Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/08284/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 1 December 2016
On 20 December 2016

Before:

UPPER TRIBUNAL JUDGE GILL

Between

Rokib Hasan
(ANONYMITY ORDER NOT MADE)

Appellant
And

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr. M Q Hassan of M Q Hassan Solicitors
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS
Introduction:
1. The appellant appeals, with permission, against a decision of Judge of the First-tier Tribunal Malone promulgated on 30 June 2016 by which he decided that there was no valid appeal before the First-tier Tribunal ("FtT"). The judge decided the appeal on the papers as the appellant had requested (see below). The judge's decision concerned a Notice of appeal lodged with the FtT on 26 February 2015, section 2 of which identified the decision sought to be appealed as a decision that was dated 25 February 2015 and served on the same date and which related to an application made on 30 October 2012.
2. In the respondent's appeal bundle, there were three decisions made by the respondent in February 2015, as described at my para 3 below. None of them were dated 25 February 2015. The question therefore arises as to whether the appellant's appeal related to all three decisions or whether it related only to one of them and, if the latter, which one. In order to decide this question, it is necessary to consider the contents of the three decisions and the contents of the Notice of appeal and grounds of appeal.
3. Before turning to the three decisions made in February 2015, I should say that, as the appeal concerns an application that was made on 30 October 2012, the amendments to s.82 of the Nationality, Immigration and Asylum Act 2002 (the "2002 Act") made by the Immigration Act 2014 (the "2014 Act") do not apply.
4. The three decisions made by the respondent in February 2015 were as follows:
i. A decision - undated - entitled: "Refusal to grant leave to remain" which stated that the appellant did not have a right of appeal. This decision refused an application for leave to remain as a Tier 4 (General) Student. The Tier 4 application was a variation (dated 26 June 2014) of an earlier application made on 30 October 2012.
I shall hereafter refer to this decision as the "Refusal Decision". According to the respondent's reply (hereafter the "Respondent's Reply") dated 24 November 2016, this decision was prepared and printed on 13 January 2015 but not served then, to file or on the appellant but was placed on file ready to be served alongside a decision to remove under s.10(1)(b) of the Immigration and Asylum Act 1999 (the "1999 Act"). The Respondent's Reply stated that the Refusal Decision was served either on 22 February 2015 (the day the appellant was arrested) or two days later, on 24 February 2015. Para 6 of the grounds of appeal and para 1 of the appellant's amended grounds in his judicial review claim (see para 8.xii below) state that the Refusal Decision was served on the appellant on 25 February 2015.
ii. A decision dated 22 February 2015 to remove the appellant from the United Kingdom made under s.10 of the 1999 Act (form "IS.151A Part 2") which stated that the appellant had a right of appeal after he left the United Kingdom. I shall hereafter refer to this decision as the "Removal Decision".
iii. A document dated 22 February 2015 entitled: "Notice to a Person Liable to Removal" (form IS.151A) which stated that the appellant was "specifically considered a person who has overstayed the permitted period of [his] leave?".
The Removal Decision was taken on the basis of the information stated in the "Notice to a Person Liable to Removal" (form IS.151A) dated 22 February 2015.
5. The Refusal Decision states that it was considered that letters and a bank statement from First Security Islami Bank Ltd in the name of Mrs. Sofia Begum, the appellant's mother, submitted by the appellant in his previous application of 30 October 2012 were false. In addition, as the appellant had stated in his variation application of 26 June 2014 that he had never knowingly used deception when seeking leave to enter or remain, the decision maker was satisfied that he had also used deception in his variation application of 26 June 2014. The Secretary of State was not prepared to exercise her discretion in his favour. His variation application was therefore refused under para 245ZX(a) with reference to para 322(1A) and 322(2) of the Immigration Rules. In addition, as he had not submitted a valid "Confirmation of Acceptance for Studies", his application was also refused under para 245ZX(c) and 245ZX(d) of the Immigration Rules.
6. I turn to the Notice of appeal and the grounds of appeal. It is to be noted that:
i. As stated at para 1 above, section 2 of the Notice of appeal identified the decision sought to be appealed as a decision that was dated 25 February 2015 and served on the same date.
ii. Section 8 of the Notice of appeal, where the appellant was required to state his grounds of appeal if his appeal related to a non-asylum decision with which he disagreed, stated: "Please see enclosed grounds of appeal".
iii. The grounds of appeal attached to the Notice of appeal only referred to the Refusal Decision. Para 6 of the grounds of appeal states that the appellant was served by hand on 25 February 2015 an undated refusal decision of his Tier 4 application.
iv. The grounds, in effect, contend that the respondent's allegation, that the appellant had submitted false documents, was not in accordance with the law, erroneous in law and on the facts and in breach of the appellant's rights under Article 8. It is said that the respondent had not explained why the appellant was not given a right of appeal.
v. The Removal Decision is not mentioned in terms or referred to by implication anywhere in the Notice of appeal or the grounds accompanying it.
7. The judge decided that, as the appellant had not made an asylum or human rights claim, the appellant could not rely upon s.92(4) of the 2002 Act. He therefore had no "in-country" right of appeal. The judge did not make it clear whether he considered that the Notice of appeal sought to appeal the Refusal Decision or the Removal Decision or both.
Immigration history and background
8. The issue of jurisdiction that is before me is a simple one and does not require all the information that I have set out at i.-xvii. below. However, I have set out this detail for the reason given at para 18 below. The information has been obtained from the appellant's appeal file and the Upper Tribunal's file in relation to his judicial review claim (see below):
i. On 5 August 2009, the appellant entered the United Kingdom with leave granted pursuant to entry clearance issued on 1 August 2009 as a Tier 4 (General) Migrant valid until 31 October 2012.
ii. On 30 October 2012, the appellant applied for further leave to remain as a Tier 1 (Entrepreneur) Migrant.
iii. On 26 June 2014, he applied to vary his application of 30 October 2012 to an application for leave to remain as a Tier 4 (General) Migrant. The respondent agreed to treat his application as varied.
iv. On 22 February 2015, the appellant was arrested. It is clear that, on this date, the "Notice to a Person Liable to Removal" dated 22 February 2015 (form IS.151A) and the Removal Decision dated 22 February 2015 were served on him.
According to the Respondent's Reply, following the appellant's arrest, enquiries were made of the case database as to his status. It was incorrectly inferred that the Refusal Decision prepared and printed on 13 January 2015 had been served and that, as there was no application for leave since then, the appellant was an overstayer. This is the reason why the "Notice to a Person Liable to Removal" dated 22 February 2015 (form IS.151A) stated that the appellant was an overstayer rather than - as had been intended - a person considered to have used deception.
v. The next event was service of the Refusal Decision. As stated at para 4 above, this was served on the appellant (according to the respondent) either on 22 February 2015 or on 24 February 2015 and (according to the appellant) on 25 February 2015.
vi. On 26 February 2015, the appeal lodged with the FtT his Notice of appeal, the salient contents of which I have described above.
vii. On 2 March 2015, the respondent issued removal directions for the applicant's removal from the United Kingdom on 8 March 2015 in a document entitled: "Removal Directions" (form IS.151D) (hereafter the "Removal directions").
viii. On 4 March 2015, the appellant brought a judicial review claim in the Upper Tribunal (case number: JR-2627-2015). According to section 3 of the claim form and para 1 of the grounds that were lodged with the claim, the decisions sought to be challenged were as follows:
a. The undated Refusal Decision.
b. The "Notice to a Person Liable to Removal" (form IS.151A) dated 22 February 2015.
c. The Removal Directions dated 2 March 2015.
There were two grounds as follows: (1) that the respondent had produced inadequate proof of the deception; and (2) that it was unfair to deprive the appellant of a right of appeal.
ix. On 1 May 2015, the Secretary of State lodged her Acknowledgement of Service and summary grounds of defence in the judicial review proceedings. This states that the appellant had exercised his right of appeal against the decision served on 24 February 2015 which refused him leave. It then said: "The decision of 24 January 2015 is also the subject of challenge in the present judicial review proceedings". However, as can be seen from the above chronology, there was no decision of 24 January 2015 and, furthermore, the judicial review claim and grounds attached made no mention of any decision of 24 January 2015.
x. On 28 April 2015, the respondent issued the appellant with a "Notification to a Person Who is Liable to be Detained" (form IS.96) because he was "a person without leave who has been served with a notice of liability to removal".
xi. On 26 June 2015, the FtT sent the parties in the appellant's instant appeal a Notice of Hearing (form IA37) for a hearing on 5 February 2016.
xii. On 9 September 2015, the appellant made an application in his judicial review proceedings (JR-2627-2015) to amend his grounds of claim. The amendment application informed the Upper Tribunal (at para 3) that "the [appellant] has been given a right of appeal by the First-tier Tribunal (IAC) against the [Secretary of State's] decisions and has a substantive appeal hearing listed in the First-tier Tribunal for 5 February 2016". Para 4 of the amendment application stated that, in the light of the appeal, the appellant withdraws his grounds (1) and (2) in his judicial review claim. The amended grounds sought to challenge the following:
a. The decision to detain the appellant.
b. The decision to issue him with the "Notice to a Person Liable to Removal" (form IS.151A) dated 22 February 2015.
c. The Removal Directions dated 2 March 2015
His amended grounds, in summary, were that:
a) The appellant was unlawfully detained pursuant to the principle in R (Hardial Singh) v Governor of Durham Prison [1983] EWHC 1 (QB) and other relevant authorities.
b) Due to the appellant being unlawfully detained, his rights under Article 5 of the ECR have been breached.
c) The Secretary of State had acted unlawfully in issuing the appellant with a "Notification to a Person Who is Liable to be Detained" (form IS.96) dated 28 April 2015 was unlawful.
xiii. On 15 September 2015, the Upper Tribunal sent to the parties the decision of Upper Tribunal Judge Edwards in the appellant's judicial review proceedings (JR-2627-2015) by which Judge Edwards refused the appellant's application for permission to amend the grounds, stating (at para (2) of his decision) that the proposed additional grounds can be made the subject of a new application for judicial review proceedings and that there is no reason why the amended grounds sought to be relied upon could not have been included in the application as originally made. He therefore considered that the issue of transfer to the High Court did not arise. He also refused the application for permission to apply for judicial review and certified the claim as "totally without merit" stating as follows:
"(1) The [appellant] has a right of appeal to the First-tier Tribunal and has a hearing listed for 5 February 2016. Those proceedings are the appropriate forum for issues relating to his right to remain in the United Kingdom. In the circumstances, the other grounds are now academic."
xiv. On 5 February 2016, the appellant's appeal in the instant case was heard before Judge of the First-tier Tribunal Henderson who adjourned the hearing. The appeal file contains a typed "File Note" which is unsigned but was plainly written by the judge who heard the appeal on 5 February 2016. According to this "File Note" which plainly summarises what transpired at the hearing on 5 February 2016:
a. It was noted and accepted by the respondent's representative that the appellant had a right of appeal as the application was made prior to 2 March 2015.
b. It was also accepted by the respondent's representative that the "Notice to a Person Liable to Removal" (form IS.151A) was incorrectly issued.
c. The File Note states that the main issue in the case was whether the appellant had submitted false documents.
d. The respondent's representative sought an adjournment on the ground that the respondent's bundle of documents that had been sent to the Upper Tribunal on 3 February 2015 and the appellant had not been received by the Upper Tribunal or the appellant. The appellant opposed the adjournment request on the ground that he had already experienced a long delay since his initial application was made in 2012.
e. Whilst the judge accepted that the appellant had experienced a long delay, she considered, having regard to the overriding objective, that it was important for the FtT to have all necessary documents to deal properly with the issue of false documents.
xv. On 21 May 2016 and in relation to the instant appeal, the FtT sent to the parties a "Notice of Adjourned Hearing" (form IA42) informing them that the appeal was listed for hearing on 9 June 2016.
xvi. On 1 June 2016, the FtT received a letter dated 27 May 2016 from the appellant requesting that his appeal be decided on the papers because he had insufficient funds to pay for representation.
xvii. On 15 June 2016, Judge Malone decided the instant appeal on the papers. As stated earlier, he concluded that there was no valid appeal.
Submissions
9. At the hearing before me, Mr Hassan submitted that, as the appellant had made a valid in-time application on 30 October 2012 which he later varied, his leave was extended under s.3C of the Immigration Act 1971 (the "1971 Act"). His detention was therefore wrong. The Secretary of State had accepted that he was not an overstayer. Although Mr Hassan did not have the papers in the appellant's judicial review proceedings, he submitted that it had been accepted in the judicial review proceedings that the appellant had a right of appeal. The Order of Judge Edwards stated that the appellant had a right of appeal.
10. Mr Hassan asked me to consider "these facts and circumstances". Although he said that he accepted that there was no jurisdiction, he asked me to make a direction to the respondent to give the appellant a right of appeal as the respondent had accepted in the judicial review proceedings.
11. I announced that the Tribunal had no jurisdiction to entertain the appeal for reasons to be given in writing.
Assessment
12. It is clear from the File Note that the appellant believed that he had a substantive hearing and that the judge deciding his appeal on the papers would be considering his substantive challenge to the Refusal Decision. Judge Malone took the jurisdiction point without any notice to the appellant. In view of the contents of the File Note, I am satisfied that the decision of Judge Malone to take the jurisdiction issue without notice to the parties amounts to procedural unfairness amounting to an error of law. I therefore set aside his decision. I proceed to re-make the decision on the appellant's appeal.
13. As the case before me is a statutory appeal, the question whether or not the appellant has a right of appeal depends on whether there is a right of appeal under the relevant legislation. Jurisdiction cannot be agreed between the parties, nor can any considerations such as any perception of unfairness have any bearing on whether or not there was a right of appeal (see, for example, Virk v SSHD [2013] EWCA Civ 652). The Tribunal is a creature of statute. Unless there is a right of appeal under relevant legislation, the appellant cannot obtain a right of appeal because the parties conceded the issue. Accordingly, the fact that the respondent, the appellant and even the judge at the hearing on 5 February 2016 all accepted that there would be a substantive hearing cannot confer on the Tribunal jurisdiction to hear an appeal if there was in fact no right of appeal in law.
14. The following are my reasons for concluding that the appellant does not have a right of appeal and therefore there is no jurisdiction to entertain this appeal:
i. On any proper and reasonable construction of the appellant's Notice of appeal and grounds of appeal, the Notice of appeal sought to appeal against the Refusal Decision. There was no mention of the Removal Decision in the grounds of appeal in terms, nor can it be said that the grounds sought by implication to appeal the Removal Decision. To the contrary, the complaint in the grounds of appeal included a complaint that the respondent had not explained why the appellant did not had a right of appeal, a description which is consistent with the contents of the Refusal Decision but not the Removal Decision because the Removal Decision informed him that he did have a right of appeal which was exercisable after he had left the United Kingdom. There was nothing in the grounds of appeal that challenged the decision that his right of appeal was exercisable after he had left the United Kingdom.
ii. I have therefore decided that the appeal related to the Refusal Decision.
iii. Given that the appellant had not made an asylum or human rights claim, he could not rely upon s.92(4) of the 2002 Act. Accordingly, s.92(4) was not an avenue by which he could argue that he had an "in-country" right of appeal or any right of appeal.
iv. The Removal Decision was made on 22 February 2015. The chronology is that this decision was served on the appellant on 22 February 2015. Whether the Removal Decision was served simultaneously with the Refusal Decision or two or three days before the Refusal Decision, the effect of the Removal Decision being served is that the appellant's leave, which had been extended under s.3C of the 1971 Act up until service of the Removal Decision, was invalidated pursuant to s.10(8) of the 1999 Act.
Since the invalidation of the appellant's leave was automatic by operation of s.10(8) upon service of the Removal Decision, it simply cannot be said that the Refusal Decision was a refusal to vary as a consequence of which the appellant had no leave. The Refusal Decision had no effect on the appellant's leave. Put another way, the fact that the appellant was left with no leave did not arise from the Refusal Decision but from the automatic operation of s.10(8) of the 1999 Act upon service of an entirely different decision, namely the Removal Decision. Thus, the Refusal Decision was not an immigration decision that fell within the ambit of s.82(2)(d) of the 2002 Act.
v. The respondent plainly erred, as she accepts, in stating in the "Notice to a Person Liable to Removal" dated 22 February 2015 (form IS.151A) that the appellant was an overstayer given that, irrespective of whether the Refusal Decision and the Removal Decision were served simultaneously or two or three days apart, he was not an overstayer at the time that the "Notice to a Person Liable to Removal" was served on 22 February 2015.
However, this error was immaterial to the issue of whether the appellant had a right of appeal. This is because, given the automatic operation of s.10(8) of the 1999 Act, the Refusal Decision did not fall within the ambit of s.82(2)(d) of the 2002 Act as explained at para 14.iv above and s.92(4) of the 2002 Act did not apply as explained at para 14.iii above.
vi. Even if the appeal related to the Removal Decision (contrary to what I have said in para 14.i above), the appellant still cannot rely upon s.92(4) because he had not made an asylum or human rights claim
15. Whilst it appears that the FtT overlooked dealing with the issue of jurisdiction as a preliminary matter and proceeded to list the appellant's appeal for substantive hearing on 5 February 2016, it may be said that the appellant and his representatives as well as the Secretary of State in her summary grounds of defence in the judicial review claim acted prematurely in assuming that the appellant had an in-country right of appeal, apparently on the strength of the fact that his appeal had been listed for substantive hearing. Until the appeal proceedings were completed in the FtT, they could not, and should not, have acted on the assumption that no jurisdiction point would be taken given that there was no judicial decision made to the effect that the FtT did have jurisdiction. In the absence of such a judicial decision, even if the FtT had failed to take the jurisdiction point following a substantive hearing, the Upper Tribunal would have been obliged to do so if either party had been granted permission to appeal to the Upper Tribunal (see Virk).
16. I have considered whether to re-convene the appeal before me in light of the fact that I have set out (above) information obtained from the Upper Tribunal's file in the appellant's judicial review claim, much of which was not known to Mr Hassan because he told me that he did not have the appellant's papers in his judicial review claim. I have decided that this is unnecessary because the reasons for my decision on the jurisdiction issue, which are set out at paras 13 and 14 above, were all matters that were addressed at the hearing as they were plainly raised in the Respondent's Reply. The wider information I have set out in the chronology at para 8 above has no significance to the issue of jurisdiction before me. In particular, it can be seen that the Secretary of State did not concede in the judicial review proceedings that the appellant had a right of appeal. Like the appellant and his representatives, she merely assumed (prematurely) that he had a right of appeal in light of the fact that the FtT had listed the appellant's appeal for substantive hearing. In turn, Judge Edwards relied upon what he was told by the parties, that the appellant had a right of appeal before the FtT. His decision is not before me nor could it be. Finally, none of these matters can confer a right of appeal if none exists in law under the relevant legislation, as I have explained at paras 13 and 14 above.
17. Mr Hassan asked me to give a direction to the respondent to give the appellant a right of appeal because, in his submission, the Secretary of State had accepted in the judicial review proceedings that the appellant had a right of appeal. However, as I have said above, it is not the case that the Secretary of State conceded in the judicial review proceedings that the appellant had a right of appeal. She made the same premature assumption that the appellant and his representatives appeared to have made, that he did have a right of appeal simply because his appeal had been listed for substantive hearing. At the time when the Secretary of State filed her summary grounds of defence in the judicial review claim and the appellant made his application to amend his grounds in the judicial review claim, the hearing that was the subject of the File Note had not taken place. Further, and in any event, there is simply no legal basis upon which I could give such a direction, not least because the appellant has no right of appeal. Not even a general perception of unfairness or that "something may have gone wrong" can found the legal basis for giving such a direction.
18. It is clear from Mr Hassan's submissions that the appellant feels aggrieved on account of the mistakes that he perceives have been made in his case. It is largely for this reason that I have taken the time and trouble to collect the information I have set out at para 8 above, if only to demonstrate that I have considered all relevant material and not overlooked anything. I make the point that, in my view and for what it is worth, I do not consider that the outcome of his judicial review claim could have been any different even if grounds (1) and (2) had not been withdrawn. Ground 1, which took issue with the Secretary of State's case that the appellant had submitted false documents and used deception, could not have succeeded because the appellant has an alternative remedy, in that, he can bring an appeal against the Removal Decision after he has left the United Kingdom (R (Mehmood & Ali) v SSHD [2015] EWCA Civ 744). He still has that alternative remedy. Ground 2, which took issue with the fact that there was no right of appeal against the Refusal Decision, could not have succeeded (again, see Mehmood and Ali).

Decision

The making of the decision of the First-tier Tribunal involved the making of an error on a point of law such that it falls to be set aside. The Upper Tribunal set aside the decision of the First-tier Tribunal and proceeded to re-make the decision on the appeal. The decision is that the appellant does not have a right of appeal against the respondent's decision.

Upper Tribunal Judge Gill Date: 17 December 2016