Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/38663/2014
IA/38668/2014
IA/38670/2014

THE IMMIGRATION ACTS

Heard at Field House
Directions given orally and confirmed in writing on:
On 25 October 2016
On 6 December 2016

Before:

UPPER TRIBUNAL JUDGE GILL

Between

Anton [G]
Anne [A]
[M G]
(ANONYMITY ORDER NOT MADE)
Appellants
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellants: Ms. S Pinder, of Counsel, instructed by Polpitiya & Co Solicitors.
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer
(1) DECISION ON JURISDICTION
(2) NOTICE OF WITHDRAWAL AND REASONS FOR THE TRIBUNAL GIVING CONSENT
1. These appeals were listed for hearing before me on 2 December 2015, 4 March 2016 and 25 October 2016. At the hearing on 25 October 2016, Mr Tarlow requested, on behalf of the respondent, the Upper Tribunal's consent to her withdrawal of her decision to remove the first-named appellant dated 10 September 2014. I explain the circumstances and deal with this issue at paras 10-14 below.
2. There is also a jurisdiction issue in this case, which I explain at paras 4-9 below. For the reasons given at paras 4-9 below, I have concluded that Judge of the First-tier Tribunal Birk who, following a hearing on 15 January 2015 dismissed the appeals of the appellants on human rights grounds (Article 8), did not have jurisdiction to hear the appeals. This means that her decision cannot stand and should not be used as a starting point in line with the guidance in Devaseelan (Second appeals - ECHR - Extra-Territorial Effect) Sri Lanka * [2002] UKIAT 00702 in the event that the First-tier Tribunal ("FtT") hears further appeals by the appellants in which such guidance would otherwise have been applied.
3. As matters stood as at 25 October 2016, the second and third appellants had not lodged Notices of appeal with the FtT against decisions made by the Secretary of State dated 8 March 2016 by which she informed them of her intention to remove them as family members of the first appellant. If they were to lodge such appeals now, their appeals would be out of time. At paras 10-14 below, I explain the proceedings before the Upper Tribunal on 5 December 2015, 4 March 2016 and 25 October 2016. At paras 16-17 below, I explain why it is my view that any delay on the part of the second and third appellants in lodging the appeals as at 25 October 2016, the date of this hearing before me, should not be held against them, although of course I stress that the issue of whether time should be extended is a matter entirely for the FtT when it comes to consider any such applications.
The jurisdiction point
4. The appellants are nationals of Sri Lanka born, respectively, on 28 February 1972, 13 November 1979 and 2 December 2003. The first appellant is the husband of the second appellant and the father of the third. The third appellant is the daughter of the first and second appellants.
5. The decisions that were the subject of the decision of Judge Birk were made on 10 September 2014 and are as follows:
i. In respect of the first appellant, a decision to remove him (form IS.151B) which stated that he had a right of appeal. This did not state that his right of appeal was only exercisable after he had left the United Kingdom. It followed that, according to his form IS.151B, he had an in-country right of appeal. However, this was plainly incorrect because para 50 of the "reasons for refusal letter" ("RFRL") which considered the Article 8 claims of all three appellants, stated that the human rights claims were certified as clearly unfounded under s.94(2) of the Nationality, Immigration and Asylum Act 2002 (the "2002 Act"). Para 51 of the RFRL stated (correctly) that an appeal may not be brought whilst in the United Kingdom.
ii. In respect of the second appellant, a decision to remove her (form IS.151A Part 2) which stated that she was entitled to appeal the decision after she had left the United Kingdom.
iii. In respect of the third appellant, a decision to remove her (form IS.151A Part 2) which stated that she was entitled to appeal the decision after she had left the United Kingdom.
6. Given that the respondent had issued a clearly unfounded certificate in the RFRL, there was no in-country right of appeal. I am therefore satisfied that the decision to remove addressed to the first appellant (i.e. the document mentioned at para 5.i above) was invalid because the notice as to the right of appeal failed to inform him that his right of appeal was exercisable after he had left the United Kingdom. The notices in respect of the second and third appellants correctly informed them that they could exercise their rights of appeal after they had left the United Kingdom.
7. This was the position as at the date that the decision of the judge was promulgated, on 29 January 2015. Unfortunately, the judge's attention was not drawn to the jurisdiction issue.
8. Given that the respondent had issued the clearly unfounded certificate, none of the appellants had an in-country right of appeal. The judge therefore did not have jurisdiction to entertain the appeals.
9. For the above reasons, I declare that the judge did not have jurisdiction to entertain the appeals and that her decision should not be used as a starting point pursuant to Devaseelan in the event of any appeals being brought in which Article 8 is relied upon by any of the appellants. I am obliged to take the jurisdiction issue notwithstanding that it was only considered at the hearing on 25 October 2016 (Virk v SSHD [2013] EWCA Civ 652).
The withdrawal of the respondent's decisions
10. In error, the jurisdiction issue was not considered at the hearings on 2 December 2015 and 4 March 2016. Unfortunately, it was not apparent to me then that there was a jurisdiction issue. At the time, I took the view (with which the parties did not disagree) that it was appropriate to ascertain whether the respondent had intended to issue the clearly unfounded certificate at para 50 of the RFRL, with a view to avoiding the necessity for the parties to commence proceedings again before the FtT. It was my view then (with which the parties did not disagree) that, if the respondent did not intend to issue the clearly unfounded certificate, any procedural irregularity arising by virtue of the appellants being served decisions that incorrrectly informed them of their rights of appeal could be waived, pursuant to Ravichandran v SSHD, SSHD v Jeyeanthan [1999] EWCA Civ 3010, such that the decision of Judge Birk was properly before the Upper Tribunal on appeal.
11. This led to my issuing the Directions at the hearing on 2 December 2015 (confirmed in writing on 7 December 2015) and Directions dated 4 March 2016. The following then took place:
i. In her email dated 3 December 2015, the respondent stated that the certified decisions for the second and third appellants were served erroneously and that she would proceed to serve the correct immigration decisions on them.
ii. Under cover of a letter dated 15 December 2015, the respondent served an amended "Reasons for refusal letter" dated 15 December 2015 addressed to the first appellant (the "amended RFRL") from which paras 50-51 of the RFRL had been deleted.
iii. In respect of the second appellant, the respondent served a "Notice of immigration decision", "Notice of intention to remove a family member" dated 8 March 2016 which informed her that she was liable to administrative removal as the spouse of the first appellant who was being administratively removed.
iv. In respect of the third appellant, the respondent served a "Notice of immigration decision", "Notice of intention to remove a family member" dated 8 March 2016 which informed her that she was liable to administrative removal as the daughter of the first appellant who was being administratively removed.
12. At the hearing on 25 October 2016, I raised the jurisdiction issue with the parties. It seemed to me then that the application of s.94 of the 2002 Act did not turn upon whether the Secretary of State intended to certify a claim as clearly unfounded but whether she did certify it as a matter of existing fact. As at the date of the decision of Judge Birk, the respondent had issued a clearly unfounded certificate, as a consequence of which there was no in-country right of appeal whether or not that had been intended by the respondent. The issue that arose was an issue of jurisdiction, not one of procedural irregularity. Mr Tarlow and Ms Pinder discussed matters and agreed.
13. Mr Tarlow took instructions as to whether the respondent would withdraw the decision to remove dated 10 September 2014 addressed to the first appellant (i.e. the document mentioned at para 5.i. above) because it incorrectly stated the right of appeal and issue a new decision.
14. Having done so, Mr Tarlow informed me that the Secretary of State requested the Upper Tribunal's consent to withdraw the decision to remove addressed to the first appellant (i.e. the document mentioned at para 5.i. above). Since it is plain that the notification of the right of appeal is incorrect, the Upper Tribunal consents to the withdrawal of this decision, if such consent is required.
15. Going forward and in order to ensure that no further jurisdiction or procedural issues arise, the respondent may wish to consider (although this is a matter entirely for her) serving or re-serving the documents mentioned at para 11.ii-iv above, together with any immigration decision that she issues in relation to the first appellant, at one and the same time.
Timeliness of notices of appeal
16. In the event that the respondent decides not to re-serve the decisions mentioned at para 11.iii-iv above and on the assumption that these decisions carry rights of appeal, it will be evident that the time limit within which notices of appeal should have been lodged with the FtT against these decisions will have started to run from 8 March 2016. As at the hearing before the Upper Tribunal on 25 October 2016, the second and third appellants had not lodged their notices of appeal. Accordingly, any Notices of appeal that they lodge now would be out of time.
17. Although this is entirely a matter for the judge of the FtT who considers any application by the second and third appellants for time to be extended, it is my view that they have not been at fault for failing, to date (i.e. 25 October 2016), to lodge their appeals against the decisions of 8 March 2016. It is plain from para 2 of my Directions dated 4 March 2016 that they and Counsel on their behalf were under the impression that the errors in the documents served on 10 September 2014 amounted to procedural irregularities which could be waived before the Upper Tribunal, as I was, and that this would mean that they would have appeals before the Upper Tribunal which they could pursue and which they had instructed Ms Pinder to pursue.

Signed:

Upper Tribunal Judge Gill Date: 1 November 2016