R (Chichvarkin) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Longmore,Lord Justice Mummery |
| Judgment Date | 10 February 2011 |
| Neutral Citation | [2011] EWCA Civ 91 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2010/1982 |
| Date | 10 February 2011 |
[2011] EWCA Civ 91
[2010] EWHC 1858
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Hooper LJ and Parker J
Before : Lord Justice Mummery
Lord Justice Longmore
and
Lord Justice Richards
Case No: C4/2010/1982
Laurens Fransman QC and Duran Seddon (instructed by Gherson) for the Appellants
Tim Eicke (instructed by The Treasury Solicitor) for the Respondent
Hearing date : 2 December 2010
Lord Justice Richards :
This case concerns the lawfulness of the Secretary of State's withdrawal of a decision refusing variation of leave to remain in the United Kingdom, in circumstances where the decision was the subject of an appeal to the tribunal under the "one-stop" procedure, the appellants had raised asylum and human rights grounds for the first time at the appellate stage and wanted those grounds to be determined by the tribunal, and the purpose of the withdrawal of the original decision was to enable the Secretary of State to reconsider that decision and to consider the new asylum and human rights claim as primary decision-maker. The appellants' central contention is that the withdrawal of the original decision was inconsistent with the statutory scheme governing one-stop appeals. We were told that this is the lead case of a number of cases raising similar issues.
In a clear and closely reasoned judgment of the court, given by Kenneth Parker J, the Divisional Court dismissed the appellants' challenge to the Secretary of State's withdrawal decision: see [2010] EWHC 18580 (Admin). An appeal is now brought against the Divisional Court's order, with permission granted by Pill LJ.
The appeal was listed before this court under the title EC (Russia). Subject to any further submissions by counsel, however, I see no reason for an order preventing identification of the appellants. No such order appears to have been made by the Divisional Court and the appellants' full names are given in the judgment of that court. Moreover, it is evident from the submissions and evidence that the case has a very public background to it. For the sake of economy, however, I will refer to the appellants (who are husband and wife) as "Mr C" and "Mrs C" respectively.
Factual background
The appellants' evidence is that Mr C is a household name in Russia. In 1997 he and a business partner established Euroset, a mobile phone company which was eventually to become Russia's biggest mobile phone retailer. In 2000 the company adopted a low price policy leading to a great increase in turnover and market share. Its rapid expansion and success placed Mr C within the top echelon among business people in Russia. Under pressure of criminal proceedings and against his will, in September/October 2008 Mr C sold Euroset. He claims that the criminal allegations are bogus and trumped up but that the criminal proceedings escalated because (1) he sold Euroset at the last minute to a party other than that to which he had come under sustained pressure to sell it, and (2) backed by substantial personal wealth, he turned to mainstream political opposition. The antagonism of the Russian establishment towards him is said to be exacerbated by his informal and flamboyant style.
Against that background, as they describe it, the appellants entered the United Kingdom as visitors, together with their two children, in December 2008. Not long afterwards, in January 2009, Mr C was finally charged in Russia, in his absence, with offences relating to kidnap and extortion and a Russian court issued a warrant for his arrest. In due course there was a request for his extradition to Russia from the United Kingdom.
In May 2009 Mrs C applied for her existing leave to be varied, to leave to remain as a Tier 1 (Investor) Migrant, under paragraph 245S of the Immigration Rules. Mr C and the children applied for leave to remain as her dependants. Mrs C did not have the entry clearance required by paragraph 245S, but she asked the Secretary of State to exercise a discretion to allow her in-country application, on the ground that the situation in Russia made it unreasonable for her to return to Russia for the purpose of making the application from there.
In Mr C's accompanying statement and in a covering letter of 12 May 2009 from the appellants' solicitors, it was stated expressly that Mr C was not at that time making an asylum claim or a human rights claim but he reserved the right to do so.
Mrs C's application for variation of leave was considered by an official within the "Tier 1 Highly Skilled 7" section of the UK Border Agency, based in Sheffield. The application was refused on 21 August 2009, on the ground that Mrs C did not satisfy the requirement as to entry clearance and the Secretary of State was not minded to exercise discretion in her favour. The decision noted that Mr C had reserved the right to make an asylum application and stated that the UK Border Agency was prepared to consider such an application as and when it was made. The applications by Mr C and the children as dependants were similarly considered and refused. The decision notice sent to Mr C stated that his asylum application should be made in person at an Asylum Screening Unit ("ASU").
The decision notices gave information as to rights of appeal and grounds of appeal, including grounds relating to asylum and human rights. Each notice also included a standard "One-Stop Warning – Statement of Additional Grounds" pursuant to s.120 of the Nationality, Immigration and Asylum Act 2002, stating inter alia that the relevant appellant must "now inform us of any reasons why you think you should be allowed to say in this country" and that "if you later apply to stay here for a reason which you could have given us now, you may not be able to appeal if the application is refused".
On 7 September 2009 Mr and Mrs C and the children appealed against the decisions. The grounds of appeal included the following:
"15(B) For the avoidance of doubt, all the appellants also appeal on the following grounds (applicable if and when it is finally determined that the in-country variation applications were lawfully and rightly rejected):
- removal to Russia from the UK as a result of the decision would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellants' human rights; and
- such removal would breach the United Kingdom's obligations under the Refugee Convention."
No particulars were given of those grounds other than the following assertions:
"42. Removal to the Russian Federation, would also breach the appellants' human rights. The way in which such breaches arise are set out in the supporting evidence on which the appellants rely. As indicated above, SSHD says nothing at all in rebuttal of anything contained therein and is to be taken to have accepted the risks asserted ….
43. Further, for similar factual reasons in respect of the human rights allegation (including the risk of abusive politically motivated prosecution), removal to Russia would breach the Refugee Convention."
The statement in para 42 that the Secretary of State must be taken to have accepted the risks asserted was plainly misconceived and Mr Laurens Fransman QC, for the appellants, did not seek to defend it.
By letter of 2 October 2009, the appellants' solicitors gave notice to the Secretary of State on behalf of Mr C "that he requires the protection of the United Kingdom and will make a formal asylum application in due course by attending the Asylum Screening Unit (ASU)". The letter explained that extradition proceedings against Mr C had commenced in September 2009, triggering the need to apply for asylum or human rights protection. It repeated that the purpose of the letter was not to apply for asylum but to put the Secretary of State on notice, and that Mr C would pursue his formal application by attending the ASU as soon as could reasonably be arranged.
In the event, Mr C did not proceed with a formal asylum application as referred to in the letter of 2 October. At some point the appellants decided in the light of AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1078, [2010] 2 All ER 21 (see, further, below) not to make a separate asylum application but to pursue the asylum matter solely as a ground of appeal in the existing proceedings before the tribunal.
In letters dated 7 January 2010 to the tribunal and the appellants' solicitors the Home Office Presenting Officer, Mr Briant, acknowledged that once a "one-stop" notice had been issued the tribunal had to consider asylum and human rights issues if raised in the appeal, but pressed for a formal asylum claim to be made in the normal way at the ASU and referred to the possibility of the case being adjourned "for our normal process to be completed" if a claim was made before the date of the next hearing.
In a reply dated 11 January 2010 the appellants' solicitors stated that the overriding concern was to proceed lawfully and as expeditiously as possible, that AS (Afghanistan) affirmed that protection issues were to be determined by the tribunal as part of the one-stop appeal process (a course which the appellants preferred because it put the tribunal in control of the timetable) and made clear that it was considered wrong and undesirable for Mr C now to attend the ASU and make an...
To continue reading
Request your trial
-
SM (Withdrawal of Appealed Decision: Effect) Pakistan [Asylum and Immigration Tribunal]
...such power is excluded”. The “principles of public law” were found by the Divisional Court (and, on appeal, by the Court of Appeal: [2011] EWCA Civ 91) not to embrace the proposition, advanced on behalf of Mr Chichvarkin and his wife, that the Secretary of State could withdraw a decision i......
-
G v G
...Ex p Sivakumaran [1988] AC 958; [1988] 2 WLR 92; [1988] 1 All ER 193, HL(E)R (Chichvarkin) v Secretary of State for the Home Department [2011] EWCA Civ 91R (Detention Action) v First-tier Tribunal (Immigration and Asylum Chamber) [2015] EWCA Civ 840; [2015] 1 WLR 5341; [2016] 3 All ER 626, ......
-
Upper Tribunal (Immigration and asylum chamber), 2014-02-11, [2014] UKUT 64 (IAC) (SM (withdrawal of appealed decision: effect))
...such power is excluded”. The “principles of public law” were found by the Divisional Court (and, on appeal, by the Court of Appeal: [2011] EWCA Civ 91) not to embrace the proposition, advanced on behalf of Mr Chichvarkin and his wife, that the Secretary of State could withdraw a decision in......
-
Kozlowski v District Court of Torun, Poland
...continue. 15 The third case to which my attention was drawn was R (Chichvarkin & Ors) v Secretary of State for the Home Department [2011] EWCA Civ 91. This case confirmed the lawfulness of the withdrawal by the Home Secretary of a decision refusing a variation of leave to remain in the Unit......