R (on the application of Roohi and Another) v Home Secretary
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice McCloskey,Mr C M G Ockelton |
| Judgment Date | 05 October 2015 |
| Neutral Citation | [2015] UKUT 685 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 05 October 2015 |
[2015] UKUT 685 (IAC)
In the Upper Tribunal (Immigration and Asylum Chamber)
The Hon. Mr Justice McCloskey, PRESIDENT
Mr C M G Ockelton, VICE PRESIDENT
In the Matter of an Application for Judicial Review
The Queen on the Application of
Mr M Biggs, instructed by Mayfair Solicitors, appeared on behalf of the Applicants.
Mr W Hansen, instructed by the Government Legal Department appeared on behalf of the Respondent
R (on the application of Roohi and Another) v Secretary of State for the Home Department (2014 Act: saved appeal rights) IJR
(1) The commencement of the Immigration Act 2014 does not remove rights of appeal from those who were served with appealable decisions before 6 April 2015.
(2) This means that those with a right of appeal exercisable only from outside the United Kingdom (including some ETS cases), have an adequate alternative remedy, and as such judicial review will not lie save in a small minority of cases that are in some way exceptional.
The “ETS cases” arise from decisions refusing to extend, or effectively terminating, a large number of individuals' leave to remain in the United Kingdom. Following a broadcast investigation by the television programme “Panorama” and internal review by Educational Testing Services itself, the conclusion was reached that many English language certificates issued by ETS had been obtained in a fraudulent manner, because thousands of tests had been undertaken not by the person named on the certificate but by somebody else. The effect of this discovery, and the Secretary of State's action on it, varied between individuals. Some had an in-country right of appeal against the decision about their leave; others had or have a right of appeal exercisable only from outside the United Kingdom. Efforts by substantial numbers of those in the latter class to maintain judicial review proceedings have been met by the Secretary of State's argument that permission should be refused because there is an adequate alternative remedy in the form of the out-of-country appeal, prescribed by Parliament in their case. The Secretary of State's argument to that effect has been accepted; and it is clear that, for those who have an out-of-country right of appeal, judicial review will not lie save in a small minority of cases that are in some way exceptional. We do not need to give any more detail about the background, which is set out in detail in judgments by Beatson LJ in R (Mehmood and Ali) v SSHD [2015] EWCA Civ 744 and R (Sood) v SSHD [2015] EWCA Civ 831.
The claims for judicial review fall for determination by this Tribunal in those cases covered by the Lord Chief Justice's direction under s.18(6) of the Tribunals, Courts and Enforcement Act 2007, and otherwise by the High Court. Many of the claims were stayed awaiting the judgments of the Court of Appeal to which we have referred. When those judgments were both available, the Tribunal's staff began, on judicial authority, a process of writing to the individual claimants inviting them to say whether, in the light of the authoritative statements of the law now available, they wished to proceed with their claim and, if they did, requiring them to submit amended grounds within a specified timescale, failing which their applications would be automatically struck out.
The present applications for permission to apply for judicial review are amongst those in which amended grounds have been submitted. They raise the same issue, and after setting out the facts we shall not need to distinguish between them. The issue is one of general application. Mr Biggs submits on their behalf that, as a result of the commencement of the relevant provisions of the Immigration Act 2014, they do not have a right of appeal of any sort, and that judicial review is accordingly an appropriate remedy: indeed, he argues, it is their only remedy.
Ms Roohi is a national of Pakistan. She came to the United Kingdom on 11 August 2012 as a student. On 29 December 2013 she sought an extension of her student leave. On 14 January 2014 she was granted further leave, expiring on 30 November 2015. Her application had been supported by an English language certificate from ETS. After investigation the Secretary of State gave notice on 25 September 2014 that she proposed to remove Ms Roohi from the United Kingdom on the ground that she had used deception in seeking leave to remain. Under s.10(8) of the Immigration and Asylum Act 1999 that notice had the effect of invalidating the leave previously given. The notice of decision correctly indicated that she could appeal against it after she had left the United Kingdom.
Ms Patel is a national of India. She came to the United Kingdom on 11 September 2009 with leave as a student. The leave was extended a number of times. The most recent extension was granted on 14 September 2013, to expire on 12 April 2015. Ms Patel's application was also supported by an English language certificate from ETS. In her case after investigation the Secretary of State served notices on 11 August 2014, with the same content and same effect as those served on Ms Roohi.
Each of the Applicants has remained in the United Kingdom without leave following service of the removal decisions.
The Immigration Act 2014 makes sweeping changes to the rights of appeal in respect of immigration decisions. The changes are in Part 2 of the Act, and take effect for the most part by amending the appeals provisions of Part 5 of the Nationality, Immigration and Asylum Act 2002. It is common ground that, under the provisions of the 2014 Act, there is no appeal against decisions such as those that the Applicants challenge.
The relevant provisions of the 2014 Act have been introduced by commencement orders. For present purposes we need refer only to the Immigration Act 2014 (Commencement No.3, Transitional and Saving Provisions) Order 2014 ( SI 2014/2771) as amended by the Immigration Act 2014 (Commencement No.4, Transitional and Saving Provisions and Amendment) Order 2015 ( SI 2015/371). So far as these applications are concerned, the effect of those orders is that the appeals provisions of the 2014 Act are brought into effect with certain savings. The appeals provisions that were in force immediately before commencement continue to apply (and the 2014 provisions do not apply) in so far as they relate to decisions in a number of classes set out in article 9(1) of the No.3 Order as amended by the No.4 Order. Four classes are set out in article 9(1). The first three are particular types of decision made on or after 6 April 2015, which is the relevant commencement date. Those provisions clearly have no impact on the present applications. Article 9(1)(d) is the only provision which saves appeal rights in relation to a decision made before 6 April 2015. It does so in the following words:
“(d) a decision made before 6th April 2015 in relation to which, immediately before 6th April 2015, an appeal could have been brought or was pending under the saved provisions”.
Mr Biggs' submission is in essence perfectly simple. The Applicants each had a right of appeal that could be exercised only from outside the United Kingdom. Immediately before 6 April 2015 (and indeed at all relevant times) the Applicants were not outside the United Kingdom. For that reason they could not have brought an appeal. The words of article 9(1)(d) therefore do not apply to them, and no right of appeal was saved. Since 6 April 2015 they have been without a right of appeal.
Mr Biggs deployed his argument with his customary industry and subtlety. He reminded us that the statutory bar on bringing an appeal from within the United Kingdom is jurisdictional and not merely procedural. He referred to Mucelli v Government of Albania [2009] 1 WLR 276, R (Nirula) v First-tier Tribunal [2012] EWCA Civ 1436 and Virk v SSHD [2013] EWCA Civ 652. Mindful of that distinction, Mr Biggs examined other uses of the word “bring” and its cognates in the context of the institution of proceedings, with the aim of showing that the phrase “could be brought” must refer to circumstances in which there is no jurisdictional bar.
In what Mr Biggs described as the analogous context of the Limitation Act 1980, which sets out the time limits for “bringing actions”, the authorities, including Page v Hewetts Solicitors [2012] EWCA Civ 805, and Horton v Sadler [2006] UKHL 27 show that an action is “brought” when the claimant has done all that he could do to issue the claim, but the failure to “bring” an action in time does not raise a jurisdictional bar. We do not find that analogy at all helpful: it does not assist at all in determining whether an action could be brought.
Mr Biggs then drew attention to s.3C of the Immigration Act 1971 as reformulated by the Nationality, Immigration and Asylum Act 2002 and amended by the Immigration, Asylum and Nationality Act 2006. That section provides...
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