MS (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 50

Case No C5/2013/0774[2014] EWCA Civ 50
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Venue Royal Courts of JusticeDate Thursday, 16 January 2014
Strand
London, W C2A 2LL
B E F O R E:
LORD JUSTICE ELIAS
LORD JUSTICE LEWISON
LORD JUSTICE FLOYD
Between
MS (UGANDA)Appellant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Michael Biggs (instructed by Migrants Resource Centre) appeared for AppellantMr Matthew Gullick (instructed by the Treasury Solicitor) Appeared for Respondent
J U D G M E N T

LORD JUSTICE ELIAS:

This

[1]appeal raises a short point on the proper interpretation of section 83 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). The relevant facts can shortly be stated. The appellant is a citizen of Uganda. On 27 September 2010 he was granted limited leave to remain in the UK as a student until 30 April 2012. Before that time had expired, he applied for a variation of his leave to remain on the grounds that he should be accepted as a refugee. The basis of that claim was that his brother was suspected of being involved in terrorist activities directed against the Ugandan Government, and he claimed that by reason of his relationship and the suspicion that he might be involved with his brother, he faced a real risk of persecution if he were to be returned. On 7 February 2012 the Secretary of State rejected the claim and refused to vary the limited leave to remain but he did not curtail it.[2]The appellant appealed to the First-tier Tribunal and Judge O'Keeffe dismissed the appeal after a detailed analysis of the facts and the relevant law. There was a further appeal to the Upper Tribunal before Upper Tribunal Judge Clive Lane. He did not engage with the merits of the appeal because he concluded that the FTT had no jurisdiction to hear the case in the first place and hence there was no lawful decision to appeal. He formally set aside the determination of the FTT.[3]The judge's analysis was as follows: in order to be able to appeal to the FTT, the relevant decision under appeal must be an immigration decision as defined by section 82(2) of the 2002 Act. The relevant paragraph under which the parties and the FTT appear to have assumed that the FTT had jurisdiction was paragraph (d). This provides that an immigration decision arises where the relevant decision is a:
"refusal to vary a 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."
Upper Tribunal Judge Clive Lane accepted the submission from the Secretary of State, raised for the first time on appeal, that the condition was not satisfied since the appellant did indeed have the right to remain notwithstanding the refusal to vary his limited leave.[4]The appellant's representative accepted that the terms of section 82(2)(d) were not satisfied, but he sought to persuade the judge that the FTT did in fact have the duty to hear the appeal on the grounds that the relevant decision fell within the scope of section 83 of the 2002 Act. This is as follows:
"Appeal: asylum claim (1) This section applies where a person has made an asylum claim and — (a) his claim has been rejected by the Secretary of State, but (b) 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). (2) The person may appeal to the Tribunal against the rejection of his asylum claim."
[5]It is pertinent to note that at the date of refusal of asylum, the applicant still had the right to remain in the UK for a few months but not for a year. However, the limited leave to remain had been granted before the refusal and not with knowledge of it.[6]On these facts, the judge concluded that the conditions of section 83 were not satisfied. He summarised his reasons as follows:
"7. I reject Mr Waheed's submission. On a proper construction of Section 83, I find that the circumstances of this appellant are excluded. I say that for the following reasons. I hold that Section 83(1) sets out a sequence of events which must occur in a particular order before a right of appeal against the rejection of an asylum claim can arise. I say that because of the inclusion of the conjunctive 'and' at the end of the first line of section 83(1) and the conjunctive 'but' between Section 83(1)(a) and (b). The grant of leave must be made at the same time as or after the refusal of the claim for asylum and as a consequence of the applicant having claimed asylum; if that is not the case, then the use of those conjunctives is superfluous. The Section applies to applicants whose claims for asylum have been rejected by the Secretary of State, but who have been granted a limited period of leave to remain, rather than refugee status. That outcome may occur in a number of different circumstances but the most common is, perhaps, where an applicant who is under the age of 18 years seeks asylum and, although his asylum claim itself is rejected on its merits, the Secretary of State grants leave to remain until the applicant is aged 18 years old. The purpose of Section 83 is that such an applicant should not be deprived of the right to challenge the refusal of his asylum claim where that refusal is not accompanied by a decision to remove him. 8. The sequence of events anticipated by Section 83 has not occurred in the case of the present appellant. His asylum claim (and its rejection) postdate the grant of leave which was made to the appellant at a time when the Secretary of State had no idea that he would seek to claim asylum or wish to remain in the United Kingdom beyond the period of his student visa. I hold that Section 83 of the 2002 Act does not apply in the circumstances of this appellant. I further hold that there has been no immigration decision (as defined by Section 82) in this appeal such that the appellant had any right of appeal to the First-tier Tribunal. Consequently, the determination of the First-tier Tribunal is a nullity; the Tribunal had no jurisdiction to hear the appeal. The decision by the Secretary of State in the present appeal not to curtail the appellant's existing leave to remain has left him without a right of appeal but, should he not return voluntarily to Uganda and a decision is taken to remove him, he may, if he wishes, then appeal to the First-tier Tribunal on asylum grounds."
[7]There are two elements to this conclusion: first, the sequence of events must be such that a grant of leave must be either contemporaneous with, or else be subsequent to, the refusal of the asylum claim; and second, it must be as a consequence of that claim. The grounds of appeal[8]The appellant now appeals to this court by leave of Laws LJ. There are two grounds of appeal. The first is that the judge was wrong about section 83: properly analysed it did confer jurisdiction. The second is that in any event it was too late for the Secretary of State to take the jurisdictional point for the first time on appeal.[9]I can deal with the second issue very briefly. Mr Biggs, counsel for the appellant, submits that there is always a discretion whether to allow the jurisdiction point to be taken - a matter which the judge did not recognise - and there was an element of unfairness in the Secretary of State relying on the point for the first time on appeal. In my judgment, this argument is wrong in principle and is in any event now unsustainable as a result of a binding decision of this court, decided after Laws LJ had given leave, in Virk v Secretary of State for the Home Department [2013] EWCA Civ 652. In that case, an identical argument to that addressed here was rejected by Patten LJ in a judgment with which Leveson and Briggs LJJ agreed. That case too involved the FTT determining an appeal under section 82 when in fact it had no jurisdiction to do so. In that case, the jurisdictional point was taken by the appeal judge rather than the Secretary of State, and although Mr Biggs sought to assert that this was a material distinction, in my view nothing turns on it. Patten LJ concluded that the judge was entitled to take the point notwithstanding that it had not been raised below. After referring to the earlier Court of Appeal judgment in R (on the application of Nirula) v First-tier Tribunal (Asylum & Immigration Chamber) [2012] EWCA Civ 1436, in which the court had held that a First-tier Tribunal can take a jurisdictional point of its own motion, the judge continued (para 23): " This decision is consistent with the fact that the FTT is a creation of statute whose jurisdiction in this case is limited by the terms of s.82 of the 2002 Act. The same goes for the UT. 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. Although, as Longmore LJ pointed out, decisions taken without jurisdiction may in due course become irreversible, that point has not been reached in this case. It was, in my judgment, open to either the FTT or the UT to take the point about jurisdiction notwithstanding the failure of the Secretary of State to raise it herself.”[10]In my view that analysis is decisive of this ground of appeal. Of course there may be circumstances where it is too late to take a jurisdictional point on appeal, such as where it involves findings of fact not determined by the court of first instance, but that is not this case.[11]I turn to the first ground, namely that contrary to the construction adopted by the judge section 83 did indeed confer jurisdiction on the FTT to hear the appeal. This requires an analysis of the language of the section and a consideration of a number of authorities which were not considered by the judge below. However, before considering the relevant submissions I will make some observations about the place of section 83 in the context of the appeals provisions in the 2002 Act. The context[12]Part 5 of the 2002 Act makes provision for statutory appeals against decisions of the Secretary of State on immigration and asylum cases. The right to appeal is limited to decisions which fall within sections 82, 83 and 83A. The most significant provision in practice is section 82, which confers a right of appeal against an immigration decision as defined in section 82(1). It is to be noted that the definition does not include as a relevant immigration decision a right to appeal against a refusal to grant asylum as such. In substance, the effect of section 82 is to allow anyone already in the UK to appeal against any decision to refuse or terminate leave to enter or remain in the UK or to initiate the removal or deportation process.[13]An appeal under section 82 may be brought on a variety of grounds, including human rights grounds and that the removal would be a breach of the UK's obligations under the Refugee Convention. Accordingly, the applicant will be able to assert in the context of those appeals that he should be granted asylum. By contrast, section 83 is concerned only with the rejection of an asylum claim, which, as I have said, is not an immigration decision within the meaning of section 82. Moreover, the grounds of challenge are limited to a claim that the removal from the UK would breach obligations under the Refugee Convention: see section 84(3). This has been extended, relying on the EU principle of equivalence, to include a claim that the removal would breach the right to subsidiary protection pursuant to the EU Directive 2004/83/EC: see the decision of the Court of Appeal in FA (Iraq) v Secretary of State for the Home Department [2010] EWCA Civ 696. In substance, therefore, it is a single issue asylum appeal.[14]There are three differences to note between the two provisions. First, the Secretary of State may certify a claim as clearly unfounded under section 94, and where she does this it precludes any in-country right of appeal. This does not apply to an asylum rejection under section 83. Second, section 96 allows the Secretary of State to prevent repetitious appeals if the grounds advanced ought to have been made in response to an earlier decision. Again, this power can only be exercised with respect to section 82 appeals and does not apply to section 83 appeals. Third, by section 78, where an appeal is lodged under section 82, the appellant may not be removed until it is determined. That benefit does not extend to appeals under section 83.[15]Section 83A is similar to section 83. It too is concerned with appeals relating to asylum status but in circumstances where that status has been provisionally conferred and then later removed. It was inserted into the 2002 Act by the Immigration, Asylum and Nationality Act 2006. It is as follows:
"(1) This section applies where— (a) a person has made an asylum claim (b) he was granted limited leave to enter or remain in the United Kingdom as a refugee within the meaning of the Refugee Convention (c) a decision is made that he is not a refugee, and (d) following the decision specified in paragraph (c) he has limited leave to enter or remain in the United Kingdom otherwise than as a refugee."
[16]I note two features of this provision. First, subsection (d) shows that the grant of limited leave to remain or enter must post-date the decision not to confer refugee status. Second, there is no minimum 12-month period specifically mentioned. Presumably any leave granted after the provision or removal of refugee status is, at least in the typical case, unlikely to be shorter than this.[17]In my view it is pertinent to consider why section 83 imposes the one-year minimum period. A suggested explanation was given by Longmore LJ in FA at paragraph 13. He said that it was:
"... presumably to ensure that cases which the Secretary of State is, in any event, going to reconsider in the near future do not have a right to appeal which may be on-going at the same time as the Secretary of State is reconsidering the position."
Pill LJ made an observation to similar effect: see paragraph 30. The authorities[18]I turn briefly to consider the relevant authorities. In R (on the application of Omondi) (Kenya) v Secretary of State for the Home Department [2009] EWHC 827 (Admin), Mr Ockleton, now Deputy President of the Upper Tribunal, then sitting as a deputy High Court judge, had to consider whether section 83 applied in the following circumstances. The applicant had been granted leave to enter as a student for three years. He remained as an overstayer after that leave had expired. When he was arrested as an overstayer, he claimed asylum. This was rejected, and in addition the Secretary of State issued a certificate under section 94, thereby denying the claimant an in-country appeal which would otherwise have been available to him under section82. The question was whether he had a right of appeal under section83. If he did, this was unaffected by the certificate. The judge held that he did not, even though, at least arguably on a literal reading of the section, he appeared to satisfy its terms. The judge said that it would be:
"... entirely illogical that a person who had made an unfounded asylum claim should have an in country right of appeal arising solely from ... the 'irrelevant happenstance' of whether he had had an unrelated grant of leave in the past" (paragraph 19). The judge considered that this conclusion was also supported by the fact that there was no rational basis for conferring the right of appeal simply because the applicant had been granted leave in the past. In addition, this analysis made sense of the exclusion of section 83 from section 78. There is no need to prevent removal pending appeal because the applicant has a right to remain in the UK in any event. He then summarised his conclusion at paragraph 21 as follows: "
My conclusion is that the right of appeal under s.83 arises only in circumstances where the appellant has made an asylum claim which has been refused, and has been granted periods of leave exceeding one year in aggregate since the decision to refuse asylum. The claimant has no right of appeal under s.83, because his period of leave long pre-dates his asylum claim."[19]This decision was considered by Beatson J, as he then was, in R (on the application of(1) S,(2) D,(3) W) v First-tier Tribunal and Secretary of State for the Home Department [2011] EWHC 627 (Admin). There were similar facts in the three appeals which were summarised by Beatson J in paragraph 3 of the decision as follows:
"All three cases, however, have a number of common features. The first is that an application for asylum was rejected and, at the same time, either no leave to remain or less than a year's leave to remain was granted. Secondly, at a later stage further representations were submitted and it was asserted that a fresh asylum claim arose. Thirdly, after the submission of the further representations, the Secretary of State granted indefinite leave to the claimants to remain outside the Rules, but made no decision on the applications asserting the fresh asylum claim and stated that unless told otherwise within 14 days would treat them as withdrawn."
[20]The question was whether the grant of indefinite leave to remain triggered the right to appeal under section 83 notwithstanding that it was unconnected with the refusal to grant asylum. The judge held that it did indeed trigger that right and that no such connection was required. He noted (see paragraph 62) that the relevant procedural rules appeared to have been premised on that assumption. Beatson J also commented that it was not surprising that Omondi had been decided in the way it had since the applicant in that case was attempting to circumvent the certification process in section 94.[21]The decision of Beatson J went to an appeal in Secretary of State for the Home Department v AS (Somalia) [2011] EWCA Civ 1319. Sullivan LJ, in a judgment with which Davis and Maurice Kay LJJ agreed, held the Secretary of State had rightly conceded (contrary to the analysis of Upper Tribunal Judge Clive Lane in this case) that there need be no nexus between the rejection of the asylum claim and the grant of leave referred to in section 83(1)(b). Moreover, Sullivan LJ accepted that the right to appeal under section 83 would still be available to someone who had previously exercised a right of appeal under section 82 notwithstanding that in essence a second appeal would raise the same issues as the first. He observed that the right of appeal against refusal to confer asylum status was of very great significance and that it would not be right to read words into section 83 cutting back on its apparent scope, for two reasons. First, Parliament should make explicit any qualification of the right to appeal on such an important determination; and second, the court should be slow to read words into what is a detailed self-contained statutory code (see paragraphs 31 and 32). The court did not directly address the issue in this case where leave is granted before the refusal of asylum but extends beyond it. This decision, as the Secretary of State accepts, undermines that part of the judge's reasoning below where he held that the subsequent grant of leave must be a consequence of the refusal to grant asylum. But it does not directly deal with the sequence of events basis for upholding his decision.[22]Finally, there is a decision of the Upper Tribunal in Win v Secretary of State for the Home Department [2012] UKUT 00365 (IAC), which was before the Vice President of the Tribunal Mr Ockleton and Upper Tribunal Judge Reeds. The facts were very similar to those in this case. The applicant validly entered as a student with limited leave to remain and claimed asylum whilst lawfully in the UK. The claim was refused but the existing leave was not curtailed; there were still some six months of the leave given as a student which remained. The case therefore differs from Omondi in that at the time of refusal the applicant was lawfully in the country. The question was whether there was a right of appeal under section 83. The Upper Tribunal concluded that there was no such right after carefully analysing the authorities to which I have referred. The Vice President identified a number of reasons for so concluding, including the following: first, section 78 provides no security against removal for a person who appeals under section 83. However, as I have indicated, it is entirely logical that this should not be required if the applicant is entitled to remain in the country in any event. That would not, in my judgment, of itself require that the leave should have been granted after the refusal of asylum, but it would require that there should at least be the right to remain for 12 months at the time of refusal. Second, the court relied upon what had been said in Omondi to the effect that it would be arbitrary and unprincipled to allow an unconnected previous grant of leave to determine whether or not there is a right of appeal. Discussion[23]The critical question is whether the grant of leave entitling the claimant to remain in the UK for a period exceeding one year in aggregate must occur after the refusal of asylum as Win suggests, or can predate it. The appellant submits that the language is sufficiently clear to support the contention that the leave can predate the asylum refusal. The section does not in terms require the grant of leave to occur after the refusal of asylum, and applying the principles enunciated by Sullivan LJ in AS, and for the reasons he gave, a liberal construction in favour of the appellant should be adopted.[24]Mr Biggs also submitted, relying on the decision of Lord Phillips MR in Saad v Secretary of State for the Home Department [2001] EWCA Civ 2008 at paragraphs 15- 16, that the legislation should be construed so far as possible so as to ensure that the United Kingdom complied with its international obligations under the Convention; and this include an obligation to ensure procedures which would enable a proper determination whether someone has refugee status. Mr Biggs gave an example of a case where, on the Secretary of State's analysis, it may be said that that objective is not achieved. This is where indefinite leave to remain was granted before a refusal of an asylum claim. On the Secretary of State's analysis, there is then no right to appeal against that refusal at any stage.[25]The answer to the latter point is that there is nonetheless the right to challenge the decision by way of judicial review. This court has recently held in TN (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 1609 that the right to challenge a refusal to grant asylum in that way is compatible with the UK's international obligations: see the observations of the Vice President, Maurice Kay LJ, in paragraphs 16 and 17 and of Beatson LJ in paragraph 32. Accordingly, that submission does not in my view assist the applicant.[26]I do not accept that the language supports the appellant, and in particular I do not think he gives any weight to the word "but" at the end of subsection 1(a). I accept, however, that the issue is not entirely straightforward and there are potential anomalies whichever approach to the question of construction is adopted. But in my view the better interpretation of the section requires that the grant of leave to remain referred to in section 83(1)(b) must post-date the refusal of leave. I say this for the following reasons.[27]The conclusion in Omondi is to some extent supported by a consideration of the purpose of the provision suggested by Longmore and Pill LJJ in FA. On the assumption that the intention is to avoid duplication of appeal procedures, the logic would appear to be that there should at least be a right to remain for a year from the date of refusal of asylum. If, for example, there are only a few days of leave remaining, there would be a duplication and the objective would not be achieved. This latter reason would not, however, require that the leave to remain should necessarily and in all cases post-date the asylum refusal provided there was at least the right to remain here for a year at the time when the asylum application was refused. But even if that is all that section 83 envisages, and the leave need not always post-date the refusal, nonetheless the claim in this case would be defeated since that condition was not met.[28]However, there are other features which in my view support the contention that permission must indeed post-date the refusal. First, I agree with the observation of the judge in Omondi that it would make no sense if the mere historic fact that there had at some stage been an entitlement to remain for more than a year could trigger the application of the section. A literal interpretation of the section would arguably lead to that conclusion, particularly if the word "but" at the end of subsection (a) were to be read as "and". This suggests that some weight must indeed be given to the word "but". By contrast, there is a logic in the principle that the right to appeal only arises where the Secretary of State has granted leave in the knowledge that the person has unsuccessfully claimed to be a refugee.[29]Second, the use of the word "but" rather than "and" in section 83 more naturally suggests that the applicant has been granted leave to enter notwithstanding that his asylum claim was unsuccessful and with knowledge of that fact. Third, as I have pointed out, section 83A clearly requires the grant of leave to have been made after the removal of the asylum status. I see no logical reason why someone whose provisional status as a refugee has been removed should be treated differently to someone who has never been given that status and whose application is refused. Since section 83A plainly envisages that the grant of leave must post-date the asylum refusal, in my view section 83 should do so also.[30]I recognise, as Mr Biggs argued, that the difference between the two provisions can be said to support an analysis that they were not intended to provide equivalent rules, but I think that the better view is that section 83A, incorporated into the Act by the 2006 Act, was clarifying in the context of that section what Parliament understood section 83 to be achieving.[31]Finally, the explanatory notes to the Act lend some support to this analysis, and whilst they cannot be taken into account in the detailed interpretation of the Act, they can be taken into consideration when considering its context and purpose. They say this:
"The purpose of this provision is to provide a specific single-issue asylum appeal."
This is consistent with the purpose being to avoid the proliferation of appeals. But this, I accept, is something of a makeweight argument.[32]In my opinion, therefore, although the analysis of the Upper Tribunal judge in this case was defective in so far as he considered that the limited leave had to be made as a consequence of the refusal to remain,nonetheless it is necessary that the limited leave should post-date the refusal of asylum. It did not do so in this case. It follows that there was no right of appeal at all and hence no valid decision which could be appealed to the Upper Tribunal, as Upper Tribunal Judge Clive Lane held. So, in my judgment, the appeal to this court must be dismissed.

LORD JUSTICE LEWISON: I agree.

LORD JUSTICE FLOYD: I also agree.

Cited in 2 later judgments