Kenneth Muchena (ap) Against The Secretary Of State For The Home Department For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Clarke |
| Neutral Citation | [2015] CSOH 108 |
| Court | Court of Session |
| Published date | 11 August 2015 |
| Year | 2015 |
| Date | 11 August 2015 |
| Docket Number | P90/15 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 108
P90/15
OPINION OF LORD CLARKE
In the petition
KENNETH MUCHENA (AP)
Petitioner;
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
for Judicial Review of a decision dated 1 September 2014, certifying the petitioner’s further submissions under section 96(1) of the Nationality, Immigration and Asylum Act 2002
Petitioner: Lindsay QC, Winter; Drummond Miller LLP
Respondent: Pirie; Office of the Advocate General
11 August 2015
[1] In this petition for judicial review, the petitioner seeks reduction of a certification under section 96(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), contained in a letter dated 1 September 2014, and a consequential decision by the respondent contained in the same letter to refuse to revoke a deportation order relating to the petitioner.
[2] The relevant legislation is as follows:
Section 82(1)A of the 2002 Act provides that:
“Where an immigration decision is made in respect of a person he may appeal to the Tribunal.”
Section 82(4) provides:
“(4) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.”
One of the aforementioned exceptions and limitations is set out in section 96 of the 2002 Act. When a right of appeal does exist, section 82 sets out the grounds on which such an appeal may be brought including grounds relating to the Geneva Convention and the Human Rights Act 1998. Section 85 sets out matters to be considered on an appeal made under section 82. These include any matter raised in a statement made by a person under section 120 in response to what is commonly known as a “one‑stop notice”, which constitutes a ground of appeal of a kind listed in section 84(1) of the 2002 Act.
Section 85 includes the following:
“(1) An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).
(2) If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.
(3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.”
Section 120 makes provision for service of a “one‑stop notice” upon a person who has applied to enter or remain in the UK or in respect of which an immigration decision has been taken. It provides as follows:
“120 Requirement to state additional grounds for application
(1) This section applies to a person if—
(a) he has made an application to enter or remain in the United Kingdom, or
(b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him
(2) The Secretary of State or an immigration officer may, by notice in writing, require the person to state —
(a) his reasons for wishing to enter or remain in the United Kingdom, and
(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and
(c) any grounds on which he should not be removed from or required to leave the United Kingdom.
(3) A statement under subsection (2) shall not repeat reasons or grounds set out in—
(a) the application mentioned in subsection (1)(a), or
(b) an application to which the immigration decision mentioned in subsection (1)(b) relates.”
Paragraph 4 of schedule 6 to the 2002 Act provides:
“Earlier Appeal
In the application of section 96
(a) a reference to an appeal or right of appeal under a provision of this Act includes a reference to an appeal or right of appeal under the Immigration and Asylum Act 1991.
(b) a reference to the requirements imposed under this Act includes a reference to requirement of a similar nature imposed under that Act.
(c) a reference to a statement made in pursuance of a requirement imposed under a provision of this Act includes a reference to anything done in compliance with a requirement of a similar nature under that Act, and
(d) a reference to notification by virtue of this Act includes a reference to notification by virtue of any other enactment.”
Section 96 of the 2002 Act (as amended by section 30 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004) sets out a certification procedure which, in the circumstances therein specified precludes any right of appeal under section 82 against certain new decisions. Section 96, as amended, provides:
“Earlier Right of Appeal
(1) An appeal under section 82(1) against an immigration decision (‘the new decision’) in respect of a person, may not be brought if the Secretary of State or an immigration officer certifies—
(a) that the person was notified of a right of appeal under that section against another immigration decision (‘the old decision’) (whether or not an appeal was brought or whether or not any appeal brought has been determined),
(b) that the claim or application to which the decision relates relies on a matter that could have been raised in an appeal against the old decision, and
(c) that, in the opinion of the Secretary of State, or the immigration officer, there is no satisfactory reason for this matter not having been raised in an appeal against the old decision.
(2) An appeal under section 82(1) against an immigration decision (‘the new decision’) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies—
(a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,
(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and
(c) that in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in response to that notice.”
The purpose of the foregoing provisions was, broadly speaking, to remove an individual’s right of appeal, where he has exercised a previous right of appeal against a decision, which has failed and when he now seeks to rely on new material which could, and ought to, have been raised in the previous appeal.
[3] It was a matter of agreement in the present case between counsel for both sides as to how the power of certification in section 96 falls to be exercised by the respondent or an immigration officer. It was furthermore accepted by senior counsel for the petitioner that, in the present case, the respondent had been justified in determining that the three factors set out in section 96(2) of the 2002 Act, which have to be met before certification can occur, had been met in the present case. But that is not the end of the matter. The exercise under section 96 has been held to involve a further stage in the decision making process, before the right of appeal can be excluded. The way in which matters should be addressed was set out in the decision of Stadlen J in R (on the application of J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin) at paragraph 106, a decision which has been followed and applied in subsequent decisions by the courts in both England and Wales and Scotland. At paragraph 106 his Lordship was to the following effect:
“Under section 96(1) and (2) before the Secretary of State can lawfully decide to certify, she has to go through a four stage process. First she must be satisfied that the person was notified of a right of appeal under section 82 against another immigration decision (section 96(1)) or that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision (section 96(2)). Second she must conclude that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision (section 96(1)(b)) or that the new decision relates to an application or claim which relies on a matter that should have been but was not raised in a statement made in response to that notice (section 96(2)(b)). Third she must form the opinion that there is no satisfactory reason for the matter not having been raised in an appeal against the old decision (section 96(1)(c)) or that there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice (section 96(2)(c)). Fourth she must address her mind to whether, having regard to all relevant factors, she should exercise her discretion to certify and conclude that it is appropriate to exercise the discretion in favour of certification" (emphasis added)
[4] The one remaining point argued by the petitioner was that, in carrying out the certification procedure, in the present case, under section 96, the decision in relation to which is to be found in the said letter of 1 September 2014 (6/2 of process), the respondent failed to go through the fourth stage in the process, set out in the passage cited from Stadlen J’s judgment. That fourth stage, it will be noted, requires the respondent to carry out an exercise of discretion. While that is not expressly required in terms of the relevant legislation, it was common ground that, having regard to the nature of the certification process and its effect, such a requirement falls to be implied in all cases where the powers under section 96 were being exercised.
[5] Having identified the one issue now remaining in this petition, and the relevant legislative provisions, it is appropriate for me to set out some the material history of the petitioner which has led to the present...
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