Moses Asiweh v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin |
| Judgment Date | 23 January 2019 |
| Neutral Citation | [2019] EWCA Civ 13 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 January 2019 |
| Docket Number | Case No: C2/2016/2912 |
[2019] EWCA Civ 13
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM
CHAMBER
Upper Tribunal Judge Jordan
JR/3123/2016
Royal Courts of Justice
Strand, London, WC2A 2LL
THE SENIOR PRESIDENT OF TRIBUNALS
Lord Justice Irwin
Case No: C2/2016/2912
Mr. Michael Biggs (instructed by Mayfair Solicitors) for the Appellant
Mr. Eric Metcalfe (instructed by Government Legal Department) for the Respondent
Hearing date: 6 December 2018
Approved Judgment
The Senior President:
Introduction
This is an appeal against the decision of the Upper Tribunal (Immigration and Asylum Chamber) which refused permission to the appellant to apply for judicial review of the decision of the Secretary of State made on 23 December 2015 by which his application for leave to remain in the United Kingdom was refused. Permission to appeal to this court was granted on 8 February 2018 following an oral hearing.
Background
The appellant is a national of Nigeria who is now aged 42.
On 12 September 2008 the appellant arrived in the United Kingdom with entry clearance as a student valid until 31 December 2009. His leave as a student was subsequently extended until 30 January 2011. On 11 February 2011 he was granted further leave to remain as a Tier 1 (Post Study Work) Migrant until 11 February 2013. On 28 February 2012, the appellant's wife and two sons entered the United Kingdom as the appellant's dependents. They are also Nigerian citizens. On 9 April 2013 the appellant was granted further leave to remain as a Tier 2 (General) Migrant until 14 February 2016.
On a date prior to 20 May 2014, the Secretary of State revoked the licence of the appellant's Tier 2 sponsor, Kimberly College Limited. Although there is some confusion over when this occurred nothing turns on the date of revocation for the purposes of this appeal.
As a result of the revocation of the licence the Secretary of State curtailed the appellant's leave on 20 May 2014 to expire on 26 July 2014. The appellant did not receive the curtailment decision. On 25 June 2015 the Secretary of State successfully served the appellant with a new notice curtailing his leave to 29 August 2015.
On 28 August 2015 the appellant applied to vary his leave. The Secretary of State refused the appellant's application and certified it as clearly unfounded under section 94 of the Nationality Immigration and Asylum Act 2002.
On 21 March 2016 the appellant applied for permission to judicially review the Secretary of State's refusal. Permission was refused by Upper Tribunal Judge Jordan following an oral hearing.
Decision Appealed
Judge Jordan held that no arguable case had been advanced that was sufficient to demonstrate that the judicial review claim could succeed. The appellant asserted that the application to vary leave to remain should have been considered by the Secretary of State under his residual discretion. Judge Jordan held that the Secretary of State was under no duty to make a separate decision under such residual discretionary powers as may exist but even if there was such a duty, no sufficient grounds had been advanced as to why this case would succeed on the facts. At paragraph [4] of his reasons he concluded that:
“It is not enough to assert a bare failure if the applicant cannot also establish the exercise of discretion would have had some prospect, albeit remote, of succeeding in a way that provided the applicant with a benefit not available under exceptional circumstances.”
Judge Jordan found that the appellant had failed to put forward an arguable case for why he might have been granted leave had the Secretary of State exercised his residual discretion and therefore permission to apply for judicial review was refused.
The grounds of appeal assert that the appellant's claim for judicial review is properly arguable on one or more of the following bases:
i. The Secretary of State had a residual discretion to grant leave.
ii. The Secretary of State erred in failing to consider whether to exercise that discretion; and
iii. The Secretary of State misdirected himself as to the test for certification under section 94 of the Nationality, Immigration and Asylum Act 2002.
For the purposes of this appeal, it is not necessary to examine whether or not a claim could have been made under the Immigration Rules. The appellant accepts that the ‘gravamen of the appellant's application of 28 August 2015’ was limited to the question of the Secretary of State's residual discretion.
The questions raised in this appeal involve no new issues of principle and the appeal only involves the application of settled principles to the facts of the case.
Discussion
The first issue that arises is whether the Secretary of State was under an obligation to consider whether to exercise his discretion outside of the Immigration Rules to grant leave to remain.
Judge Jordan at paragraph [3] of his reasons found that she was not:
“…there is no duty to make a separate decision under such residual discretionary powers as may exist…”
The appellant submits the Secretary of State was under an obligation to consider whether to exercise his discretion in the circumstance that existed in this case, namely that the exercise of discretion was expressly requested by the applicant: R (Behary & Ullah) v SSHD [2016] EWCA Civ 702.
The Secretary of State submits the court in Behary did not consider the nature of the Secretary of State's obligation in circumstances where the essence of the applicant's request and all material supporting it was a human rights claim that is capable of being determined within the Immigration Rules. In such a case, the Secretary of State submits, the failure to consider the exercise of his residual discretion to grant leave outside the Rules discloses no material error of law.
I have come to the conclusion that the Upper Tribunal erred in the conclusion to which it came on this issue. That the Secretary of State has a discretion to grant leave to remain outside of Immigration Rules is not in issue. The only question as respects the issue in this case is whether he is obliged to consider exercising it when requested to do so. At paragraph [39] of Behary Burnett LJ held that:
“There is an obligation to consider such a grant when expressly asked to do so and, if but briefly, deal with any material relied upon by an applicant in support.”
That is binding on us and was binding on the Upper Tribunal. It is clear that when the Secretary of State is expressly asked to exercise his discretion to grant leave to remain outside of the Immigration Rules he is under a duty to do so. The appellant expressly asked the Secretary of State to exercise his discretion in his application to have his leave varied. It is clear from the Secretary of State's December 2015 decision letter that he did not consider exercising her discretion. That was an error.
The second issue is whether that error was immaterial in the sense that the Secretary of State would inevitably have reached the same conclusion had the error not been made.
It is common ground that this is the approach that the judicial review court should have adopted in this case in its consideration of whether there is a properly arguable claim. In R (Smith) v North East Derbyshire PCT [2006] EWCA Civ 1291 at [10], May LJ held that:
“Probability is not enough. The defendant would have to show that the...
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