LB (Jamaica) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MOSES,MRS JUSTICE BARON,LORD JUSTICE MAURICE KAY |
| Judgment Date | 05 October 2011 |
| Neutral Citation | [2011] EWCA Civ 1420 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 October 2011 |
| Docket Number | Case No: C5/2010/2512 |
[2011] EWCA Civ 1420
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
[IA/04934/2010]
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
Lord Justice Moses
Mrs Justice Baron
Case No: C5/2010/2512
Mr Zane Malik, instructed by Malik Law Chambers Solicitors, appeared on behalf of the Appellant.
Miss Susan Chan, instructed by Treasury Solicitors, appeared on behalf of the Respondent.
This is an appeal on behalf of Mr Brown which raises a question of the jurisdiction of this court. It is only necessary to deal with such of the factual background as is necessary to explain how the issue arises.
The appellant originally arrived as a Jamaican national in the United Kingdom back in July 2000 and for various reasons remained here, he contended lawfully, for 10 years. The length of his lawful residence here, and the key question whether he had been lawfully resident for 10 years, was the subject matter of dispute with the Secretary of State for the Home Department and led to a refusal of an extension of student leave and a failure of two appeals, one to the First-tier Tribunal, and secondly to the Upper Tribunal. A further appeal to this court raised the question whether leave, pursuant to section 3C of the Immigration Act 1971, counted as lawful residence for the purposes of calculating the length of this applicant's lawful residence within the United Kingdom.
Once permission to argue these points had been given by Sedley LJ, the Secretary of State for the Home Department reviewed the matter and came to the conclusion that she should grant the appellant indefinite leave to remain on the basis of 10 years' lawful residence. Accordingly, on 7 April 2011, she wrote confirming grant of leave with effect from 5 April 2011, but – and here comes the sting in the tail – informed the applicant that by virtue of section 104 of the Nationality Immigration Asylum Act 2002 the appellant's appeal was to be regarded as abandoned from the moment that leave was granted. Little did she know that representing this appellant was not one who would be prepared to lie down on the basis of the success of his particular client, but one who had the interests of those who practised in the field and others like him very much at heart, namely Mr Zane Malik. He contends that this court does have jurisdiction and, notwithstanding the grant of leave, the appeal is not to be regarded as abandoned. If he is correct, he then wishes this court to pronounce upon the issue which led permission to be given to this court and which he contends is of significant and particular importance to those in a similar position to Mr Brown, the appellant. None of that is of concern to this court unless the court has jurisdiction. This is not a case where it is appropriate to consider the propriety of deciding the arguments whether section 3C of the 1971 Act counts towards the lawfulness of residence on the assumption that this court has jurisdiction. No question of discretion as to whether to decide an academic appeal arises, absent jurisdiction.
In order to determine the point it is necessary to consider the statutory scheme. The right of appeal against an immigration decision as defined in section 82 of the Nationality Immigration and Asylum Act 2002 is conferred by section 82(1). The right of appeal is conferred on a person in respect of whom an immigration decision is made to the First-Tier Tribunal by reference to the definition section, section 81. The immigration decision in the instant case was a decision to refuse Mr Brown's leave to remain in the UK pursuant to section 82(2).
The question of whether the appeal was abandoned, as the Secretary of State contends, falls to be determined by analysis of section 104. Section 104, under the rubric of Pending Appeal, reads:
"(1) an appeal under section 82(1) is "pending" during the period beginning when it is instituted and ending when it is finally determined, withdrawn or abandoned…
(2) an appeal under section 82(1) is not finally determined for the purposes of subsection (1)(b) while—an application for permission as to appeal under section 11 or section 13 the Tribunal Courts and Enforcement Act 2007 could be made or is awaiting determination.
Permission to appeal under either of those sections has been granted and the appeal is awaiting determination, or an appeal has been remitted under section 12 or 14 of that Act and is awaiting determination."
It is relevant to observe that section 104(2) was substituted for its predecessor section 104(2) by the Transfer of Function of the Asylum and Immigration Tribunal Order 2010/21 (Schedule 1 paragraph 26(a) on 15 February 2010). The previous provisions of section 104(2) referred to the previous statutory regime for tribunals and referred to an appeal to the Court of Appeal by virtue of section 103C; an appeal under section 82(1) was under the previous statutory regime under the 2002 Act not finally determined whilst an appeal to the Court of Appeal under section 103C was awaiting the determination.
Section 104 continues by identifying a number of circumstances in which an appeal under section 82(1) would be deemed to be abandoned. Subsection (4) reads:
"An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant leaves the United Kingdom."
Subsection (4A) reads:
"An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom (subject to subsections (4B) and (4C)). (neither of which apply in the instant appeal)."
It is section 104(4A), so the Secretary of State submits, which deprives this court of jurisdiction.
This appeal, as to the question of jurisdiction, turns on the meaning of the words "an appeal under section 82(1)". Mr Zane Malik submits that an appeal under section 82(1) is not the same as an appeal to this court. Whilst an...
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Mahbub Alam (1) Fahad Anwar (2) and Another v Secretary of State for the Home Department
...when the decision was remade by a judge of the Upper Tribunal was supported by the decision of this Court in LB (Jamaica) v Secretary of State for the Home Department [2011] EWCA Civ 1420. The issue in that case was whether an appeal from the Upper Tribunal to the Court of Appeal was to be ......
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Upper Tribunal (Immigration and asylum chamber), 2020-08-27, PA/03850/2017
...under s 82", rather than under the appeals provisions of the Tribunals, Courts and Enforcement Act 2007: see LB (Jamaica) v SSHD [2011] EWCA Civ 1420). The provisions of s [85](4) are not needed to enable the Upper Tribunal, a superior court of record, to take relevant matters into account,......
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Upper Tribunal (Immigration and asylum chamber), 2012-03-09, [2012] UKUT 81 (IAC) (Shahzad (s.85A: commencement))
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Upper Tribunal (Immigration and asylum chamber), 2021-06-18, [2021] UKUT 176 (IAC) (Hydar (s. 120 response, s. 85 “new matter”, Birch))
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