Upper Tribunal (Immigration and asylum chamber), 2014-01-23, AA/03866/2013
| Jurisdiction | UK Non-devolved |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 23 January 2014 |
| Published date | 19 February 2014 |
| Status | Unreported |
| Appeal Number | AA/03866/2013 |
Appeal Number: AA/03866/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03866/2013
THE IMMIGRATION ACTS
|
Heard at North Shields |
Determination Sent |
|
on 6th December 2013 |
on 23rd January 2014 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
M S F
(Anonymity order in force)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Selway of hallidayreeves Law Firm
For the Respondent: Mrs Rackstraw – Senior Home Office Presenting Officer.
DETERMINATION AND REASONS
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On the 9th August 2013, at a hearing at North Shields, it was found that First-tier Tribunal Judge Holmes erred in law in proceeding to determine this appeal when there was, in law, no jurisdiction to do so. Paragraph 12 of the error of law finding is in the following terms:
12. The difficulty with the above is that it is not clear on what basis the First- tier Tribunal considered they had jurisdiction. The effect of section 83 is to arguably specifically exclude by statute any right of appeal against the decision made in this case. Indeed in the letter granting a period of discretionary leave dated 11th April 2013 it is clearly stated that the decision is not an appealable decision. A statement by a party or purported agreement cannot confer statutory jurisdiction and the decision of 3 May cannot confer jurisdiction if none exists.
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The matter comes before me today for the purposes of a resumed hearing.
Discussion
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The Appellant claimed asylum on 9th November 2011. His claim was refused on the 26th March 2013 although he was granted discretionary leave until 25th December 2012, a period of eight months. Section 83 of the Nationality, Immigration and Asylum Act 2002 applies where a person has made an asylum claim and his claim has been rejected by the Secretary of State but he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year or for periods exceeding one year in aggregate. Section 83 (2) states that such a person may appeal to the Tribunal against the rejection of his asylum claim. The effect of the statutory provisions is that a person who has a claim rejected but who is granted leave to remain for a period of less than one year has no right of appeal.
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Mr Selway submitted that notwithstanding the above statutory provisions the fact the First-tier Tribunal have made a decision on the appeal means the Upper Tribunal cannot say that Tribunal does not have jurisdiction. I find such a submission has no merit. In Virk v Secretary of State for the Home Department [2013] EWCA Civ 652 it was held that although the SSHD had failed to raise before the First-tier Tribunal the issue of that Tribunal's jurisdiction to entertain a family's application for leave to remain, the Upper Tribunal was entitled to dismiss the family's subsequent appeal against the First-tier Tribunal's decision on the basis that the First-tier Tribunal had not had jurisdiction, notwithstanding that the point had not been raised below. In Virk it was said "Statutory jurisdiction cannot be conferred by waiver or agreement; or by the failure of the parties or the tribunal to be alive to the point". It was also said however that if the issue had not previously been raised then fairness required that the parties should be given the opportunity to address it.
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In this case the jurisdictional point was taken by the Respondent, as a reading of the papers clearly demonstrates, and there is no merit in a claim this is an issue that the Upper Tribunal are prevented from considering further. In relation to the challenge by Mr Selway that this is not a ‘Robinson obvious point’ it is clear from the facts this is an arguable issue and can be taken of the Upper Tribunals own motion.
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Mr Selway refers in his skeleton argument to delay by the Respondent which he claims has resulted in prejudiced to his client. The Appellant claimed asylum on the 9th November 2011, was assessed by Social Services on 16th April 2012, was interviewed on 23rd May 2012, but the decision to refuse was not issued until the 26th March 2013 at which point the discretionary leave was granted. Mr Selway argues that if the decision had been made earlier, as the Appellant’s age was accepted, the period of discretionary leave would have exceeded 12 months giving rise to a right of appeal. He argues that section 83 coupled with the principle of prejudice does not preclude his client from appealing.
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The issue of delay in considering claims by Afghan minors has been considered by the Court of Appeal on a number of occasions and in relation to other claims within this jurisdiction. I have not been referred to any authority supporting the proposition that a right of appeal specifically excluded by statute can be conferred in such circumstances. There has been no challenge to the legality of the decision or refusal to grant a right of appeal by way of judicial review. In relation to any alleged prejudice, the Appellant has been granted a period of leave, and has now applied to vary that leave so as to permit him to remain which, if refused, will give rise to a statutory right of appeal. Whilst the Applicant is not able to appeal this refusal of his asylum claim there is no indication that he will not be able to have the merits of his case considered at a later date by the Tribunal in an appeal against an appealable immigration decision, as confirmed by Mrs Rackstraw.
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Mr Selway also relied upon an argument that Article 39(2) is relevant as the denial of a right of appeal under section 83 is incompatible with European Union law, in particular the requirement for an effective remedy contained in Article 39 of Directive 2005/85/EC. This issues was considered by the High Court in R (on the application of S) v First-tier Tribunal [2012] EWHC 1815 (Admin), decided in July 2012. This is a judicial review claim which failed. In delivering judgment Mrs Justice Cox stated:
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Discussion and Conclusions
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The rights of appeal contained in sections 82, 83 and 83A of the 2002 Act constitute the measures implementing the obligations of the United Kingdom under Article 39 of the Procedures Directive. The "immigration decisions", listed at paragraphs (a) to (k) of section 82(2), give a general right of appeal where the decision means that the person has no legal basis for remaining in the UK, or that they are to be removed or deported. Under section 83 a person whose claim for asylum has been rejected, but who has been granted leave to remain on another basis for a period exceeding one year, may appeal against the rejection of their asylum claim. Under section 83A an appeal may also be brought by a person whose asylum claim has been accepted but who is subsequently the subject of a decision that he/she is not a refugee and continues to have leave to enter or remain other than as a refugee. Section 84 makes specific provision for the grounds of any appeal.
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The right of appeal that Parliament has afforded to people whose asylum claim has been rejected is therefore not a general right of appeal, but accrues only to those who have been granted leave to enter or remain for a period of more than one year in aggregate. A person whose claim for asylum is refused, but who is granted five months discretionary leave to remain, has no right of appeal unless he is granted a further period of leave, which extends beyond the one year period, although he may bring an application for judicial review to challenge the refusal of asylum.
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In the case of unaccompanied children, the reason why no removal decision is issued at the same time that their asylum claim is rejected is because of the Secretary of State's policy not to remove unaccompanied, asylum-seeking children whose claims have been rejected until such time as they are no longer under 18 years old, unless there are adequate reception arrangements in the country of return.
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In this case it is common ground that, following the "immigration decisions" made on 2 March 2011, the Claimant exercised, and is continuing to exercise his statutory right of appeal. It is also clear, in my view, that notwithstanding the rejection of his asylum claim, any decision to remove him during the period of his discretionary leave to remain would afford him a right of appeal in respect of both...
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