Manorama Patel and Others v The Secretary of State for the Home Department

Hearing date : 22/10/2015

The applications before the court

Two alternative applications to the court are made by Manorama Patel, her husband and her daughter. Because the arguments are the same for all three applicants, I need only refer to Mrs Patel and I will call her "the Applicant" in this judgment. I will refer to the respondent to the applications as "the SSHD".

The first application is for this court to grant permission to appeal the refusal of the Vice-President of the Upper Tribunal (Immigration and Asylum Chamber), (respectively "Judge Ockelton" and "the UT") to grant permission to appeal a decision of the First Tier Tribunal ("the FTT"), when the applicant had applied to the UT for permission to appeal from the FTT out of time. That refusal of Judge Ockelton was made in a judgment given orally on 4 August 2014. The corrected transcript of the judgment was then "promulgated" on 19 August 2014.

The second, alternative, application, is made on the assumption that this court has no jurisdiction to consider the first application, because it is, in the statutory wording, an "excluded decision". In essence the Applicant asks that the court reconstitutes itself as a Divisional Court and that the Divisional Court grants permission to bring Judicial Review proceedings of the UT's refusal to grant permission to appeal to the Court of Appeal. In both cases, the applications are out of time.

Normally both these applications would have been dealt with by a single Lord Justice on the papers. However, this case has a long and complicated procedural history. When Beatson LJ considered the papers in June 2015 he directed that there should be an oral hearing before two Lords Justices. That hearing took place before us on 22 October 2015.

Procedural history to the hearing in front of Judge Ockelton on 4 August 2014

The applicant was born on 14 September 198On 18 November 2009 she was granted leave to enter to the UK as a Tier 4 (General) Student until 25 June 2011. Here husband was also granted leave to enter.

On 20 May 2011, the Applicant was granted leave to remain in the UK until 14 June 2014 as a Tier 4 Migrant in order to study at Cosmopolitan College. The Appellant had, in fact, ceased studying in April 2011 (ie before the date of her application), having become pregnant. Whether the Applicant actually intended to study at the College was in dispute below. Judge Ockelton concluded that the Applicant never intended to study at Cosmopolitan College because the applicant had found out that she was pregnant shortly before applying for leave to remain. In my view this issue is not relevant to the present applications.

On 8 August 2011, Cosmopolitan College's sponsor licence was revoked.

On 2 March 2012, the SSHD wrote to the Applicant informing her that as a result of the revocation of Cosmopolitan College's sponsor licence, the applicant ceased to meet the requirements of the Immigration Rules under which her leave to remain had been granted. The letter stated that the SSHD had decided, "in the exercise of her discretion" to restrict the duration of the Applicant's leave to remain as a Tier 4 migrant so as to expire, under her current conditions, on 1 May 2012. The letter, which was headed "Points Based System-Variation of Leave" stated that the leave to remain was curtailed under Paragraph 323A(a) of the then extant Immigration Rules. The letter also stated that the Applicant had no right to appeal that decision, because section 82 of the Nationality and Immigration Act 2002 ("the 2002 Act") did not provide a right of appeal where an applicant still had leave to remain in the UK so was entitled to stay here for the time-being.

This letter was not sent to the Applicant at her home address. It was sent to the address of consultants she had used to make the application for leave to remain. The Applicant has consistently stated that she never received the letter.

On 15 May 2012, that is two weeks after the Applicant's leave to remain had expired, Immigration Officers went to her home address and served on her a decision by the SSHD to remove the Applicant, on the ground that she was by then an "overstayer". This letter informed the Applicant that she had an "out of country" right of appeal against that decision, under section 82(1), section 82(2)(g) and section 92 of the 2002 Act. The Applicant told the Immigration Officers that she had not received the SSHD's notice of 2 March 2012 curtailing her leave to remain. That notice was, accordingly, served on her personally on 15 May 2012.

Despite the statement in the letter of 15 May 2012 that the Applicant had only an "out of country" right of appeal, she sought to make an "in-country" appeal to the FTT, challenging the SSHD's removal decision. That application was made on 17 May 2012. A hearing took place on 29 August 2012 and the FTT promulgated its decision on 12 September 2012. The FTT treated the appeal as one "against the decision of the Secretary of State to make a decision to remove [the Applicant, her husband and her daughter] under section 10 of the Immigration and Asylum Act 1999 following curtailment of their leave."

On behalf of the SSHD it was argued that the FTT had no jurisdiction to entertain the appeal, so the FTT had to consider that preliminary point. The FTT concluded that it had no jurisdiction to hear the appeal because an appeal against a decision to remove an "overstayer" was an "immigration decision" of a type describe in section 82(2)(g) of the 2002 Act which did not give rise to an "in-country" right of appeal under section 92 of the 2002 Act, but only an "out of country" right of appeal after the "overstayer" had left the UK: (see para 21 of the FTT's decision).

On 15 October 2012, that is outside the time allowed for lodging any appeal against the FTT's decision, the Applicant sought permission from the FTT to appeal to the UT. There were two proposed grounds of appeal:

"(a) The FTT erred in law in assuming that the Appellant's leave was validly curtailed on 2 March 2012 and that she had no in-country right of appeal against the immigration decision taken on 15 May 2012;

(b) The FTT erred in law in dismissing the appeal by following Nirula v FTT [2011] EWHC 3336 (Admin). This is because Nirula itself is wrongly decided and should not have been followed."

The application was considered by FTT Judge Grant on 23 October 2012. The heading of his order stated "permission to appeal is refused". He gave two reasons. First, the application was out of time and there were no special circumstances that merited an extension of time so that "the application is therefore not admitted". Secondly, even if the application had been in time, the Applicant had no "in country" right of appeal.

On 8 November 2012 the Applicant sought from the UT permission to appeal the FTT's decision. This application was out of time. The Notice of Appeal was prepared by Mr Imtiaz Ali, a solicitor and the SRA Approved Manager and partner of Malik Law Chambers Solicitors. The grounds set out above were again advanced. In Section D of the Notice of Appeal (which is headed "Reasons for any delay") the answer given to the question "did the First Tier Tribunal refuse to admit your application because it was late" was "No". That is factually incorrect, as is clear from Judge Grant's first reason for refusing permission. The second question: "Are you seeking to make this application outside the time limit that applies to you (see below)" was answered "Yes", which was factually correct, because the application to the UT was out of time.

On 21 December 2012 UT Judge Eshun refused permission to appeal on the papers. Her written reasons stated that the decision to curtail leave was not an immigration decision within the meaning of Section 82(2)(e) of the 2002 Act because that subparagraph referred to variation to a person's leave to enter or remain in the UK "…if when the variation takes the effect the person has no leave to enter or remain"; that was not so in the present case because the variation took place on 2 March 2012 at a time the Appellant still had leave to remain in the UK. Originally the applicant had had leave to remain to June 2014 and, by the variation, it had continued, albeit only until 1 May 2012. UT Judge Eshun made no reference in her reasons to the fact that both applications for permission to appeal to the UT (that to the FTT and that to the UT) had been made out of time. Judge Eshun did not state that she was extending time to make the application which she said that she was refusing.

The Applicant has stated that she received the UT's refusal decision on 2 January 2013. She then sought permission from the Administrative Court to apply for judicial review of Judge Eshun's refusal decision, but the application was not issued until 3 April 2013. Under CPR Part 54.7A(3) a claim form and supporting documents for an application for permission to apply for judicial review of a refusal by the Upper Tribunal of permission to appeal against a decision of the FTT (commonly called a " Cart...