Upper Tribunal (Immigration and asylum chamber), 2015-05-11, [2015] UKUT 325 (IAC) (R (on the application of Badalge) v Secretary of State for the Home Department (IJR))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Warr |
| Status | Reported |
| Date | 11 May 2015 |
| Published date | 11 June 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 08 April 2015 |
| Subject Matter | IJR |
| Appeal Number | [2015] UKUT 325 (IAC) |
IN THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
R (on the application of Badalge) v Secretary of State for the Home Department IJR [2015] UKUT 00325 (IAC)
Field House
London
Hearing date: Wednesday, 8 April 2015
Judgment handed down: Monday 11th May 2015
Before
UPPER TRIBUNAL JUDGE WARR
Between
THE QUEEN (ON THE APPLICATION OF KALUM KRISHANTHA KANDA ADDARA BADALGE)
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr M Biggs of Counsel, instructed by SEB Solicitors appeared on behalf of the Applicant.
Mr M Gullick of Counsel, instructed by the Government Legal Department appeared on behalf of the Respondent.
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APPLICATION FOR JUDICIAL REVIEW
JUDGMENT
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JUDGE warr:
1. The applicant is a citizen of Sri Lanka born on 15 August 1979. He arrived in this country as a student in 2010. On 24 February 2014 he made an application for further leave to remain as a student. This was an in-time application as his leave expired on 28 February 2014. The applicant’s leave was extended pursuant to Section 3C of the 1971 Immigration Act.
2. The application for judicial review relates to decisions reached by the respondent on 15 July 2014. On that date the respondent decided to remove the applicant from the United Kingdom under Section 10 of the Immigration and Asylum Act 1999. She also reached a decision on the outstanding application for leave to remain. The respondent noted that the applicant had submitted a certificate from the Educational Testing Service (ETS) in relation to his application and it was the respondent’s contention that ETS had found “significant evidence to conclude that your certificate was fraudulently obtained.” Accordingly the respondent found that the applicant had used deception and refused the application under paragraph 322(1A) of the Immigration Rules. In the refusal letter under the heading “Section C: right of appeal” the respondent wrote as follows:
“This decision is not an immigration decision under Section 82. Section 82(2) (d) concerns a ‘refusal to vary the person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain’.
This is not the situation in this case, as the effect of the prior Section 10 decision means that any existing leave to enter or remain in the United Kingdom was invalidated under Section 10(8) so you have no leave to enter or remain at the time the decision to refuse to vary leave to remain was notified.”
3. In contrast the removal decision informed the applicant that he was entitled to appeal under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 but only after he had left the United Kingdom.
4. In a nutshell the applicant contends that he has an in-country right of appeal. Permission was granted by Upper Tribunal Judge Coker on 29 September 2014.
5. The short point in this case is that since the applicant submitted his application for further leave to remain as a Tier 4 (General) Student on 24 February 2014 before the expiry of his leave to remain the refusal decision should generate an in-country right of appeal.
6. The argument was considered by the Administrative Court in Shahbaz Ali v Secretary of State for the Home Department [2014] EWHC 3967 (Admin) (Helen Mountfield QC sitting as a Deputy High Court Judge).
7. In that decision the judge decided that the decision to remove the applicant preceded the decision to refuse the application. Mr Biggs submits that the decision was wrongly decided and refers to paragraph 25 where the judge stated:
“However, as a matter of law, I find that the removal decision preceded the refusal decision. It is clear from the caselaw that a decision takes effect at the moment when it is given, not the moment when it is drafted (see SSHD v Ahmadi [2013] EWCA Civ 512, [2014] 1 WLR 401 at [20-25]). Thus, accepting as I do that the removal decision was served first, at 6.19 am on 11 August 2014, and the refusal decision second, at 6.21am, it follows that the refusal decision was second in time.”
Counsel argues that in fact the case of Ahmadi [2013] EWCA Civ 512 decided the opposite. He submitted that at paragraph 22 of the judgment Sullivan LJ had decided that an immigration decision as defined by Section 82 of the 2002 Act takes place when that decision was taken and not when the notice of such a decision was given.
8. Counsel submitted that the applicant’s appeal right vested before the 1999 Act invalidated the applicant’s leave to remain. The decision had to be taken before notice of it was given it was submitted and Section 3C only took effect on notice of the decision being given. There was a clear distinction between an immigration decision and notice of the decision as was apparent from the cases of E (Russia) v Secretary of State [2012] EWCA Civ 357 and JN (Cameroon) v Secretary of State for the Home Department [2009] EWCA Civ 307. It was submitted that under Section 82(2)(d) of the 2002 Act the right of appeal vested when a decision within the terms of the Section was taken. Reference was made to SA (Section 82(2) (d): interpretation and effect) Pakistan [2007] UKAIT 00083. By way of contrast, Section 10(8) of the 1999 Act only had effect in invalidating the appeal rights which must have vested before the applicant’s leave to remain as extended by Section 3C was invalidated.
9. Paragraph 322(1A) of the Immigration Rules required the decision maker to refuse an application on being satisfied that deception had been used which contrasted with the discretionary regime under the 1999 Act. Accordingly the decision under the Immigration Rules must have preceded the Section 10 decision. While Section 10 invalidated any leave to enter or remain previously given, it did not divest a right of appeal. An in-country right of appeal would not be an empty one and the Secretary of State would be bound to acknowledge the declaratory effect of a determination to the effect that the decision under Section 10 was unlawful.
10. Mr Gullick submitted that what was said by Sullivan LJ in Ahmadi made the position quite clear in paragraphs 22 to 25 of the judgment:
“22. I readily accept Mr. Blundell's submission that the 2002 Act, in sections 82 and 105 draws a distinction between making, or taking an immigration decision, and giving written notice of that decision to the person concerned. I do not accept his submission that the same approach is to be found in the 1971 Act. Section 3 confers the power to give and to vary leave to remain. The first part of section 4(1) provides that this power shall be exercised by the Secretary of State. The second part of section 4(1) provides that the power "shall be exercised by notice in writing given to the person concerned." The notice in writing is not a subsequent step following the exercise of the power; it is the way in which the power is to be exercised. Mr. Blundell's submission invites us to read section 4(1) as though it said: "and notice in writing shall be given to the person concerned of the exercise of the power."
23. The authorities relied upon by Mr. Blundell, Rafiq [[1998] Imm IR 193] and Hashmi [[2002] EWCA Civ 728], do not support his submission. Hashmi turned on its own facts and established no point of principle, while Rafiq tends to support Mr. Malik's submission: that the decision-making process prescribed by section 4(1) (and section 3C (6) and rule 2 of the 2006 Regulations) is not the making of a decision followed by the notification of that decision to the person concerned, but the making of a decision by giving notification of it to the person concerned. Although the Court, for understandable reasons given the very different legislative context, did not consider that the Yeovil case was of particular significance, it did consider that the proposition that there was no planning permission unless and until notice of planning permission had been given to the applicant was consistent with the Secretary of State's case on section 4(1), which it accepted.
24. Section 3C (6) and the 2006 Regulations are consistent with section 4(1). The 2006 Regulations do not determine when notice is to be given of a decision on an application for variation of leave; they determine when an application is decided for the purposes of section 3C: it is not decided until notice has been given. I do not accept Mr. Blundell's submission that the 2006 Regulations apply only for the purpose of determining when an application is "decided" in paragraphs 3C(1)(c) and (2)(a), and have no application to paragraph 3C(2)(b). The 2006 Regulations determine when an application for variation of leave is decided for the purposes of section 3C as a whole. There has to be a consistent approach to this question throughout the section. Paragraph 3C (2) (b) extends leave during any period when an appeal could be brought under section 82(1) of the 2002...
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