Lamichhane v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton,Lord Justice Lewison,Lord Justice Maurice Kay |
| Judgment Date | 07 March 2012 |
| Neutral Citation | [2012] EWCA Civ 260 |
| Date | 07 March 2012 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2011/0881 |
[2012] EWCA Civ 260
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
Lord Justice Stanley Burnton
and
Lord Justice Lewison
Case No: C5/2011/0881
Zane Malik and Shahadoth Karim (instructed by Malik Law Chambers) for the Appellant
Jonathan Swift QC and Joanne Clement (instructed by the Treasury Solicitors) for the Respondent
Hearing dates: 14 th and 15 th February 2012
Introduction
This appeal raises a difficult question as to the jurisdiction of the First Tier Tribunal (Immigration and Asylum Chamber) in relation to matters raised by an appellant in his appeal from an adverse immigration decision of the Secretary of State which he had not previously raised, in a case in which no "one-stop" notice under section 120 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) has been served by the Secretary of State. In AS (Afghanistan) v Secretary of State for the Home Department [2011] 1 WLR 385 the Court of Appeal stated that the tribunal has no jurisdiction to consider the new matters in absence of a section 120 notice. However, the contrary view is expressed by the authors of MacDonald's Immigration Law and Practice (8 th edition) at paragraph 19.22, who state that what was said by the Court in AS (Afghanistan) was obiter.
The facts
This is the appeal of Rabindra Jung Lamichhane against the determination of Senior Immigration Judge McKee sitting in the Upper Tribunal (Immigration and Asylum Chamber) dismissing his appeal against the determination of Immigration Judge Talbot in the First Tier Tribunal which in turn dismissed his appeal against the decision of the Secretary of State refusing his application for indefinite leave to remain in the United Kingdom on the ground of his long residence.
The appellant had originally entered this country in 1999, and was given leave to enter as a student, valid until September 2000. He had remained in this country ever since, with periods of extended leave. In October 2009 he applied for indefinite leave to remain on the ground that he had at least 10 years' continuous lawful residence in this country, which would satisfy the requirement in paragraph 276B(i)(a) of the Immigration Rules. By letter dated 3 February 2010 the Secretary of State refused his application, on the ground that he had not in fact been lawfully resident here for 10 years. The Secretary of State's letter did not include a notice under section 120 of the 2002 Act, and no such notice was ever served separately.
The appellant appealed to the First Tier Tribunal. He filed his notice of appeal in the appropriate form IAFT-1. Section 5 of the form is headed "Statement of additional grounds" and includes the following instruction:
"If your notice of decision requires you to make a Statement of additional grounds, you should make the statement in this box. This section refers to any other reasons why you think:
• You should be allowed to stay in the United Kingdom, including any reasons relating to the European Convention on Human Rights
• You should not be removed or required to leave.
….."
It is common ground that although a section 120 notice need not be included in a notice of decision, and may be served subsequently, the requirement referred to in the form is a section 120 notice. Although none had been served, the appellant's solicitors set out in section 5 of his form the following statement of additional grounds:
"Based on [section 120] and the case of AS (Afghanistan) [2009] EWCA Civ 1079, the AIT (sic) has jurisdiction to consider any/all matters raised by an Appellant in his s.120 statement including the request for him to be allowed to stay in the Country in another capacity under the Immigration Rules.
In the event the Secretary of State or the Immigration Judge is not satisfied he should be allowed to remain in the UK on the basis of his length of residence in the UK, the Appellant makes a formal request to the Secretary of State to remain in the UK as a student under Tier 4 of the Points Based System."
The First Tier Tribunal rejected the appellant's contention that he satisfied the long residence requirements and his contention that he had a good Article 8 claim. Although there had been no section 120 notice, the Immigration Judge considered the judgments of this Court in AS (Afghanistan) and held that the Tribunal had both the power and the duty to consider his claim for leave to remain as a Tier 4 student. He remitted this claim for consideration by the Secretary of State.
The appellant was given permission to appeal to the Upper Tribunal on one ground only, namely that the First Tier Tribunal had no power to remit the Tier 4 student claim to the Secretary of State, but should have decided the claim itself, although it had never been considered by the Secretary of State.
At the hearing before Senior Immigration Judge McKee, the Secretary of State did not contend that the Tribunal had no jurisdiction to consider the Tier 4 student claim. It seems to have been common ground that it was not open to the Immigration Judge to dispose of the appeal before him by way of remission to the Secretary of State, but should he have decided the claim. He not having done so, it was for the Upper Tribunal to do so. The Senior Immigration Judge indicated during the course of the hearing that he was satisfied that the appellant met the requirements for leave as a Tier 4 student, and that he would allow the appeal.
However, after the hearing on reflection the Senior Immigration Judge decided that the Tribunal did not have jurisdiction to consider that claim, since there had been no section 120 notice and therefore the statement making that claim was not a "statement under section 120". He said:
"13. Section 120 of the 2002 Act leaves it up to the Secretary of State whether or not she wishes a person who has received a negative immigration decision to make a statement of Additional Grounds. If an appellant has not been required to do so, it is not open to him to put before the Tribunal for determination matters which are not the subject of the immigration decision under appeal (save, no doubt, for any asylum or human rights claim). Any statement raising such matters is simply not 'a statement under section 120' for the purposes of section 85(2) and (3) of the 2002 Act, regardless of whether it calls itself a 'Statement of Additional Grounds'.
14. The Tribunal, to put it in a nutshell, has no jurisdiction to consider under section 85(2) of the 2002 Act a matter purportedly raised in a statement made under section 120, if that statement was not in fact made under section 120. A statement will only be made under section 120 if the Secretary of State in a written notice has required the appellant to make it. The appellant cannot, by calling a statement 'a statement of additional grounds', compel the Tribunal to consider matters raised in that statement, if there has been no 'one-stop warning' or anything else constituting a requirement by the Secretary of State to make such a statement.
15. In the instant case, the First-tier judge was mistaken in thinking that she had jurisdiction to entertain a Tier 4 application, and I too have no such jurisdiction."
The Senior Immigration Judge therefore dismissed the appeal.
The appellant appealed to this Court, contending that, notwithstanding the fact that there had been no section 120 notice, the Senior Immigration Judge was required to consider his Tier 4 student claim and he should have decided it in his favour.
Before the date for the hearing of the appeal, the Secretary of State accepted that the appellant was entitled to leave to remain as a Tier 4 student. This rendered the outcome of the appeal academic so far as the appellant is concerned. However, because the issues raised are of general importance, and the likelihood of other appellants relying on the statement in MacDonald to which I have referred, the accuracy of which is disputed by the Secretary of State, the Court decided to hear and to decide the issue as to the jurisdiction of the Tribunal in a case such as the present, i.e., where the Secretary of State does not serve a section 120 notice, but new grounds that have not been considered by her are put forward on appeal to the Tribunal from her decision.
The statutory framework
This appeal is primarily concerned with Part 5 of the 2002 Act, headed "Immigration and Asylum Appeals". The starting point is section 82, which confers the right of appeal to the Tribunal and defines "immigration decision" for the purposes of that Part:
" 82 Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.
(2) In this Part "immigration decision" means—
(a) refusal of leave to enter the United Kingdom,
(b) refusal of entry clearance,
(c) refusal of a certificate of entitlement under section 10 of this Act,
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,
(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,
(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,
(g) a decision that a person is to be removed from the United...
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