Abiyat and Others (Rights of appeal) Iran
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton |
| Judgment Date | 20 July 2011 |
| Neutral Citation | [2011] UKUT 314 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 20 July 2011 |
[2011] UKUT 314 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr C M G Ockelton, VICE PRESIDENT
For the Appellant: Mr A Mackenzie, instructed by TRP Solicitors
For the Respondent: Mr P Deller (22 June 2010); Mr C Avery (22 June 2011), Senior Home Office Presenting Officers
Abiyat and others (rights of appeal) Iran
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1. There is a right of appeal to the First-tier Tribunal under s.83 of the Nationality, Immigration and Asylum Act 2002 against a refusal of asylum triggered by a subsequent grant of more than one year's leave to remain, even if there has been a previous unsuccessful asylum appeal.
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2. There is a right of appeal to the Upper Tribunal against a decision of the First-tier Tribunal declining jurisdiction, when that decision has been made after full consideration and is embodied in a determination.
There are four appellants, linked only by the identity of the questions their cases raise. Those questions are: (1) Do they have a statutory right of appeal against the respondent's most recent decisions against them? (2) Do they have a right of appeal to the Upper Tribunal against the decision of the First-tier Tribunal that they have no statutory right of appeal against the respondent's decisions?
There were originally five appellants. The fifth, Sipho Khumalo, has withdrawn any appeal extant under file no AA/02555/2010. Notice acknowledging the withdrawal was sent out on 28 April 2011.
These matters were listed for hearing before the Upper Tribunal consisting of myself and Senior Immigration Judge Ward on 22 June 2010. We had considerable difficulty in reaching agreement on the answers to the questions posed. After considerable discussion we had agreed on the answer to the first question, with one reservation that I shall deal with in due course. We failed to reach agreement on the answer to the second question. SIJ Ward's illness and tragic early death have deprived me, and indeed the parties, of the further benefits of her wisdom. At a further hearing on 22 June 2011 the parties consented to my now determining these appeals alone.
I do not need to set out the facts in any great detail; I take the following gratefully from the decision of the First-tier Tribunal. The first appellant is a national of Iran, born on 22 July 1968. The second appellant is a national of Iran, born on 8 January 1971. The third appellant is a national of Sudan, born on 1 October 1969. The fourth appellant is a national of the Democratic Republic of Congo, born on 5 December 1982. Each of them came to the United Kingdom in 2002, 2003 or 2004 and claimed asylum; each of them was refused. Each of them appealed unsuccessfully. Following the expiry of their appeal rights, each of them made further submissions to the Secretary of State, some on more than one occasion. There was no response to those submissions. However, between November 2009 and January 2010 each of the appellants received a letter from the respondent. The material parts of each of the letters is as follows:
“Your case has been reviewed. Having fully considered the information you have provided, because of the individual circumstances of your case, it has been decided to grant you indefinite leave to remain in the United Kingdom. This leave has been granted exceptionally, outside the Immigration Rules. This is due to your strength of connections in the United Kingdom and length of residence in the United Kingdom.
This means that you are free to stay in this country permanently
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On reviewing your case it is noted that you have an outstanding Fresh Asylum Claim (post ARE [appeal rights exhausted]). Unless you contact us within the next 14 calendar days we will assume you wish to withdraw the outstanding claim.”
None of the appellants wished or wish to withdraw their outstanding asylum claims. They each claim entitlement to remain in the United Kingdom not exceptionally outside the Immigration Rules, but as refugees.
Each of the appellants gave notice of appeal to the First-tier Tribunal. A hearing was arranged before Senior Immigration Judge Renton and Immigration Judge C Lloyd on 22 March 2010. Having heard submissions from Mr Mackenzie, who has represented the appellants throughout, and from Mr C Hobb on behalf of the Respondent, they issued a document headed “Determination and Reasons” and concluding as follows:
“DECISION
12. Our decision is that the purported appeals are dismissed in that we find that there are no valid appeals before the Tribunal. The Tribunal will take no further action in respect of them.”
It is against that determination or decision that the appellants now seek to appeal. They were granted permission by Senior Immigration Judge Nichols on 23 April 2010.
In para 1, I set out the questions raised by these cases, in the order in which they arose; but I need to answer question (2) first, because if the answer is in the negative, there will be no scope for my providing an answer to question (1). Expressed rather more fully, the issue raised by question (2) is whether there is a right of appeal to the Upper Tribunal against a decision of the First-tier Tribunal, reached after a hearing and expressed in the form of a determination, that the Tribunal has no jurisdiction to entertain a purported appeal.
The relevant statutory revisions are as follows:
Section 11(1)-(3) of the Tribunals, Courts and Enforcement Act 2007 provides for a right of appeal, to be exercised only with permission, on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision. s.11(5) gives the meaning of the phrase “excluded decision”. The first five paragraphs of that sub-section list specific types of decision: none of them are relevant in these proceedings. Para (f) is as follows:
“(f) any decision of the First-tier Tribunal that is of a description specified in an order made by the Lord Chancellor”
Sub-sections (6) and (7) of s.11 set out restrictions on the power to make Orders under s.11(5)(f). A description may be specified in such an order only if either there is already a right of appeal at least as large as that provided by s.11(1)-(3) or if there was no right of appeal before the relevant appellant structure was transferred into the Tribunal system created by the 2007 Act.
The latter provision is of some interest in considering issues such as that before me now, because it shows that the provisions relating to appeals from decisions from the Asylum and Immigration Tribunal (whose functions were transferred on 15 February 2010) are of relevance in construing any order made under s.11(5)(f). For example, a description specified in such an order is likely to have to be construed in such a way as not to include decisions which, prior to 15 February 2010, carried a right of appeal.
There is an order made under s.11(5)(f): it is the Appeals (Excluded Decisions) Order 2009 (SI 2009/275) (as amended). Article 3 of that Order provides, in part, as follows:
“3. For the purposes of s.11(1) and 13(1) of the Tribunals, Courts and Enforcement Act 2007 [which has provisions relating to appeals to the Court of Appeal], the following decisions of the First-tier Tribunal or the Upper Tribunal are excluded decisions –
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(m) any procedural, ancillary or preliminary decision made in relation to an appeal against a decision under section 40A of the British Nationality Act 1981, section 82, 83 or 83A of the Nationality, Immigration and Asylum Act 2002, or regulation 26 of the Immigration (European Economic Area) Regulations 2006.”
If the appellants have the right of appeal, it is under s.83 of the 2002 Act.
The First-tier Tribunal has a procedure for dealing with cases where a Notice of Appeal is submitted by a person who has no right of appeal. That procedure is in the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230), which as amended continue to apply to proceedings before the First-tier Tribunal. Rule 2 contains definitions, of which the following is relevant:
“‘Relevant decision’ means a decision against which there is an exercisable right of appeal to the Tribunal.”
It is convenient also to set out the following definition here, also in rule 2.
“‘Determination’, in relation to an appeal, means a decision by the Tribunal in writing to allow or dismiss the appeal, and does not include a procedural, ancillary or preliminary decision”
Rule 9 is headed “Where the Tribunal may not accept a notice of appeal” and is as follows:
“(1) Where a person has given a notice of appeal to the Tribunal and the circumstances in para (1A) apply, the Tribunal may not accept the notice of appeal.
(1A) The circumstances referred to in paragraph (1) are that –
(a) there is no relevant decision; or
(b) the notice of appeal concerns the refusal of an application for entry clearance which was not made for a purpose falling within section 88A (1)(a) or (b) of the 2002 Act, and the notice of appeal does not rely on either of the grounds specified in section 88A(3)(a) of the 2002 Act.
(2) Where the Tribunal does not accept a notice of appeal, it must -
(a) notify the person giving the notice of appeal and the respondent; and
(b) take no further action.”
The Senior President's Practice Statements for the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal have relevant provisions. The wording was adopted in the light of the decision of the...
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