R (Nirula) v First-tier Tribunal (Asylum and Immigration Chamber)

Hearing date: 25 th October 2012

The question in this case is whether an appellant, who seeks to appeal from a decision of the Secretary of State to remove him because he was guilty of deception on entry to the United Kingdom, can appeal that decision while he is in this country, if he also has a human rights claim on the basis of an established family and/or private life in this country. If the only question were whether he was in fact guilty of deception, it is clear that the Secretary of State could remove him before his appeal is heard and, if he is still in this county, could object to any appeal being heard until he leaves. That is because section 92(1) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") so provides. But section 92(4) of that Act also provides that an appeal can be brought, while the appellant is in the United Kingdom, if the appellant

"has made an asylum claim, or a human rights claim, while he is in the United Kingdom."

Three questions arise:—

i) whether the asylum claim or (in this case) the human rights claim has to be made before a Notice of Appeal is served or whether it is sufficient to make it in the Notice of Appeal to the First Tier Tribunal ("FTT") on appeal from the Secretary of State's decision;

ii) whether, if the claim is not so made, the FTT can raise the question of the jurisdiction of the FTT to hear the appeal of its own motion or whether it can it only decide the question if the Secretary of State (or her representative) specifically raises the point;

iii) if the Secretary of State is required to raise the point, does she sufficiently do so if in her Notice of Decision she states that the potential appellant may appeal "After removal".

Immigration Judge Bennett sitting in the FTT held that it was insufficient to take a human rights claim for the first time in the Notice of Appeal to the FFT and that it should have been made at an earlier stage and held, further, that he therefore had no jurisdiction to determine the appeal while the appellant was in this country. Mr Nirula decided to apply for judicial review of that decision rather than to appeal it. The matter therefore came before the Administrative Court. Deputy High Court Judge Timothy Brennan QC adjourned the application for permission to apply for judicial review into court for oral argument with the application to follow if permission was granted.

Deputy High Court Judge Mr C. M. G. Ockelton granted permission but decided

i) that it is too late to raise a human rights claim for the first time in a Notice of Appeal since, in a case which would otherwise require an out of country appeal, any asylum claim or a human rights claim has to be made before a Notice of Appeal is served; the appellant must, adapting the language of section 92(1), "have made" his claim at an earlier stage;

ii) that, at any rate if the Secretary of State has indicated to a potential appellant in the decision to remove him that any appeal can only be brought once he has left the United Kingdom, the FTT can decide that it has no jurisdiction to entertain the appeal, without specifically asking the representative of the Secretary of State whether the Secretary of State wishes to take the point that no appeal will lie while the appellant is in the United Kingdom.

In so doing he questioned, in obiter remarks of his own, certain parts of the decision of this court in Anwar v SSHD [2011] 1 WLR 2552 which he considered were obiter to that decision. Sullivan LJ has now given permission to appeal to this court because the first part of the decision gives rise to a point of principle and because it is desirable for this court to decide whether what he referred to as "Sedley LJ's observations" in Anwar (to which Sullivan LJ was himself a party) were correct.

The Facts

Mr Nirula is a national of Nepal. On 13 ^th November 2003, he entered the United Kingdom with his wife. He had entry clearance as a work permit holder. On 16 ^th October 2008, he obtained indefinite leave to remain. He applied for citizenship, but that was refused because he admitted to having used multiple identities.

On 27 ^th August 2010, the claimant was arrested and detained. In interview, he admitted that he had obtained leave to enter using a different identity from his own. The Secretary of State served him with forms indicating that he was, for that reason, an illegal entrant. The second form served on him notified the claimant of the Secretary of State's decision to remove him as an illegal entrant, who had obtained entry by deception. It informed him of a right of appeal which he could exercise "After removal".

The claimant filed a Notice of Appeal with the FTT, the respondent to these proceedings. In the Notice of Appeal, the claimant said that he had a right under Article 8 of the European Convention on Human Rights. The grounds of appeal were as follows:—

"i. The Secretary of State's decision is not in accordance with the Immigration Rules.

ii. The decision is unlawful because it is incompatible with the appellant's rights under the European Convention on Human Rights.

iii. The decision to remove the appellant from the United Kingdom is unlawful.

iv. The decision is otherwise not in accordance with the law.

v. The discretion under the Immigration Rules should have been exercised differently.

Reasons

The Secretary of State has failed to consider the fact that the appellant has been in the UK for many years. He has an established family and private life in the UK. He has a wife and child in the UK. The child was born in the UK.

In the time he has been in the UK he has also built a private life here. The Secretary of State has failed to consider the appellant's lengthy stay in the UK and the significant bonds he has formed whilst in the UK.

In all the circumstances, it would be disproportionate and unlawful for the Secretary of State to remove the appellant from the UK.

The appellant and his representatives reserve the right to amend or elaborate on these grounds at a later date."

The claimant remained in the United Kingdom at the time of that notice and at the time of his purported appeal. He had never previously invoked any Article of the European Convention on Human Rights to justify his presence here.

On 18 ^th November 2010, the FTT convened to consider issues raised by the appellant's Notice of Appeal. Immigration Judge Bennett immediately raised the issue of jurisdiction. Both parties were represented before him. He drew the attention of the appellant's representative to the issue, and he invited Mr Nirula to file evidence and/or submissions as to jurisdiction, adjourning for that purpose.

On 1 ^st December, Mr Nirula's representatives filed submissions. On 19 ^th January 2011, the FTT decided that it had no jurisdiction to hear his purported appeal, because Mr Nirula had not left the country.

On 14 ^th May 2011, the claimant was sentenced to 8 months imprisonment for gaining entry to the UK by deception. On 2 ^nd June 2011, the Secretary of State wrote to the claimant, offering to consider his human rights claim if it were made to the Secretary of State. Mr Nirula rejected that offer claiming that in law he was entitled to appeal while he was still in this country. It is not easy to see why he rejected this offer unless it is to prolong his indeterminate status for as long as possible

The Statutory Provisions

The legal provisions relevant to this claim are as follows. First, an illegal entrant is defined by section 33 of the Immigration Act 1971 to include a person who has entered the United Kingdom by deception.Paragraphs 8 to 10 of Schedule 2 to the 1971 Act provide a power to remove illegal entrants. In the present claim there is no challenge either to the jurisdiction of the Secretary of State to issue the decision that she did issue in relation to the claimant's history, or to her assessment of him as an illegal entrant.

Part 5 of the Nationality, Immigration and Asylum Act 2002 is headed "Immigration and Asylum Appeals". It consists of sections 81 to 117 of the Act. Section 82 provides, so far as relevant to this claim, as follows:—

"(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal. (2) In this part "immigration decisions means" … [and there is a list, including]

(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971."

Section 84 provides for grounds of appeal against an immigration decision. One such ground is that the decision is contrary to the European Convention on Human Rights, and another is that the removal of the claimant in consequence of the decision would breach the United Kingdom's obligation under...