) is adduced in connection with the Secretary of State's reliance on a discretion under immigration rules, or compliance with a requirement of immigration rules, to refuse an application on grounds not related to the acquisition of 'points' under the 'Points Based System'."
One-stop notice
"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 to 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."
" the Secretary of State or an immigration officer certifies:
(a) that the person received notice under section 120 by virtue of a decision other than the new decision,
(b) that the new decision relates to an application which relies on a matter that should have been, but has not been raised in a statement made in response to that notice, and
(c) that, in the 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 in response to that notice."
Removal decisions
"(a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;"
By subsection (9) the reasonable costs of complying with the direction must be met by the Secretary of State.
"(1) Where a person's leave to enter or remain in the United Kingdom is extended by section 3C(2)(b) , the Secretary of State may decide that the person is to be removed from the United Kingdom, in accordance with directions to be given by an immigration officer if and when the leave ends."
Again the costs of compliance must be met by the Secretary of State (section 47(4)). For completeness, I note that on 8 May 2013 (after the time relevant for the present appeals) a new form of the section was inserted, providing for notice of a "pre-removal decision" (which includes the decision on an application to vary leave to remain) to be given at the same time as the removal direction under section 47. This change was designed to deal with a practical problem arising from Sapkota which had been highlighted by a subsequent decision of the Upper Tribunal (upheld by the Court of Appeal). It is not directly material to the present appeals.
The Patel appeals
"This language is clearly and unequivocally the language of discretion, not duty, and it is simply not open to the court to interpret it as imposing a duty. For the court to do so is to amend the legislation, not to interpret it."
"For every person whose real claim is one outside the Rules, there are many who merely want a decision in accordance with the Rules and would either voluntarily depart or make a fresh application if that appeal were to be unsuccessful. Further, the developing jurisprudence of the Upper Tribunal has moved beyond the proposition that human rights only arise on removal decisions, to cases where variation of leave applications may need to take into account a wide variety of aspects of private life under article 8 rights, thereby enabling an independent assessment of this claim to remain without the person concerned running the risk of breaking the law." (para 32)
The Alam/Anwar appeals
Scope of appeal
"A ground of appeal is not a ground of appeal 'against the decision appealed against' if it would not, if accepted, lead to its reversal, as opposed to its being superseded by a new decision on the new evidence that leave to enter or remain should be granted." (para 30)
On the other hand the first ground of appeal under section 84(1) is that the immigration decision "is" not (not "was not") in accordance with the Rules; and in considering that question the tribunal is specifically empowered (subject to the exceptions in section 85A) to have regard to evidence concerning "a matter arising after the date of appeal".
"... 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 a 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."
" a decision on a matter under the Immigration Rules is a decision on the detailed eligibility of an individual by reference to the particular requirements of the rule in question in the context of an application that that person has made."
"Since section 85(2) is concerned with statements of additional grounds which must include any reasons why an appellant should be allowed to remain, and which are expressly not confined to the reasons why he should be allowed to remain under rule x of the Rules, I am not persuaded that the reference to 'the decision appealed against' must be 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, being one of the immigration decisions as defined by section 82 (2). Such an approach to section 85 (2) would be consistent with the reference in section 85 (4) to 'the substance of the decision'." (para 113)
"On the other hand, it is possible to vary the grounds of an application already made, even by introducing something completely new. A student application can be varied so as to include marriage grounds. If an application is varied before a decision is made, the applicant will be required to complete the necessary prescribed form to vary his application. If an application is varied post decision, it would be open to the applicant to submit further grounds to be considered at appeal Once an application has been decided it ceases to be an application and there is no longer any application to vary under section 3C(5). So any new information will fall to be dealt with during the course of the appeal rather than as a variation of the original application." (para 3.2 emphasis added)
" including a matter arising after the decision which is relevant to the substance of the decision regardless of whether a one-stop notice has been served. The 'substance of the decision' is not the decision maker's reasoned response to the particular application or factual situation that was before it but is one of the immigration decisions enumerated in section 82 and a 'matter' includes anything capable of supporting a fresh application to the decision maker "
Whether or not such an extension of the majority's reasoning can be supported, that passage indicates that the broader approach in itself is not controversial.
"... it seems to me that appellants would have good reason to question the coherence of the statutory scheme if they were then to be told by the AIT that it had no jurisdiction to consider the additional ground that they had been ordered by both the Secretary of State and the AIT to put forward." (para 99)
Merits of appeal
"There appears to me, in this situation, to be no escape from the proposition that in exercising her powers, whether within or outside the rules of practice for the time being in force, the Home Secretary must have regard and give effect to applicants' Convention rights. This will mean in most cases evaluating the extent and quality of their family and private life in the United Kingdom and the implications, both for them and for the United Kingdom, of truncating their careers here.
That in turn will require consideration of the significance of the criteria by which their eligibility has been gauged and found wanting. It is one thing to expect an applicant to have the necessary academic and linguistic qualifications: here a miss is likely to be as good as a mile. It is another for an applicant to fall marginally or momentarily short of a financial criterion which in itself has no meaning: its significance is as a rough and ready measure of the applicant's ability to continue to live without reliance on public funds. Having £800 in the bank, whether for three continuous months or simply at the date of application, is no doubt some indication of this; but people who are able to meet the test may fall on hard times after obtaining indefinite leave to remain, and others who fail it would, if allowed to remain, never become a charge on public funds. The Home Office has to exercise some common sense about this if it is not to make decisions which disproportionately deny respect to the private and family lives of graduates who by definition have been settled here for some years and are otherwise eligible for Tier 1 entry. If the Home Secretary wishes the rules to be blackletter law, she needs to achieve this by an established legislative route."
" one is entitled to see, whether in all the circumstances, this case falls within the spirit of the Rules or the policies, even if not within the letter."
Ward LJ added:
"That seems to us to be the right approach. As Simon Brown L.J. said in Ekinci at paragraph 16:
'Even if strictly he fails to qualify so that the ECO would be prohibited from granting leave to enter, given the obvious article 8 dimension to the case the ECO would refer the application to an Immigration Officer who undoubtedly has a discretion to admit someone outside the Rules. And if entry were to be refused at that stage, then indeed a section 59 right of appeal would certainly arise in which, by virtue of section 65(3), (4) and (5) the adjudicator would have jurisdiction to consider the appellant's human rights.'"
(I note in passing that those comments of Simon Brown LJ were made with reference to the rather different appeal provisions of the Immigration and Asylum Act 1999, and were directed specifically to a case with an "obvious article 8 dimension".)
" the terms of the immigration rules are not a legitimate aim in their own right A judgment needs to be made as to how significant the aim, and how far the removal of the particular claimant in the circumstances of her case is necessary to promote that aim. The mere fact a genuine spouse lawfully admitted with her British citizen husband and settled children can no longer meet one requirement of the rules through no fault of her own is unlikely to amount to a weighty reason to justify interference with family life here that is otherwise to be respected."
"There is an inverse relationship between the degree to which there is compliance with the rules and the immigration policy imperative which demands that unsuccessful applicants be removed" (paras 9-10).
" I find Lord Bingham's reference in para 6 to 'rules, to be administratively workable, [requiring] that a line be drawn somewhere' and in para 16 to
'the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory'
to be helpful and generally inconsistent with a 'near-miss' principle."
"28. This argument is, in my view, based on a misconception. The Secretary of State is of course entitled to have a policy. The promulgation of the policy normally creates a legitimate expectation that it will be applied to those falling within its scope unless there is good reason for making an exception. So much is trite law. It is also trite law that the existence of the policy does not excuse the decision-maker from due consideration of cases falling outside it. However, the law knows no 'near-miss' principle. There is no presumption that those falling just outside the policy should be treated as though they were within it, or given special consideration for that reason."
"Finally, quite apart from authority, I prefer the approach stated in Mongoto's case and Rudi's case . A rule is a rule. The considerations to which Lord Bingham referred in Huang's case require rules to be treated as such. Moreover, once an apparently bright-line rule is regarded as subject to a near-miss penumbra, and a decision is made in favour of a near-miss applicant on that basis, another applicant will appear claiming to be a near miss to that near miss. There would be a steep slope away from predictable rules, the efficacy and utility of which would be undermined.
For these reasons, I would dismiss the appeal in relation to the 'near-miss' argument. In my judgment, there is no 'near-miss' principle applicable to the Immigration Rules. The Secretary of State, and on appeal the tribunal, must assess the strength of an article 8 claim, but the requirements of immigration control are not weakened by the degree of non-compliance with the Immigration Rules."
"Such a rule, which does not lack a rational basis, is not to be stigmatised as arbitrary or objectionable. But an applicant's failure to qualify under the rules is for present purposes the point at which to begin, not end, consideration of the claim under article 8. The terms of the rules are relevant to that consideration, but they are not determinative."
"Collins J's statement, on which the court relied [in SB], seems unexceptionable. It is saying no more, as I read it, than that the practical or compassionate considerations which underlie the policy are also likely to be relevant to the cases of those who fall just outside it, and to that extent may add weight to their argument for exceptional treatment. He is not saying that there arises any presumption or expectation that the policy will be extended to embrace them." (para 31(ii))
(My reference to "exceptional treatment" needs to be read now in the light of Huang para 20 in which Lord Bingham made clear that, contrary to previous Court of Appeal case-law, there was no separate "test of exceptionality".)
The present appeals
Conclusion
LORD MANCE (with whom Lord Kerr, Lord Reed and Lord Hughes agree)