Pengeyo and Others v Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Lloyd,Lord Justice Sullivan |
| Judgment Date | 11 November 2010 |
| Neutral Citation | [2010] EWCA Civ 1275 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: C5/2010/0304 C5/2010/0145 IA/20046/2008,IA/01861/2009 & IA/19237/2009 |
| Date | 11 November 2010 |
[2010] EWCA Civ 1275
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Before : Lord Justice Sedley
Lord Justice Lloyd
and
Lord Justice Sullivan
Case Nos: C5/2010/0304
C5/2009/2188
C5/2010/0145
IA/20046/2008,IA/01861/2009 & IA/19237/2009
Mr Benjamin Hawkin (instructed by Messrs Duncan Lewis & Co) for the 1 st Appellant
Mr Zane Malik (instructed by Malik Law) for the 2nd Appellant
Mr Nazir Ahmed (instructed by Messrs Sultan Lloyd) for the 3rd Appellant
Ms Susan Chan (instructed by Treasury Solicitors) for the Respondent
Hearing date: Thursday, 22 July 2010
Lord Justice Sedley :
These three appeals raise a common issue: if the immigration decision which is being appealed to the Immigration and Asylum Chamber carries no right of in-country appeal, but the point is not taken on appeal to the First-Tier Tribunal, can it thereafter be contended that there was no jurisdiction to entertain the appeal?
Mr Adjo's case raises an important further issue: even if the principal ground attracts no right of appeal, does the introduction of a human rights ground carry an in-country right of appeal?
For present purposes the facts can be shortly stated. For reasons which will become apparent, we include the facts of Ms Pengeyo's case notwithstanding that on the eve of the hearing the material decision was withdrawn by the Home Secretary and the appeal accordingly compromised.
Ms Pengeyo, a Namibian national, enrolled in December 2006 as a dental nursing student at the London School of E-Commerce, an institute at that time recognised as bona fide by the Home Office, and was granted leave to remain for this purpose until January 2009. In May 2008, however, the college was removed from the register of training and education providers because it had been found to be issuing bogus qualifications and providing no real training. Ms Pengeyo asked the Home Office for advice and was advised to find a new provider, which she did. Despite this, the Home Office in November 2008 made a decision to remove her from the United Kingdom on the ground that she had obtained leave to remain by deception. It was subsequently found by the then Asylum and Immigration Tribunal (AIT) (IJ Jamieson) – subject to the question of jurisdiction to which I will come – that Ms Pengeyo had acted honestly throughout and had been deceived by the college into parting with a substantial amount of money for tuition which, while unsatisfactory, was by no means non-existent. The Home Office, he found, had had “no sufficient basis upon which to infer that the appellant ought to have known [the college] was not a genuine institution”.
Very much the same happened to Mr Anwar, a national of Pakistan. He had leave to remain until January 2009 in order, latterly, to study at the London School of E-Commerce. In November 2007, while the college was still on the register, he left it because its service was substandard and joined a more reputable institute. Yet, in consequence of the removal of the college from the Home Office register the following year, he too was notified of an intention to remove him on the ground that he had obtained leave to remain by deception. On appeal to the AIT, IJ Bailey-King unsurprisingly acquitted him of any deception. His counsel did not seek to press his Article 8 claim if, as in the event happened, his appeal was allowed on its merits.
Neither Ms Pengeyo nor Mr Anwar received anything remotely resembling a hearing, or even notice of what was contemplated, from the Home Office. Each was presented out of the blue with a decision – as it turned out, a wholly unfounded one —that they had been guilty of obtaining leave by deception (a criminal offence: Immigration Act 1971, s. 24A) and that they were to leave forthwith the country where they were lawfully and at considerable expense pursuing their studies. I will return to the legal implications of this arbitrary and unjust conduct.
Mr Adjo, a Ghanaian national, is an overstayer who in October 2007 was served first with notice of liability to removal and then with a removal decision. His appeal against this decision on human rights and other grounds failed. In November 2008 he submitted a human rights application based on a relationship with a person settled in the United Kingdom. The Home Secretary turned it down, but IJ Callender Smith allowed his appeal under Article 8 on the ground that removal would be a disproportionate interference with his primary rights.
On reconsideration, all three appeals were dismissed, the first two (by SIJs Allen and Eshun, and by SIJ Warr) on the ground that the immigration judge had lacked jurisdiction, since these were appeals which could by law not be pursued while the appellant was still in the United Kingdom, the third (by SIJ Chalkley) on the ground that there was no right of appeal at all. The jurisdictional challenge was renewed when permission was sought to appeal to this court. Sullivan LJ and I on 14 Dec 2009 held —see [2009] EWCA Civ 1495 – that this court had jurisdiction to hear and determine the question of the AIT's jurisdiction. Lord Neuberger MR and Sullivan LJ subsequently granted permission to appeal in the present cases. Pending her appeal, judicial review proceedings brought on Ms Pengeyo's behalf in the Administrative Court, challenging the Home Secretary's election to use a power carrying no right of appeal in-country when another less draconic power was available to her, have been stayed.
On the eve of the hearing of these appeals the Home Secretary withdrew the deception decisions made against Ms Pengeyo and Mr Anwar. Ms Pengeyo withdrew her appeal on agreed terms, but Mr Anwar continued with his for fear, as his counsel Mr Malik put it, that a similar decision might be substituted. It was only when Ms Chan, for the Home Secretary, undertook in open court not to do so that Mr Malik accepted that he had now achieved by consent as much as he could achieve by judgment. But at the court's request both sides were heard on the question of jurisdiction.
The law
The most material provisions are these:
Immigration & Asylum Act 1999
10. Removal of certain persons unlawfully in the United Kingdom.
(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if—
(a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;
(b) he has obtained leave to remain by deception; or
(c) directions (“the first directions”) have been given for the removal, under this section, of a person (“the other person”) to whose family he belongs.
….
(8) Directions for the removal of a person given under this section invalidate any leave to enter or remain in the United Kingdom given to him before the directions are given or while they are in force.
Nationality, Immigration and Asylum Act 2002
82. Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal [ to the Tribunal ].
(2) In this Part “immigration decision” means—
…..
(c) refusal of a certificate of entitlement under section 10 of this Act,
(d) 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,
(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,
(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,
(g) a decision that a person is to be removed from the United Kingdom by way of directions under [ section 10(1)(a), (b), (ba) or (c) ] of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom),
[(ha) a decision that a person is to be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave),]
…..
(j) a decision to make a deportation order under section 5(1) of that Act, and
…….
(4) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.
84. Grounds of appeal
(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—
(a) that the decision is not in accordance with immigration rules;
(b) that the decision is unlawful by virtue of section 19B of the Race Relations Act 1976 (c. 74) (discrimination by public authorities) [ or Article 20A of the Race Relations (Northern Ireland) Order 1997];
(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;
(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;
(e) that the decision is otherwise not in accordance with the law;
(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;
(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach...
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