Pavandeep Virk & Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lord Justice Briggs,Lord Justice Leveson |
| Judgment Date | 12 June 2013 |
| Neutral Citation | [2013] EWCA Civ 652 |
| Docket Number | Case No: C5/2012/2503 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 June 2013 |
[2013] EWCA Civ 652
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (Immigration and Asylum Chamber)
Upper Tribunal Judge Kebede
IA/22330/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Leveson
Lord Justice Patten
And
Lord Justice Briggs
Case No: C5/2012/2503
Mr Zane Malik (instructed by Malik Law ChambersSolicitors) for the Appellants
Joanne Clement (instructed by TreasurySolicitor) for the Respondent
Hearing date: 17th April 2013
Approved Judgment
This is an appeal against a determination of the Upper Tribunal (Immigration and Asylum Chamber) ("UT") (Judge Kebede) dated 7 th August 2012 dismissing the appellants' appeal against the earlier dismissal by the First-tier Tribunal ("FTT") (Judge Beg) of their appeal under s.82 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") against the refusal of the Secretary of State to vary their leave to remain in the United Kingdom.
Ms Virk is an Indian national who was born on 25 th July 1986. She entered the United Kingdom on 7 th October 2009 as a student with leave to remain until 14 th January 2011. Her entry clearance was granted subject to student conditions of working no more than 20 hours per week during term time and with no recourse to public funds. Her Tier 4 sponsor was the London Business College in Woolwich.
Ms Virk acted in breach of her entry clearance conditions by moving from the London Business College to the London College of Excellence in Kenton Road, Harrow without informing the Secretary of State of the change. The London College of Excellence had its sponsor licence revoked on 19 th March 2010 so that the academic transcript and diploma certificate which Ms Virk submitted to the Secretary of State on 25 th November 2010 under the number of the revoked sponsor licence was treated by the Secretary of State as the submission of a false document. In addition, Ms Virk claimed child benefit for her child which was a further breach of her conditions of entry.
In the light of these breaches the Secretary of State refused her application for leave to remain in the United Kingdom as a Tier 4 (General) student migrant and with it the applications for leave to remain by her dependent husband and child. The refusal on these grounds was made under paragraph 322 (1A), (3) and (7) of the Immigration Rules. The application was also refused because Ms Virk failed to score any points under Appendix C to the Immigration Rules.
The application for leave to remain was made on 24 th January 2011, ten days after her existing leave expired, and was refused on 23 rd June 2011. The refusal letter stated in terms that Ms Virk was entitled to appeal the decision under s.82(1) of the 2002 Act and that if she did appeal Ms Virk was not required to leave the United Kingdom while the appeal was pending.
In these circumstances, Ms Virk lodged an appeal to the FTT on 29 th July 2011 on behalf of herself and her dependants. The grounds of appeal challenged the facts on which the decision was based and also relied on an alleged breach of Ms Virk's Article 8 rights. Ms Virk requested an oral hearing and the appeal was heard in the FTT by Judge Beg on 5 th September 2011. At that hearing the Secretary of State was not represented and no point was taken about the jurisdiction of the FTT to entertain the appeal. The judge set out Ms Virk's immigration history including the submission by her of false documents and noted that no question of discretion arose in relation to a mandatory refusal under Immigration Rule 322 (1A) based on the applicant's dishonesty or deception. Taking into account this and what he described as Ms Virk's fraudulent claim to child benefit, he concluded that the application had been properly refused under Immigration Rule 322 (3) and (7).
Ms Virk obtained permission to appeal to the Upper Tribunal on the ground that refusals under paragraphs 322 (3) and (7) of the Immigration Rules are discretionary and that no proper consideration had been given to the need to safeguard and promote the welfare of Ms Virk's child as required by s.55 of the Borders, Citizenship and Immigration Act 2009. On 28 th October 2011 the Secretary of State wrote to the UT indicating that she did not oppose the appeal and invited the UT to determine the appeal with a fresh oral (continuance) hearing to consider whether Ms Virk was entitled to have further leave to remain. On 8 th November 2011 Judge Macleman issued directions to the parties which referred to this request and continued:
"3. That response is unhelpful both as to the extent of error of law conceded, and as to the scope of the fresh decision which would be required. The appellants have raised issues wider than whether leave to remain should have been granted under Tier 4.
4. In the light of Sapkota [2011] EWCA Civ 1320 (see in particular paragraph 114) these appeals may require to be allowed on the basis that the original decisions were not in accordance with the law, and the SSHD has to make a fresh, comprehensive, decision.
5. Unless the parties show cause to the contrary in writing within 14 days of issue of these directions, the Upper Tribunal proposes to dispose of these appeals to that effect, without a hearing."
There was no response to these directions by either party but on 7 th August 2012 Judge Kebede proceeded to determine and dismiss the appellants' appeals without an oral hearing on the ground that the original applications for leave to remain were made after the expiry of their current leave to remain. The appellants therefore had no right of appeal and the FTT acted without jurisdiction in entertaining their appeals.
He therefore dismissed the appeals on that short ground and refused permission to appeal. Permission to appeal was granted by Davis LJ both in relation to whether there was jurisdiction to entertain the appeals and as to whether the determination of the appeals on paper without an oral hearing was unfair and contrary to the rules of natural justice given the indication in the directions I have quoted that the appeals would be allowed.
In this Court the Secretary of State has accepted that the UT acted in a procedurally unfair manner by dismissing the appeals without an oral hearing. Ms Clement accepts that, in the light of the directions, Judge Kebede should not have relied on the point about jurisdiction without at least giving the appellants the opportunity to consider and make submissions on that issue. She also accepts that although the principal issue for this Court is whether there was jurisdiction in the FTT to entertain an appeal against the refusal of the applications for leave to remain, that jurisdictional argument, if correct, does not create a bar to the Court of Appeal or, for that matter, the UT proceeding to determine whether there was any legal basis for the appeals. That seems to me to be clearly right. The jurisdiction conferred by ss. 11 and 13 of the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act") to determine any point of law arising from a decision of the lower tribunal must include the power to determine whether such a right of appeal exists at all.
The consequence of these concessions is that only two grounds of appeal are left to be considered. The first is whether the point about jurisdiction remains a bar to the appeal in the UT when it has not been taken in the FTT. The second is whether the UT had jurisdiction to decide the appeal on a point which was not raised in or determined by the FTT.
Section 82(1) of the 2002 Act grants a right of appeal against an immigration decision. This is defined by s.82(2)(d) as including:
"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,"
Mr Malik, on behalf of the appellants, accepts that if the application for leave was made, as it was in this case, after the expiry of the applicants' existing leave then a refusal of that application by the Secretary of State is not an immigration decision within the meaning of s.82(2). It follows that the appellants had no right of appeal against the refusal and the FTT had no jurisdiction to entertain the appeal except for the purpose of dismissing it. But Mr Malik submits that where the Secretary of State fails to take the jurisdiction point in the FTT the statutory bar in s.82(2)(d) cannot operate independently of the parties so as to determine the outcome of the appeal regardless of the respondent's implied acceptance that the FTT had jurisdiction to entertain the appeal.
He bases this submission on a distinction made by Sedley LJ in his dissenting judgment in Carter v Ahsan [2005] ICR 1817 between what he described as constitutive jurisdiction and adjudicative jurisdiction: that is the distinction between the statutory jurisdiction conferred on the relevant judicial body and its entitlement to reach a decision within that jurisdiction. In Anwar v Secretary of State for the Home Department [2011] 1 WLR 2552 where a decision of the FTT to entertain an appeal was later reversed on reconsideration on the ground that there was no jurisdiction to hear an in-country appeal, the Court of Appeal held that the FTT had adjudicative jurisdiction to entertain the appeal for the purpose of deciding whether the appellant had left the United Kingdom by the relevant time and that until that issue was resolved against the appellant it...
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Upper Tribunal (Immigration and asylum chamber), 2013-07-01, VA/16664/2012
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