Upper Tribunal (Immigration and asylum chamber), 2006-03-16, [2006] UKAIT 29 (AH (Notices required))
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton |
| Status | Reported |
| Date | 16 March 2006 |
| Published date | 03 April 2006 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 25 January 2006 |
| Subject Matter | Notices required |
| Appeal Number | [2006] UKAIT 29 |
ASYLUM AND IMMIGRATION TRIBUNAL
AH (Notices required) Bangladesh [2006] UKAIT 00029
THE IMMIGRATION ACTS
Heard at: Manchester Date of Hearing: 25 January 2006
Date of Promulgation: 16 March 2006
Before:
Mr C M G Ockelton (Deputy President)
Mr P W Cruthers (Immigration Judge)
Mr S P Alis (Immigration Judge)
Between
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Miss M Plimmer, A S Law Solicitors
For the Respondent: Mr M Raj, Home Office Presenting Officer
Although some of the requirements of the Notices Regulations can be waived and not all of the requirements for giving Notice of Appeal are mandatory, there can be no appeal without a Notice of Decision and a Notice of Appeal.
DETERMINATION AND REASONS
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The Appellant is a citizen of Bangladesh. He came to the United Kingdom on 14 May 1998 with entry clearance as a spouse. He was granted leave to enter for one year. During that period of time, the marriage failed. On 11 May 1999, however, while the Appellant still had leave, he applied for further leave to remain in order to enable him to continue his paternal role towards the son of the marriage.
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On 4 May 2000, the Secretary of State refused his application for further leave to remain on the ground that there was no provision in the Immigration Rules for the granting of leave to remain for such a purpose; and that he did not consider that there were sufficient reasons to justify his departure from the Rules in the Appellant’s case. The Appellant appealed to an Adjudicator under section 14 of the 1971 Act. The grounds of appeal were as follows:
“[The] decision is flawed. Any steps to force me to leave the UK will breach the UK’s obligations under Article 8 ECHR.”
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The explanatory statement prepared for the purposes of the appeal is dated 22 May 2003. It refers to further correspondence with the Appellant’s solicitors in late 2002 and information submitted on the Appellant’s behalf at that time. It records that the Secretary of State does not accept the existence of a subsisting family life between the Appellant and his son, and notes that the Appellant could obtain entry clearance from abroad for the purpose for which he seeks leave to remain. The following sentences give the Secretary of State’s conclusion on the human rights issues put to him:
“The Secretary of State therefore does not accept that his decision breaches Article 8. … The Secretary of State has considered the further information which has been submitted, but can find no reason to reverse his decision.”
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The appeal came before an Adjudicator, Mrs N J Gladstone, on 26 April 2004. At the hearing, it was conceded on the Appellant’s behalf that the Appellant could not succeed in an appeal under the Immigration Rules, because, as the Secretary of State had indicated, the application was for a purpose not covered by the Immigration Rules. Mrs Gladstone was nevertheless persuaded by the parties to hear an appeal on human rights grounds. Her determination records that the Respondent’s representative, having spoken to a senior caseworker, reported that “the view was taken that the explanatory statement of 22 May 2003 was, in effect, a reconsideration as it addressed Article 8. On that basis there was a human rights appeal.” The Appellant’s representative agreed. In the result, the Adjudicator considered that the decision to refuse to vary was appealable (although doomed to failure) under the Immigration Rules as they were on 4 May 2000, and was also appealable on the basis of the Appellant’s human rights as they were at the date of the hearing. Having considered the evidence and arguments before her, she dismissed the appeal.
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The Appellant applied for and was granted permission to appeal to the Immigration Appeal Tribunal. In granting leave, the Vice President made it clear that the issue of whether the Adjudicator had jurisdiction to deal with an appeal on human rights grounds would have to be addressed. Following the commencement of the appeals provisions of the 2004 Act, the grant of permission to appeal operates as an order for reconsideration by this Tribunal. The matter was listed on 3 November 2005, but it appears that neither the Appellant nor the Respondent were properly prepared to argue the point, and the Tribunal as then constituted felt itself unable to deal with the issue in those circumstances. The appeal was then relisted to be heard by us. There was a suggestion that (apparently because of the complexity of the issues involved) the matter should be regarded as reserved to the original panel of the Tribunal; but Miss Plimmer did not persist with that submission before us.
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The difficulty arises because the date of the decision refusing to vary leave was before 2 October 2000, which is the date upon which the Human Rights Act 1998, and the Immigration and Asylum Act 1999 (which gave an appeal to an Adjudicator on human rights grounds) came into force. There can be no doubt that if the appeal had been heard promptly after the date of the decision and before 2 October 2000, the Adjudicator would have had no jurisdiction to consider human rights grounds. There are provisions for situations such as the present, where the decision was before, but the appeal is heard after, 2 October 2000. They are in paragraph 1 of Schedule 2 to the Immigration and Asylum Act 1999 (Commencement No 6, Transitional and Consequential Provisions) Order 2000 (SI 2000/2444). That paragraph is headed “Transitional provisions relating to the 1999 Act”, and subparagraph 7 is as follows:
“Section 65 (human rights appeals) is not to have effect where the decision under the Immigration Acts was taken before 2nd October 2000.”
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The consequences of that provision were explored by the Tribunal in Pardeepan* [2000] UKIAT 00006. An appellant’s human rights are justiciable after 2 October 2000; but they need a new decision and a new appeal as his old appeal against a pre-commencement decision cannot be argued on human rights grounds.
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The reason why the present case is said to be less simple than that is the existence of the explanatory statement dated 22 May 2003 and dealing with human rights issues. That is said to have given the Adjudicator, and to give us, jurisdiction to deal with human rights issues because it is a decision on those issues, made since 2 October 2000 and hence appealable on human rights grounds. We must therefore consider whether it is indeed such a decision.
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In our view, there are three separate reasons why it is not. The first is that, on its terms which we have set out above, the explanatory statement purports to make no new immigration decision but merely to decline to reverse the decision made in May 2000. The second is that there is a line of authorities, including R v IAT and SSHD ex parte Banu [1999] Imm AR 161 and Hanif v SSHD [1985] Imm AR 57, to the effect that a review of a previous decision by the Secretary of State or an Entry Clearance Officer does not constitute a fresh decision. The third reason is that there are provisions for the formal notification of a decision giving a right of appeal under s65 in circumstances where, as s65 puts it, a person alleges that an authority has, in taking any decision under the Immigration Acts relating to his person’s entitlement to enter or remain in the United Kingdom, acted in breach of his human rights. Those provisions are in the Immigration and Asylum Appeals (Notices) Regulations 2000 (SI 2000/2246). The Regulations provide in general that notices of decisions which are appealable have to be given in writing and to include a number of factors including the right of appeal and how to exercise it. Regulation 4(4) is as follows:
“No notice of decision is required to be given … by reason only of the fact that the decision could be appealed under section 65 of the 1999 Act … if the person in question were to make an allegation that an authority had acted in breach of his human rights in taking it; but such notice must be given upon such allegation begin made.”
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There is no doubt that a notice should have been given under that Regulation. The duty to do so did not arise on the submission of the grounds of appeal, because the Human Rights Act was not in force then; but there is no doubt that the solicitors’ letter of 17 October 2002, to which in essence the human rights paragraphs in the explanatory statement are a response, was an allegation under s65. As we understand the matter, the Secretary of State’s obligation to serve a notice in response to that allegation is still unfulfilled.
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