Ms (Uganda) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lord Justice Lewison,Lord Justice Floyd |
| Judgment Date | 16 January 2014 |
| Neutral Citation | [2014] EWCA Civ 50 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 January 2014 |
| Docket Number | Case No: C5/2013/0774 |
[2014] EWCA Civ 50
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 Elias
Lord Justice Lewison
Lord Justice Floyd
Case No: C5/2013/0774
Mr Michael Biggs (instructed by Migrants Resource Centre) appeared on behalf of the Appellant
Mr Matthew Gullick (instructed by the Treasury Solicitor) Appeared on behalf of the Respondent
This appeal raises a short point on the proper interpretation of section 83 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). The relevant facts can shortly be stated. The appellant is a citizen of Uganda. On 27 September 2010 he was granted limited leave to remain in the UK as a student until 30 April 2012. Before that time had expired, he applied for a variation of his leave to remain on the grounds that he should be accepted as a refugee. The basis of that claim was that his brother was suspected of being involved in terrorist activities directed against the Ugandan Government, and he claimed that by reason of his relationship and the suspicion that he might be involved with his brother, he faced a real risk of persecution if he were to be returned. On 7 February 2012 the Secretary of State rejected the claim and refused to vary the limited leave to remain but he did not curtail it.
The appellant appealed to the First-tier Tribunal and Judge O'Keeffe dismissed the appeal after a detailed analysis of the facts and the relevant law. There was a further appeal to the Upper Tribunal before Upper Tribunal Judge Clive Lane. He did not engage with the merits of the appeal because he concluded that the FTT had no jurisdiction to hear the case in the first place and hence there was no lawful decision to appeal. He formally set aside the determination of the FTT.
The judge's analysis was as follows: in order to be able to appeal to the FTT, the relevant decision under appeal must be an immigration decision as defined by section 82(2) of the 2002 Act. The relevant paragraph under which the parties and the FTT appear to have assumed that the FTT had jurisdiction was paragraph (d). This provides that an immigration decision arises where the relevant decision is a:
"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."
Upper Tribunal Judge Clive Lane accepted the submission from the Secretary of State, raised for the first time on appeal, that the condition was not satisfied since the appellant did indeed have the right to remain notwithstanding the refusal to vary his limited leave.
The appellant's representative accepted that the terms of section 82(2)(d) were not satisfied, but he sought to persuade the judge that the FTT did in fact have the duty to hear the appeal on the grounds that the relevant decision fell within the scope of section 83 of the 2002 Act. This is as follows:
"Appeal: asylum claim
(1) This section applies where a person has made an asylum claim and —
(a) his claim has been rejected by the Secretary of State, but
(b) he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).
(2) The person may appeal to the Tribunal against the rejection of his asylum claim."
It is pertinent to note that at the date of refusal of asylum, the applicant still had the right to remain in the UK for a few months but not for a year. However, the limited leave to remain had been granted before the refusal and not with knowledge of it.
On these facts, the judge concluded that the conditions of section 83 were not satisfied. He summarised his reasons as follows:
"7. I reject Mr Waheed's submission. On a proper construction of Section 83, I find that the circumstances of this appellant are excluded. I say that for the following reasons. I hold that Section 83(1) sets out a sequence of events which must occur in a particular order before a right of appeal against the rejection of an asylum claim can arise. I say that because of the inclusion of the conjunctive 'and' at the end of the first line of section 83(1) and the conjunctive 'but' between Section 83(1)(a) and (b). The grant of leave must be made at the same time as or after the refusal of the claim for asylum and as a consequence of the applicant having claimed asylum; if that is not the case, then the use of those conjunctives is superfluous. The Section applies to applicants whose claims for asylum have been rejected by the Secretary of State, but who have been granted a limited period of leave to remain, rather than refugee status. That outcome may occur in a number of different circumstances but the most common is, perhaps, where an applicant who is under the age of 18 years seeks asylum and, although his asylum claim itself is rejected on its merits, the Secretary of State grants leave to remain until the applicant is aged 18 years old. The purpose of Section 83 is that such an applicant should not be deprived of the right to challenge the refusal of his asylum claim where that refusal is not accompanied by a decision to remove him.
8. The sequence of events anticipated by Section 83 has not occurred in the case of the present appellant. His asylum claim (and its rejection) postdate the grant of leave which was made to the appellant at a time when the Secretary of State had no idea that he would seek to claim asylum or wish to remain in the United Kingdom beyond the period of his student visa. I hold that Section 83 of the 2002 Act does not apply in the circumstances of this appellant. I further hold that there has been no immigration decision (as defined by Section 82) in this appeal such that the appellant had any right of appeal to the First-tier Tribunal. Consequently, the determination of the First-tier Tribunal is a nullity; the Tribunal had no jurisdiction to hear the appeal. The decision by the Secretary of State in the present appeal not to curtail the appellant's existing leave to remain has left him without a right of appeal but, should he not return voluntarily to Uganda and a decision is taken to remove him, he may, if he wishes, then appeal to the First-tier Tribunal on asylum grounds."
There are two elements to this conclusion: first, the sequence of events must be such that a grant of leave must be either contemporaneous with, or else be subsequent to, the refusal of the asylum claim; and second, it must be as a consequence of that claim.
The grounds of appeal
The appellant now appeals to this court by leave of Laws LJ. There are two grounds of appeal. The first is that the judge was wrong about section 83: properly analysed it did confer jurisdiction. The second is that in any event it was too late for the Secretary of State to take the jurisdictional point for the first time on appeal.
I can deal with the second issue very briefly. Mr Biggs, counsel for the appellant, submits that there is always a discretion whether to allow the jurisdiction point to be taken —a matter which the judge did not recognise —and there was an element of unfairness in the Secretary of State relying on the point for the first time on appeal. In my judgment, this argument is wrong in principle and is in any event now unsustainable as a result of a binding decision of this court, decided after Laws LJ had given leave, in Virk v Secretary of State for the Home Department [2013] EWCA Civ 652. In that case, an identical argument to that addressed here was rejected by Patten LJ in a judgment with which Leveson and Briggs LJJ agreed. That case too involved the FTT determining an appeal under section 82 when in fact it had no jurisdiction to do so. In that case, the jurisdictional point was taken by the appeal judge rather than the Secretary of State, and although Mr Biggs sought to assert that this was a material distinction, in my view nothing turns on it. Patten LJ concluded that the judge was entitled to take the point notwithstanding that it had not been raised below. After referring to the earlier Court of Appeal judgment in R (on the application of Nirula) v First-tier Tribunal (Asylum & Immigration Chamber) [2012] EWCA Civ 1436, in which the court had held that a First-tier Tribunal can take a jurisdictional point of its own motion, the judge continued (para 23):
"This decision is consistent with the fact that the FTT is a creation of statute whose jurisdiction in this case is limited by the terms of s.82 of the 2002 Act. The same goes for the UT. Statutory jurisdiction cannot be conferred by waiver or agreement; or by the failure of the parties or the tribunal to be alive to the point. Although, as Longmore LJ pointed out, decisions taken without jurisdiction may in due course become irreversible, that point has not been reached in this case. It was, in my judgment, open to either the FTT or the UT to take the point about jurisdiction notwithstanding the failure of the Secretary of State to raise it herself."
In my view that analysis is decisive of this ground of appeal. Of course there may be circumstances where it is too late to take a jurisdictional point on appeal, such as where it involves findings of fact not determined by the court of first instance, but that is not this case.
I turn to the first ground, namely that contrary to the construction adopted by the judge section 83 did indeed confer jurisdiction on the FTT to hear the appeal. This requires an analysis of the language of...
To continue reading
Request your trial
-
MS (Uganda) v Secretary of State for the Home Department
...[2016] UKSC 33 THE SUPREME COURT Trinity Term On appeal from: [2014] EWCA Civ 50 Lord Neuberger, President Lady Hale, Deputy President Lord Wilson Lord Hughes Lord Toulson MS (Uganda) (Appellant) and Secretary of State for the Home Department (Respondent) Appellant Michael Biggs (Instructe......
-
Upper Tribunal (Immigration and asylum chamber), 2021-04-20, HU/20329/2019
...or 120 agreement; or by the failure of the parties or the tribunal to be alive to the point", a decision followed in MS(Uganda) v SSHD [2014] EWCA Civ 50, the failure to raise the issue of jurisdiction does not confer statutory jurisdiction and a mistake by the Secretary of State’s represen......
-
Upper Tribunal (Immigration and asylum chamber), 2016-07-11, DA/02156/2013
...raised then fairness required that the parties should be given the opportunity to address it. Virk was followed in MS(Uganda) v SSHD [2014] EWCA Civ 50. Miss Akter in reply submitted that there is no authority for the proposition that the failure by the appellant to be alive to this issue a......