Patel and Others v Secretary of State for the Home Department [Sup Ct]

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Carnwath,Lord Reed,Lord Hughes,Lord Mance,Lord Kerr
Judgment Date20 November 2013
Neutral Citation[2013] UKSC 72
Date20 November 2013

[2013] UKSC 72

THE SUPREME COURT

Michaelmas Term

On appeal from: [2012] EWCA Civ 741; [2012] EWCA Civ 960

before

Lord Mance

Lord Kerr

Lord Reed

Lord Carnwath

Lord Hughes

Patel and others
(Appellants)
and
Secretary of State for the Home Department
(Respondent)
Anwar
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
Alam
(Appellant)
and
Secretary of State for the Home Department
(Respondent)

Appellants (Patel and others)

Zane Malik

(Instructed by Malik Law Chambers Solicitors)

Respondent

Jonathan Swift QC

David Blundell

(Instructed by Treasury Solicitors)

Appellant (Anwar)

Zane Malik

Shahadoth Karim

(Instructed by Malik Law Chambers Solicitors)

Appellant (Alam)

Zane Malik

Shahadoth Karim

(Instructed by Kalam Solicitors)

Heard on 3 and 4 July 2013

Lord Carnwath (with whom Lord Kerr, Lord Reed and Lord Hughes agree)

1

These appeals raise issues as to the respective duties of the Secretary of State and the First-tier Tribunal, on an appeal against refusal of an application to vary leave to enter or remain under the Immigration Act 1971, more particularly as to the operation of the so-called "one-stop" procedures. The Master of the Rolls (para 40), echoing words of Jackson LJ, described the law in this field as "an impenetrable jungle of intertwined statutory provisions and judicial decisions". It is difficult to disagree, although on this occasion the judiciary must share some of the blame.

Facts
The Patels
2

Mr Patel and his wife arrived from India in the United Kingdom on 24 March 2009. He had been granted leave to enter as a working holiday-maker until 6 March 2011, and she as his dependent wife. Their only child was born here in 2010. On 26 February 2011, they applied for further leave to remain in the UK, relying on article 8 of the European Convention on Human Rights, and rule 395C of the Immigration Rules. Their application was refused by the Secretary of State on 30 March 2011. That refusal was neither combined with, nor followed by, a decision to remove the family from the United Kingdom. They had a right of appeal to the First-tier Tribunal, but that was dismissed on 14 July 2011. The merits of the refusal on the issues there raised are no longer in dispute.

3

On further appeal to the Upper Tribunal they took a new point. This was that, in the light of the decision of the Court of Appeal in R (Mirza) v Secretary of State for the Home Department [2011] EWCA Civ 159, [2011] Imm AR 484, followed in Sapkota v Secretary of State for the Home Department [2011] EWCA Civ 1320, [2012] Imm AR 254, the Secretary of State's failure to make a removal decision at the same time as, or shortly after, the decision to refuse leave to remain was unlawful. This argument, which failed before the Upper Tribunal and the Court of Appeal, is the principal issue in this court.

Mr Alam
4

Mr Alam, a citizen of Bangladesh, entered the country on 26 August 2007, as a Tier 4 student with leave to remain until 12 April 2011. On 1 April 2011 he applied for leave to remain to continue his studies. On 20 April 2011 the Secretary of State refused his application on the basis that he had not produced the required documentation. The bank statements submitted with his application were more than a month old, and therefore did not, as required by the guidance under the "Points-Based System", show that he had held the necessary level of funds for "a consecutive period ending no more than one month before the application".

5

By the time of the hearing before the tribunal, on 10 June 2011, he had produced the appropriate bank statements. The tribunal held that, for the purposes of his appeal under the rules, this new material was excluded from consideration by section 85A of the Nationality, Immigration and Asylum Act 2002 (which had come into effect between the date of his appeal and the date of the hearing). However, the immigration judge held that this did not prevent him taking it into account in the appeal under article 8 of the Convention, on the basis that, since "he clearly meets the requirements of the rules", it was not proportionate to the aims of immigration control to refuse his application.

6

The Upper Tribunal reversed that decision, holding that the judge had erred in treating the new evidence as showing effective compliance with the rules for the purpose of article 8. The tribunal accepted that the appellant having been in the country undertaking studies for some four years had thereby formed "some sort of protected private life" for the purposes of article 8. But no other aspect of his life in this country was relied on. His family ties were all with his native Bangladesh, to which he wished to return after his studies. Although the new evidence was not directly relevant under article 8, it took account of the unusual circumstances in which the right to prove compliance with the rules had been lost:

"… I have… considered the circumstances in which the claimant has failed to meet the Rules: viz. that he is one of a necessarily fixed class whose ability to prove compliance with the Rules has changed by operation of law since he began his appeal proceedings. Those circumstances do, to some extent, diminish the State's interest in removing the claimant, merely in order to maintain the integrity of the Rules. If the claimant's article 8 rights had been any stronger, I might well have concluded in the circumstances that his removal in consequence of the immigration decision would be disproportionate. As it is, however, I consider that the balance falls to be struck in favour of the Secretary of State." (para 22)

Mr Anwar
7

Mr. Anwar, a citizen of Pakistan, entered on 26 February 2010 with leave to remain as a student until 1 April 2011. On 31 March 2011 he applied to extend his leave as a Tier 4 student to enable him to complete his course. The application was supported by a Confirmation of Acceptance for Studies ("CAS"), which recorded that he had been assessed by reference to a document entitled "ACCA examination Financial Accounting (F3)". The F3 document itself was not included with the application.

8

On 10 May 2011 the Secretary of State refused the application because, contrary to the relevant guidance, it had not included a document referred to in the CAS, and accordingly no points had been awarded for the CAS. On his appeal to the First-tier Tribunal the appellant produced the relevant document, claiming that it had in fact been sent with his application form. The tribunal allowed his appeal, but their decision was set aside by the Upper Tribunal, which held that on the balance of probabilities he had not sent the relevant document with his application. That factual finding is not now in dispute. Although there was a reference to the European Convention in the grounds of appeal to the First-tier tribunal, no separate appeal on human rights grounds was pursued at the hearing before either tribunal.

9

The Court of Appeal heard the appeals of Mr Alam and Mr Anwar together, and dismissed them both on 13 July 2012. The arguments were wide-ranging, summarised by Sullivan LJ under eight grounds. Most are no longer in issue.

The issues
10

According to the agreed statement, the following issues are said to arise in the appeals to this court:

Patel

i) Whether there is an obligation on the Secretary of State to issue a decision to remove at the same time as or immediately after refusing an individual's application for variation of leave to remain in the United Kingdom.

ii) Whether there is an obligation on the Secretary of State to issue a one-stop notice under section 120 of the 2002 Act when refusing an individual's application for variation of leave to remain in the United Kingdom.

iii) Whether the Secretary of State's refusal to vary an individual's leave to remain in the United Kingdom is unlawful if it is issued in isolation from a one-stop notice or a decision to remove.

Alam/Anwar

iv) Whether the conclusion of the majority in AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076, [2011] 1 WLR 385, that an appeal to the FTT covers not only any ground before the Secretary of State when she made the decision under appeal but also any grounds raised in response to a one-stop notice issued under section 120 of the 2002 Act, even if they had not been the subject of any decision by the Secretary of State and did not relate to the decision under appeal, is correct.

v) Whether the statements and evidence filed by Mr Alam and Mr Anwar to the FTT amounted to "additional grounds" under section 120 of the 2002 Act which the FTT was obliged to consider and determine, notwithstanding the bar in section 85A of that Act.

vi) In an article 8 case, when balancing the demands of fair and firm immigration control against the disruption to the family or private life of a person if removed for non-compliance with the Immigration Rules, whether the nature and degree of the non-compliance is significant or, as the Court of Appeal has held (in Miah v Secretary of State for the Home Department [2012] EWCA Civ 261; [2013] QB 35), irrelevant.

11

While these issues were agreed between the parties, and they conveniently identify the main matters on which we heard submissions, it will be necessary to consider in due course the extent to which they do properly arise for decision on these appeals. For example, the question of an obligation to serve notices under section 120 (issue (ii)) does not arise in any of the three cases, since such notices were in fact served in all of them.

The statutory provisions
12

The Immigration Act 1971, and the rules made under it, constitute the principal statutory framework for the control of immigration, and the Secretary of State's functions in that respect. Both the statute and the rules have been subject to...

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