JH (Zimbabwe) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Richards,Lord Justice Wall,Lord Justice Laws
Judgment Date19 February 2009
Neutral Citation[2009] EWCA Civ 78
CourtCourt of Appeal (Civil Division)
Docket NumberCase Nos: C5/2008/0113 and CO/2854/2008
Date19 February 2009
Between:
JH (Zimbabwe)
Appellant
and
Secretary of State for the Home Department
Respondent
and
And between
The Queen (on the application of JH (Zimbabwe))
Claimant
and
The Asylum and Immigration Tribunal
Defendant
and
Secretary of State for the Home Department
Interested Party

[2009] EWCA Civ 78

Before:

Lord Justice Laws

Lord Justice Wall and

Lord Justice Richards

Case Nos: C5/2008/0113 and CO/2854/2008

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL

Senior Immigration Judge Spencer

(IA/01658/2005)

Simon Cox (instructed by Sam & Co) for the Appellant/Claimant

Jason Beer (instructed by The Treasury Solicitor) for the Secretary of State

Hearing date : 5 February 2009

Lord Justice Richards

Lord Justice Richards:

JH, a citizen of Zimbabwe, entered the United Kingdom as a visitor in October 2004. Before the expiry of her leave in March 2005 she applied for leave to remain as the spouse of a person settled here. The difficulties with which the court is now concerned arise out of the fact that she used the prescribed form for an application for indefinite leave to remain, for which she plainly did not qualify, rather than the form for limited leave to remain which was better suited to her case. This was noticed by the Home Office, which sent her the correct form. She completed and returned the correct form and in due course the Secretary of State reached a decision refusing to grant limited leave. The notice of decision accepted that there was a right of appeal against the decision, including an appeal on human rights grounds. An appeal was lodged and was allowed by an immigration judge by reference to article 8 ECHR. The Secretary of State then applied for and obtained an order for reconsideration, and on the reconsideration the tribunal found a material error of law in the first immigration judge's decision and substituted a fresh decision dismissing JH's appeal. But that decision, in turn, was set aside on a consent order by the Court of Appeal, which remitted the case for reconsideration by a differently constituted tribunal.

1

The matter then came before Senior Immigration Judge Spencer (“the SIJ”) who for the first time in the proceedings, and of his own motion, took a jurisdictional point. He held that JH's application for indefinite leave to remain was invalid and that her second application, for limited leave to remain, could not be treated as a variation of the first application since only a valid application can be varied. The second application therefore stood alone. Since it was made after the time when JH's original leave to enter had expired, s.3C of the Immigration Act 1971 (“the 1971 Act”) did not operate in the circumstances to extend her original leave. This had the further consequence that JH had no right of appeal under s.82(1)(d) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) against the Secretary of State's decision refusing her leave to remain, and the tribunal had no jurisdiction to entertain her appeal. The SIJ stated that the tribunal was obliged by rule 9(2)(b) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (“the Procedure Rules”) to take no further action. His decision, expressed as a decision that JH had no right of appeal, was promulgated on 19 September 2007.

2

JH's challenge to the SIJ's decision comes before us in two different ways: first, as an appeal, for which purpose we are constituted as the Court of Appeal; and, secondly, as an application for permission to apply for judicial review, for which purpose we are constituted as a Divisional Court. The dual procedure was adopted because there is an issue as to the Court of Appeal's jurisdiction to entertain an appeal against a decision of this kind. I think it appropriate to decide at the outset whether we are exercising an appellate jurisdiction or a first instance supervisory jurisdiction. I therefore turn at once to consider that issue.

Jurisdiction

3

It is the Secretary of State who contends that there is no right of appeal to the Court of Appeal against the SIJ's decision. In order to consider that contention, it is helpful first to set out rule 9 of the Procedure Rules, to which the SIJ referred, and the provisions of the 2002 Act governing reconsiderations and further appeals to the Court of Appeal.

4

Rule 9 of the Procedure Rules provides:

“9.(1) Where (a) a person has given notice of appeal to the Tribunal; and (b) there is no relevant decision, the Tribunal shall not accept the notice of appeal.

(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.”

I note that rule 9 is in part 2 of the Procedure Rules, whereas the rules relating to reconsiderations are in part 3; and rule 9 is not one of the part 2 rules that are applied by rule 29 to proceedings for reconsideration.

5

The tribunal's power to reconsider one of its decisions and the right to bring a further appeal to the Court of Appeal following a reconsideration by the tribunal are governed respectively by ss.103A and 103B of the 2002 Act, which provide in material part:

“103A. Review of Tribunal's decision

(1) A party to an appeal under section 82 or 83 may apply to the appropriate court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on the appeal.

(2) The appropriate court may make an order under subsection (1) -

(a) only if it thinks that the Tribunal may have made an error of law, and

(b) only once in relation to an appeal.

(7) In this section a reference to the Tribunal's decision on an appeal does not include a reference to –

(a) a procedural, ancillary or preliminary decision, or

(b) a decision following remittal under section 103B ….

103B. Appeal from Tribunal following reconsideration

(1) Where an appeal to the Tribunal has been reconsidered, a party to the appeal may bring a further appeal on a point of law to the appropriate appellate court.

(2) In subsection (1) the reference to reconsideration is to reconsideration pursuant to -

(a) an order under section 103A(1), or

(b) remittal to the Tribunal under this section ….

(4) On an appeal under subsection (1) the appropriate appellate court may -

(c) remit the case to the Tribunal ….”

6

For the Secretary of State, Mr Beer submits that the SIJ's decision was not a decision taken after reconsideration of the appeal, so as to engage a right of appeal under s.103B(1), but was taken pursuant to rule 9 of the Procedure Rules and was a procedural or preliminary decision within the meaning of s.103A(7). Although the case had been remitted by the Court of Appeal for a fresh reconsideration, what happened thereafter was that the SIJ expressly declined to reconsider the case, on the ground that the tribunal lacked jurisdiction to accept the appeal in the first place. Mr Beer seeks to reinforce his case by policy arguments, contending that Parliament must have intended that tribunal decisions on procedural or preliminary points would be final and would not be subject to appeal (though judicial review might still lie).

7

I have no hesitation in rejecting those submissions. In this case the tribunal had moved far beyond the rule 9 stage. The notice of appeal had been accepted by the tribunal and the appeal had already been determined and reconsidered once. The case had then gone to the Court of Appeal and had been remitted for a fresh reconsideration. That was how it came before the SIJ. I think it plain that his decision was reached on a reconsideration pursuant to the remittal and that the conditions for a further appeal to the Court of Appeal under s.103B(1) and (2) were therefore satisfied. Although the SIJ referred to rule 9, it makes no sense to treat his decision as having been made under rule 9 or as a procedural or preliminary decision of the kind referred to in s.103A(7). It happens from time to time that the tribunal, on the determination of an appeal or on a reconsideration, decides that the tribunal lacks jurisdiction to entertain the appeal. I see no good reason of principle or policy why such a decision should be excluded from review or appeal under s.103A or s.103B. In the unusual circumstances of the present case, where a decision on jurisdiction was made for the first time on a second reconsideration, it would in my view be extraordinary if no right of appeal existed. I am satisfied that a right of appeal does exist.

8

I therefore conclude that the case and should be dealt with as an appeal under s.103B. It follows, as is common ground, that the application for permission to apply for judicial review should be refused on the basis that the appellate procedure provides an appropriate alternative remedy.

Introduction to the substantive issues

9

I can now proceed to the substantive issues in the case. First, since the whole debate takes place against the background of s.3C of the 1971 Act, to which I have already made brief reference, I should set out the material provisions of that section:

“3C. Continuation of leave pending variation decision

(1) This section applies if-

(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,

(b) the application for variation is made before the leave expires, and

(c) the leave expires without the application for variation having been decided.

(2) The leave is extended by virtue of this section during any period when -

(a) the application for variation is...

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