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

(As Approved)

THE DEPUTY JUDGE: This is an application for permission to apply for judicial review ordered into court by Timothy Brennan QC, sitting as a Deputy Judge of this court, who also ordered the substantive hearing to take place immediately, if permission be granted.

The principal issue as to the jurisdiction of the First-tier Tribunal in the circumstances of the present case is one which clearly troubled Mr Brennan, and I am told troubles some other judges. For that reason, I extend time so far as is necessary, and grant permission. The extension of time for those purposes does not, of course, mean that the timescale in relation to these proceedings as a whole becomes irrelevant. I deal with that matter at the end of this judgment.

The facts

The facts are as follows. The claimant is a national of Nepal. On 13 November 2003, he entered the United Kingdom with his wife. He had entry clearance as a work permit holder. On 16 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 August 2010, the claimant was arrested and detained. In interview, he appears to have admitted that he had obtained leave to enter using a different identity from his own. The Secretary of State for the Home Department 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. It informed him of a right of appeal which he could exercise from outside the United Kingdom.

The claimant filed a Notice of Appeal with the First-tier Tribunal, the defendant 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. I will read out the grounds of appeal in full. They are 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:

2. 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.

3. 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.

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

i. 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 has done ever since. He had never previously invoked any Article of the European Convention on Human Rights to justify his presence here.

On 18 November 2010, the Tribunal convened to consider issues raised by the appellant's Notice of Appeal. I do not doubt that it was thought that the hearing might include the substantive consideration of the appeal, but the Immigration Judge 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 submissions as to jurisdiction.

On 1 December, the claimant's representative filed submissions. On 19 January 2011, the Tribunal decided that it had no jurisdiction to hear the claimant's purported appeal. Its reasoning was as follows.

First, the claimant did not fall within section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002, because the wording and grammar of that paragraph require a human rights claim to have been made prior to the filing of a Notice of Appeal; secondly, that the Secretary of State had taken the jurisdictional point in the Notice of Decision, and there was no need for it to be raised again formally at the hearing.

The Tribunal's records are said to indicate that that decision was served on the claimant and his solicitors. That certainly would be the usual practice, and it is what is required by the First-tier Tribunal's rules. The claimant's solicitors assert that they did not receive the Notice of Decision. They requested another copy on 1 February 2011, which was received on 21 February 2011. The present claim was filed on 26 April 2011.

I should complete the story of the facts, so far as they bear on the claimant's history, in this way. On 14 May 2011, the claimant was sentenced to 8 months' imprisonment. On 2 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.

The law

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. I should say that 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:

i. "(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'… [and there is a list, including]

ii. (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 to the Immigration Act 1971."

Section 84 provides for grounds of appeal against an immigration decision. One 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 obligations under that Convention.

Section 92 is headed "Appeal from within United Kingdom: general". That section provides, so far as relevant, as follows:

i. "(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies. (2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f), (ha) and (j)

ii.…

iii. (4) This section also applies to an appeal against an immigration decision if the appellant—(a) has made an asylum claim, or a human rights claim, while in the United Kingdom, or(b) is an EEA national or a member of the family of an EEA national and makes a claim to the Secretary of State that the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom."

Section 113 of the same Act defines a human rights claim as follows:

i. "'Human rights claim' means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or to require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998…As being incompatible with his Convention rights."

Although there is reference to the certification provisions of section 94 and 96 in the written skeleton arguments and there was reference to them at the hearing, I do not need to set them out here.

The issues: 1: "has made"

Mr Malik's claim raises two principal issues.

The first is whether, in the circumstances of this case, the claimant is be to regarded at the relevant time as a person who "has made" a human rights claim within the meaning of section (92)(4)(a). That is important because, as his appeal is not against one of the kinds of decision mentioned in s (2)(4)(a), he will otherwise have no statutory right of appeal while he remains in the United Kingdom.

The position is, as I have indicated, that the claimant made his human rights claim for the first time in his Notice of Appeal, and the question is, broadly speaking, whether that was too late. Mr Malik, on behalf of the claimant, submits that the claimant has, by the ordinary use of language, made a human rights claim, and by the time the Tribunal comes to consider the issue, that claim is in the past. It must be, because it was in the Notice of Appeal.

In response, Mr Dunlop on behalf of the Secretary of State points out that "human rights claim" is defined in section 113 as "made by a person to the Secretary of State in a designated place," and that...