Sheraz Mehmood and Another v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Mr Justice Roth,Lord Justice Sullivan |
| Judgment Date | 14 July 2015 |
| Neutral Citation | [2015] EWCA Civ 744 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 July 2015 |
| Docket Number | Case No: C4/2014/1300; C4/2014/4122 |
[2015] EWCA Civ 744
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Steven Kovats QC [2014] EWHC 1608 (Admin)
Helen Mountfield QC [2014] EWHC 3967 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sullivan
Lord Justice Beatson
and
Mr Justice Roth
Case No: C4/2014/1300; C4/2014/4122
The Queen on the applications of
Zane Malik and Rajiv Sharma (instructed by Farani Javid Taylor Solicitors LLP) for the First Appellant
Zane Malik and Niaz Shah (instructed by Mayfair Solicitors) for the Second Appellant
Lisa Giovannetti QC and Mathew Gullick (instructed by Government Legal Department) for the Respondent
Hearing date: 7 July 2015
I. Introduction
The appeals of Sheraz Mehmood ("the first appellant") and Shahbaz Ali ("the second appellant") are lead appeals behind which 27 other appeals have been stayed. Mr Mehmood and Mr Ali are both citizens of Pakistan. They had leave to enter the United Kingdom as Tier 4 (General) Students. Mr Mehmood entered on 27 August 2011 and Mr Ali in April 2014. Their student visas were valid until 19 November 2013 (in Mr Mehmood's case) and 30 December 2013 (in Mr Ali's case). Before that date they both applied for a variation of the period of their leave.
The Secretary of State later invalidated the appellants' leave by giving them notice pursuant to section 10 of the Immigration and Asylum Act 1999 ("the 1999 Act") of a decision by her to remove them, and refused their applications for variation of their leave. Section 10(8) of the 1999 Act (set out at [15] below) provides that notice of the decision to remove "invalidates any leave to enter or remain … previously given to him". I shall refer to decisions under section 10 as "removal" decisions.
After the "removal" decisions, both appellants were detained pursuant to the powers in Schedule 3 to the Immigration Act 1971 ("the 1971 Act"). Mr Mehmood was detained from 4 December 2013 until 13 January 2014. Mr Ali was detained on 11 August 2014, but after these proceedings were filed on 28 August, the removal directions were stayed by Sir Stephen Silber and he was released on 1 September 2014.
Judicial review proceedings challenging the removal decisions were filed by Mr Mehmood on 23 December 2013 and by Mr Ali on 28 August 2014. In a decision given on 15 April 2014 (see [2014] EWHC 1608 (Admin)), Steven Kovats QC sitting as a Deputy Judge of the High Court refused Mr Mehmood's renewed application for permission to apply for judicial review. In a decision given on 27 November 2014 (see [2014] EWHC 3967 (Admin)), Helen Mountfield QC, also sitting as a Deputy Judge of the High Court, dismissed the Mr Ali's application for judicial review, permission for which had been granted by Lang J on 15 September 2014. On 10 July 2014 Briggs LJ gave Mr Mehmood permission to appeal. On 3 February 2015 I gave Mr Ali permission to appeal.
II. The questions in these appeals
Two principal questions fall for decision in these appeals. The first is whether a person whose leave to be in the United Kingdom has been invalidated by the Secretary of State who has also made a decision to remove that person at a time when an application by that person for a variation of his leave is pending has a right to an "in-country appeal", that is has a right to have his appeal heard while he is in the United Kingdom, or whether he has only an "out-of-country" appeal. The resolution of that question primarily involves considering the interaction of section 3C of the 1971 Act, section 10 of the 1999 Act, and sections 82 and 92 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). I shall refer to it as "the section 10 question". The Deputy Judges held that the appellants did not have an in-country appeal.
The second question before the court concerns the circumstances in which, notwithstanding a statutory right to an "out-of-country" appeal to the Immigration and Asylum Chamber of the First-tier Tribunal, it is appropriate for the matter to be dealt with in judicial review proceedings, whether in the Administrative Court or in the Immigration and Asylum Chamber of the Upper Tribunal. I shall refer to this as "the adequate alternative remedy question". The Deputy Judges held that the circumstances of these appellants were not sufficiently "exceptional" or "special" to make it appropriate to use judicial review to challenge decisions which could be challenged by an out-of-country appeal.
In the case of Mr Ali there is another question, which was referred to at the hearing as "the sequencing question". Does the sequence of the notices of the decision invalidating his leave and the decision refusing his application for a variation of his leave means that his right is to an "in-country appeal" whatever the answer to the first question? Is the relevant date the date on the decision letter when it was assumed it was made, or is it the date on which notice in writing of the decision was given to Mr Ali? Ms Mountfield held that what was relevant was the latter date and that Mr Ali was not assisted by the "sequencing" submissions made on his behalf.
At the beginning of the hearing, Mr Malik, on behalf of Mr Mehmood, abandoned a challenge to the certification by the Secretary of State of a human rights claim Mr Mehmood made after the removal decisions. He was right to do so. Mr Malik also accepted, on behalf of both appellants, that, if they succeeded on the questions that fall for decision, their cases would have to be remitted for a decision on the merits, so we were not concerned with those. In the case of success on the section 10 question, the remission would be to the tribunal, which would hear in-country appeals by them. In the case of the "adequate alternative remedy" question, the remission would be to the Administrative Court.
Notwithstanding this, as will be seen, in relation to the "the adequate alternative remedy question" Mr Malik submitted that, in Mr Ali's case, one of the "exceptional" or "special" circumstances justifying the exercise of the judicial review jurisdiction was that the Secretary of State's decisions to refuse the application for a variation of his leave and to remove him were made without "worthwhile evidence" and without giving him prior notice and an opportunity to make representations, questions that go to the merits of his case.
In sections III and IV of this judgment I summarise the material statutory provisions and the factual background. In section V, I analyse the decisions of the Deputy Judges, the submissions and give my reasons for concluding that the appeals should be dismissed. I have so concluded essentially for the reasons given by Ms Mountfield in her judgment in Ali's case. Mr Kovats' decision in Mehmood's case, a renewed application for permission to apply for judicial review, is understandably and commendably brief. Save in one respect with which I deal at [48] below when considering "the sequencing question", it is to the same effect as hers.
III. The statutory provisions
These appeals are not governed by the significant amendments to the legislation governing the immigration appeal system made by the Immigration Act 2014, including the replacement of "in-country" appeals by administrative review, with effect from October 2014 for new Tier 4 applications, and from 6 April 2015 for other categories of applicant. They are governed by the legislation in force prior to those amendments taking effect.
I start with the 1971 Act. The first material provision is section 3. Section 3(1) provides that a person who is not a British citizen shall not enter the United Kingdom "unless given leave to do so … [and] may be given leave to enter … or … leave to remain … either for a limited or for an indefinite period". By section 3(1)(c), if leave is given for a limited period, it may be given subject to the conditions set out in the sub-section, including one "restricting his employment". By section 3(3)(a), "a person's leave … may be varied … by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions" attached to it.
The key provision of the 1971 Act for the purpose of these appeals is section 3C. The heading to it states: "Continuation of Leave Pending Variation Decision". The section, when read with section 4 of the 1971 Act (see [14] below), empowers the Secretary of State to vary the leave of those with limited leave to enter or remain who apply for variation of the leave before their leave expires. It provides that in such a case the leave "is extended by virtue of" the section during the period pending a decision on the application, in which an "in-country" appeal could be brought, the withdrawal of the application, or where the applicant leaves the United Kingdom: see section 3C(2) and (3). Section 3C(4) prohibits a person from making an application for variation of his leave while that leave is extended "by virtue of" section 3C(2). It thus prohibits a further application to vary after section 3C has started to operate.
Section 4(1) of the 1971 Act provides:
"The power under this Act … to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State; and, unless otherwise allowed by or under this Act, those powers shall be exercised by notice in writing given to the...
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