In three linked appeals, the Court of Appeal had to consider the question of whether, if an immigration decision has only an out-of-country right of appeal but the point is not taken before the First-Tier Tribunal, the issue of jurisdiction can still be raised thereafter i.e. before the Upper Tribunal.
Although Ms Pengeyo's case settled by consent the day before the hearing in the Court of Appeal, her arguments were adopted by the remaining two appellants.
The background facts were rather disturbing. Both Ms Pengeyo and Mr Anwar had leave to remain as students at the London School of E-Commerce which at the time was on the register of training and education providers. The college was removed from the register in May 2008 because it had been found to be issuing bogus qualifications. Ms Pengeyo asked the Home Office for advice and was told to find a new college, which she did. Mr Anwar had already left in November 2007 to join another college.
It therefore came as a shock to both appellants when in November 2008 they were each notified of a decision under section 10 of the Immigration and Asylum Act 1999 to remove them on the ground they had obtained leave to remain by deception. Not only were these decisions made without giving them an opportunity to rebut the allegation, but the right of appeal under section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002, is only exercisable from abroad.
However, the appellants submitted their notices of appeal whilst still in the United Kingdom, and attended hearings at the then Asylum and Immigration Tribunal. The respective Immigration Judges found that neither appellant had used deception and gave determinations allowing their appeals.
Rather than simply accept the Immigration Judges' conclusions, the Home Office applied for reconsideration on the basis that the Immigration Judges had had no jurisdiction. Senior Immigration Judges subsequently accepted that argument and overturned the determinations.
The Court of Appeal's judgment
Giving the judgment of the Court, Sedley LJ held (paras 19-23) that the Immigration Judges did have jurisdiction to hear the appeals, but that once the point of jurisdiction was raised it operated in bar of the proceedings. Had the point not been taken the Immigration Judge would have been bound to proceed with the appeal. The jurisdiction point was one that could but need not be taken.
Referring to the separate judicial review proceedings brought by Ms Pengeyo in case her appeal to the Court of Appeal had failed, Sedley LJ stated (para 24) that permission had rightly been granted to challenge the decision of the Home Office to make a deception decision enabling it to stifle any appeal, as opposed to a variation of leave decision which carried an in-country right of appeal. He also considered that permission would have been properly granted to argue that the election of the Home Office to take the out-of-country point in order to stifle an appeal was a "serious" abuse of power:
"Once it is established that the point is good only when taken, to take it in order to prevent the exposure of a shameful decision – the effective criminalising and enforced removal of an innocent person without either worthwhile evidence or the opportunity to answer – is without doubt justiciable by way of judicial review."
Sedley LJ then went on (para 25) to query whether the original Home Office decisions, taken in defiance of basic standards of fairness and morality, were nullities. In a stinging rebuke of the Home Office, he said:
"Although we have not been called on to determine the question on the instant appeals, it is right to flag up a concern which all the members of the court share that, on the evidence before us, the powers of one of the great offices of state appear to have been so misused as to rob the successive administrative decisions of legal authority. We wish this to be brought to the Home Secretary's attention."
In the case of the third appellant Mr Adjo, Sedley LJ held (paras 27-32) that as his last application to the Home Office had not been accepted as a fresh claim, there was no "immigration decision" giving him any right of appeal under section 82(2) of the 2002 Act.
Though the appeals were dismissed, the Court clearly intended the Secretary of State to act on its trenchantly expressed concerns.
Implications for practitioners
(1) It is hoped that Home Office decisions withdrawing leave to remain on the ground of deception will now (a) only be made after giving the individual an opportunity to rebut the allegation with representations, and (b) be made via a route e.g. Rule 323 of the Immigration Rules, which carries an in-country right of appeal under section 82(2) of the 2002 Act.
(2) If nonetheless a decision is made under section 10 of the 1999 Act, the representative should lodge a notice of appeal with the First-Tier Tribunal, as it does have jurisdiction unless and until the Home Office object (Anwar and Others, para 19).
(3) Even if the Home Office do object, their objection can be challenged via judicial review proceedings as an abuse of power, as indeed can their decision to use section 10 in the first place (Anwar and Others, para 24). A decision by the First-Tier Tribunal to reject a notice of appeal because it has no jurisdiction would also be judicially reviewable for very similar reasons. A hearing at which the Home Office Presenting Officer takes the point of jurisdiction may have to be adjourned to allow an application for judicial review to be made. In all such applications expedition should be requested.
(4) A way of forestalling the problems associated with appealing a section 10 decision in-country would be to raise any arguable asylum, human rights or EEA issues in the notice of appeal – and preferably also put them in a separate set of representations to the Home Office – this should have the effect of converting an out-of-country right of appeal to in-country (see section 92(4) of the 2002 Act and Anwar and Others, para 16).
The Appellant Ms Pengeyo was represented by Benjamin Hawkin.
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