EB (Turkey) v Secretary of State for the Home Department [2008] EWCA Civ 1595

Case No C5/2008/1393Case No C5/2008/1393(A)[2008] EWCA Civ 1595
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. IA/14733/2007]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 17 th December 2008
Before
LORD JUSTICE RIXLORD JUSTICE TOULSONLORD JUSTICE RIMER
Between
EB (TURKEY)AppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms K Olley (instructed by Treasury Solicitors) appeared for Appellant.Mr I Mauka (instructed by Messrs Traymans) appeared for Respondent.
Judgment
[1]This is an application by the Home Secretary for permission to appeal out of time against the decision of a Senior Immigration Judge, allowing an appeal by EB against the Home Secretary’s refusal of his application to be allowed to remain in the UK as a self-employed business person under HC 510, by virtue of the terms of the Turkish EC Association Agreement, otherwise known as the Ankara Agreement. I will come back to the question of leave at the end of this judgment. The history of the case is unusual and might be summed up as a comedy of errors, although there is in truth no comedy. EB is a Turkish national. On 22 March 2006 he was given leave to remain in the UK as a student until 28 February 2007. The terms of his student leave included an express prohibition on him engaging in business or self-employment. In September 2006, in breach of that condition, he took over a business called Yummies Kebab Shop in Upper Brynamman, Ammanford, Dyfed. It became operational in his hands in December 2006. On 7 February 2007 EB applied through solicitors for leave to remain in the UK on the basis of the Ankara Agreement and HC 510.[2]On 24 August 2007 the Home Secretary rejected his application on the grounds that she was not satisfied that he was genuinely the owner of the business by virtue of a tangible and substantial investment or that he had produced evidence to show his ability to establish himself in the business. EB appealed. His appeal came before an Immigration Judge who allowed the appeal, holding that there was ample evidence that EB was running the business. That appeal was heard on 8 October 2007. The Immigration Judge’s determination was prepared on 12 October and promulgated on 26 October. The Home Secretary applied for reconsideration on the ground that the Immigration Judge had not taken into account all the requirements of HC 510, in particular the requirement in paragraph 21 that, in the case of an applicant joining an established business, audited accounts should be produced to show its financial position. On 8 November 2007 a Senior Immigration Judge ordered reconsideration on the ground that it was arguable that the Immigration Judge had not taken proper account of all the requirements of paragraph 21 of HC 510. The matter came on for reconsideration before a different Senior Immigration Judge on 15 February 2008 and it is his determination which is the subject of the present appeal.[3]At the outset the Home Secretary’s Presenting Officer raised a fresh point of law. This was based on the decision of this court in LF (Turkey) v SSHD [2007] EWCA Civ 1441. That was also a case in which the applicant relied on the Ankara Agreement and upon a business which had been established by him in breach of the conditions which attached to his entry admission. After a review of the relevant domestic and European jurisprudence, Laws LJ, with the concurrence of the other members of the court, held that LF did not have a right to remain in the UK based on a business which he had begun in breach of his conditions of entry. To hold otherwise would be to allow the applicant to benefit from his own wrong-doing and would fall foul of a principle of community law referred to by Laws LJ as “the abuse of rights principle”. It is apparent from the report in LF that the point on which the decision went in the Home Secretary’s favour had been taken by her in a decision letter dated 19 February 2007 giving reasons for refusing LF's application. That was six months before the Home Secretary’s decision letter in the present case, in which she did not take the point. The decision in LF was given on 18 October 2007 -- that is after the Immigration Judge in the present case had heard argument and prepared his decision but before it was promulgated.[4]The decision in LF was not a radical departure from previous authority. On the contrary, it followed an earlier decision of Collins J dated 13 October 2006 in the case of Kanan Temiz v SSHD [2006] EWHC 2450 (Admin), which was itself based on jurisprudence going back to the decision of the European Court of Justice in Kondova [2001] ECR 1-06427. When Mr Mauka, who appeared for EB before the Senior Immigration Judge as he has appeared in this court, found himself confronted with this point on the morning of the hearing, he applied for the matter to be adjourned so that he could properly consider the point. The Senior Immigration Judge refused his request but granted him 30 minutes. In his determination, promulgated on 22 February 2008, the Senior Immigration Judge held that the reason that LF had failed must apply equally in the case of EB. He went on to consider the original ground on which reconsideration had been ordered and found that there was nothing in it. Rather surprisingly, in the light of his earlier ruling that the principle in LF must apply equally to EB, the Senior Immigration Judge concluded his determination with the sentence:
“On the basis of the evidence before me, I consider that the appellant currently meets the requirements of para 21 of HC 510 and that accordingly his appeal against the decision to refuse his vary leave [sic] to remain should be allowed.”
[5]Understandably nonplussed by the apparent internal inconsistency in the determination, the Home Secretary applied for leave to appeal against it. The application for leave came before the same Senior Immigration Judge and he granted it. In doing so, he acknowledged that in the final sentence he had simply overlooked his earlier reasoning. He added:
“On the basis of that reasoning the only conclusion I could properly have reached when considering what decision to substitute for that of the Immigration Judge was to dismiss the appeal. My reasons for allowing the appeal wholly overlooked the point.”
[6]There is also now before us a respondent’s notice which contends that the Senior Immigration Judge was wrong to entertain the LF point. It is stated correctly that the Home Secretary had not raised this point as a ground of refusal at the time when she considered EB’s application, nor had she raised it before the Immigration Judge, nor at any time until the morning of the reconsideration hearing before the Senior Immigration Judge. It is submitted that the Senior Immigration Judge ought not to have allowed the point to be raised at that stage because the Home Secretary was in breach of rule 32(2) of the Asylum and Immigration Tribunal Procedural Rules 2005 (as amended). In relation to that point I say at once that I agree with the submission made by Ms Olley on behalf of the Home Secretary that that rule has nothing to do with this point. It was additionally submitted by EB that he had incurred considerable expenditure in meeting the Home Secretary’s criticisms about the evidence provided by him to show the genuineness of his business. This included the cost of a number of visits from his home in South Wales to London to deal with his solicitors, who are specialists in this branch of the law and for whose services he is paying.[7]It was submitted that Mr Mauka had not consented to the point being raised. It was also submitted that the decision in LF was in any event distinguishable; but that even if it was not, it would be a breach of EB’s article 8 rights to return him now to Turkey in the light of the entire history of the case and the extent to which he was now established in this country.[8]The first issue before us is that which arises on the respondent’s notice. That is, whether the Senior Immigration Judge was wrong to allow the matter to be raised when it was. The process for dealing with appeals under Section 82 of the Nationality Immigration and Asylum Act 2002 is now laid down in the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and the rules made under it. The process was considered by this court in the well known case of DK (Serbia) v SSHD [2006] EWCA Civ 1747. The IAT, on reconsideration of an earlier decision of the tribunal, can only make a fresh determination if first satisfied that the original tribunal made a material error of law: Section 103A of the 2002 Act and rule 31 of the 2005 Rules.[9]The issues considered on reconsideration should be restricted to those on which reconsideration was ordered, or any alleged error of law based on an obvious or manifest point of convention jurisprudence. In my judgment, the Senior Immigration Judge was wrong to allow the LF point to be raised when he did. I can state my reason for that conclusion shortly. I do not see how it could be said that the Immigration Judge had committed a material error of law in not dismissing EB’s appeal by reason of a point which formed no part of the Home Secretary’s reasons for her decision letters; was never put before him by the Home Secretary and which, in any event, was not bound to be taken by her. The Home Secretary could, if so minded, have advanced EB’s breach of his terms of student leave as a reason for his application for a variation, but she was not obliged to do so. It was a matter for her discretion. It was said by counsel for the Home Secretary in argument that although she has a discretion whether to take the point or not, it would be unusual for her not to do so. That may be so, but the fact remains that, for whatever reason, she had not done so in this case. I say “for whatever reason” because I note that there was no information before the Immigration Judge whether the Home Secretary’s omission to take the point was a conscious exercise of discretion or not.[10]The point was made by Ms Olley that, according to the Senior Immigration Judge’s determination, Mr Mauka did not object to the point being taken before him. As already noted, it is common ground that when confronted with the new point he asked for the matter to be adjourned to another day and was given half an hour. This court is well aware of the great pressure on Immigration Judges and Senior Immigration Judges and on the shadow of statistics about efficiency and adjournment rates under which they operate. Efficiency in this part of public law is important, and I am entirely sympathetic with the Senior Immigration Judge’s determination that the reconsideration should be dealt with on that day. If one party seeks to raise, at a very late stage, a point which the other party, taken by surprise, properly needs time to consider in order to marshal an effective argument and so assist the tribunal in the best way that he is able, that, of itself, would be a very good reason for refusing to allow the point to be raised. In this case I do not find it surprising that Mr Mauka was perhaps not able at short notice to marshal his arguments in the way that he might have done if proper notice had been given, and therefore to assist the court in regard to the different procedural circumstances in which the point had been raised in LF from the circumstances which obtained in the present case.[11]However, that does not have anything to do with the question whether the Immigration Judge could, in truth, properly be said to have made a material error of law. In my judgment he could not, and on that basis I would hold that the Home Secretary should not have been allowed to raise the point. We are not concerned with what would have been the position if the Home Secretary had sought to raise the LF point before the Immigration Judge without it having featured in her original decision letter or in any subsequent letter in the nature of a decision letter. I would add only this: Section 86(3) of the Nationality Immigration and Asylum Act 2002 states under the heading of Determination of Appeal:
“(3) The [tribunal] must allow the appeal in so far as he thinks that -- (a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or (b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently”
[12]The Home Secretary appeared at one stage during the argument to advance a proposition to the effect that, in a case where the reasons given for a decision were bad by way of a corollary to Section 86(3)(b), the tribunal shall dismiss an appeal if the Home Secretary could have reached the same decision for reasons which had nothing to do with her actual reasons. Or, in other words, that, in the area of a discretionary decision, the reasons given for the decision do not ultimately matter because any other matters can be advanced by way of submission, which might have supported the decision actually made whether or not they formed any part of the decision maker’s decision-making process at the time of the decision or on later further consideration. The argument was not couched in those terms, or expressly by reference to Section 86, but I remind myself of the terms of Section 86 because they are part of the statutory framework which governs the way in which a tribunal must approach such matters. I express serious doubt whether the proposition advanced to us -- if I have correctly understood it -- is right, but I need say no more in the present case for, as I have indicated, we are concerned with a point of law which was not raised before the Immigration Judge whose decision the Senior Immigration Judge was having to review in order to decide whether it contained a material error of law.[13]I return finally to the application for leave to appeal out of time. The grant of leave to appeal by the Senior Immigration Judge was made on 3 April 2008. Under the rules, the time for lodging a notice of appeal was 14 days from that date. The Home Secretary was not aware of the grant of leave until some date towards the end of April 2008, and clearly she cannot be criticised for not acting before she knew about the Senior Immigration Judge’s decision. The Home Secretary received formal notice of the decision on 21 May 2008. The notice of appeal was lodged on 13 June -- that is 23 days later. It is said that the delay until lodgement on 13 June was because the Home Secretary had been considering whether it was worth appealing. She had had a very long time in which to do so, in reality ever since the decision of the Senior Immigration Judge. Businesses and other people are well used to having to make speedy decisions on whether to appeal often in much more complex cases than this, and what is expected of other litigants should be expected of Government departments. I would refuse permission to appeal out of time, both because insufficient reason has been shown for the delay and because I do not consider that the appeal itself merits it.[14]I agree.[15]I also agree.

Order

Application refused