JUDGMENT
Patel and others (Appellants) v Secretary of State
for the Home Department (Respondent)
Anwar (Appellant) v Secretary of State for the
Home Department (Respondent)
Alam (Appellant) v Secretary of State for the Home
Department (Respondent)
before
Lord Mance
Lord Kerr
Lord Reed
Lord Carnwath
Lord Hughes
JUDGMENT GIVEN ON
20 November 2013
Heard on 3 and 4 July 2013
Appellants (Patel and
others)
Zane Malik
(Instructed by Malik Law
Chambers Solicitors)
Appellant (Anwar)
Zane Malik
Shahadoth Karim
(Instructed by Malik Law
Chambers Solicitors)
Appellant (Alam)
Zane Malik
Shahadoth Karim
(Instructed by Kalam
Solicitors)
Respondent
Jonathan Swift QC
David Blundell
(Instructed by Treasury
Solicitors)
LORD CARNWATH (with whom Lord Kerr, Lord Reed and Lord Hughes
agree)
1. These appeals raise issues as to the respective duties of the Secretary of
State and the First-tier Tribunal, on an appeal against refusal of an application to
vary leave to enter or remain under the Immigration Act 1971, more particularly as
to the operation of the so-called “one-stop” procedures. The Master of the Rolls
(para 40), echoing words of Jackson LJ, described the law in this field as “an
impenetrable jungle of intertwined statutory provisions and judicial decisions”. It
is difficult to disagree, although on this occasion the judiciary must share some of
the blame.
Facts
The Patels
2. Mr Patel and his wife arrived from India in the United Kingdom on 24
March 2009. He had been granted leave to enter as a working holiday-maker until
6 March 2011, and she as his dependent wife. Their only child was born here in
2010. On 26 February 2011, they applied for further leave to remain in the UK,
relying on article 8 of the European Convention on Human Rights, and rule 395C
of the Immigration Rules. Their application was refused by the Secretary of State
on 30 March 2011. That refusal was neither combined with, nor followed by, a
decision to remove the family from the United Kingdom. They had a right of
appeal to the First-tier Tribunal, but that was dismissed on 14 July 2011. The
merits of the refusal on the issues there raised are no longer in dispute.
3. On further appeal to the Upper Tribunal they took a new point. This was
that, in the light of the decision of the Court of Appeal in R (Mirza) v Secretary of
State for the Home Department [2011] EWCA Civ 159, [2011] Imm AR 484,
followed in Sapkota v Secretary of State for the Home Department [2011] EWCA
Civ 1320, [2012] Imm AR 254, the Secretary of State’s failure to make a removal
decision at the same time as, or shortly after, the decision to refuse leave to remain
was unlawful. This argument, which failed before the Upper Tribunal and the
Court of Appeal, is the principal issue in this court.
Mr Alam
Page 2
4. Mr Alam, a citizen of Bangladesh, entered the country on 26 August 2007,
as a Tier 4 student with leave to remain until 12 April 2011. On 1 April 2011 he
applied for leave to remain to continue his studies. On 20 April 2011 the Secretary
of State refused his application on the basis that he had not produced the required
documentation. The bank statements submitted with his application were more
than a month old, and therefore did not, as required by the guidance under the
“Points-Based System”, show that he had held the necessary level of funds for “a
consecutive period ending no more than one month before the application”.
5. By the time of the hearing before the tribunal, on 10 June 2011, he had
produced the appropriate bank statements. The tribunal held that, for the purposes
of his appeal under the rules, this new material was excluded from consideration
by section 85A of the Nationality, Immigration and Asylum Act 2002 (which had
come into effect between the date of his appeal and the date of the hearing).
However, the immigration judge held that this did not prevent him taking it into
account in the appeal under article 8 of the Convention, on the basis that, since “he
clearly meets the requirements of the rules”, it was not proportionate to the aims of
immigration control to refuse his application.
6. The Upper Tribunal reversed that decision, holding that the judge had erred
in treating the new evidence as showing effective compliance with the rules for the
purpose of article 8. The tribunal accepted that the appellant having been in the
country undertaking studies for some four years had thereby formed “some sort of
protected private life” for the purposes of article 8. But no other aspect of his life
in this country was relied on. His family ties were all with his native Bangladesh,
to which he wished to return after his studies. Although the new evidence was not
directly relevant under article 8, it took account of the unusual circumstances in
which the right to prove compliance with the rules had been lost:
“… I have… considered the circumstances in which the claimant has
failed to meet the Rules: viz. that he is one of a necessarily fixed
class whose ability to prove compliance with the Rules has changed
by operation of law since he began his appeal proceedings. Those
circumstances do, to some extent, diminish the State’s interest in
removing the claimant, merely in order to maintain the integrity of
the Rules. If the claimant’s article 8 rights had been any stronger, I
might well have concluded in the circumstances that his removal in
consequence of the immigration decision would be disproportionate.
As it is, however, I consider that the balance falls to be struck in
favour of the Secretary of State.” (para 22)
Mr Anwar
Page 3
7. Mr. Anwar, a citizen of Pakistan, entered on 26 February 2010 with leave to
remain as a student until 1 April 2011. On 31 March 2011 he applied to extend his
leave as a Tier 4 student to enable him to complete his course. The application was
supported by a Confirmation of Acceptance for Studies (“CAS”), which recorded
that he had been assessed by reference to a document entitled “ACCA examination
Financial Accounting (F3)”. The F3 document itself was not included with the
application.
8. On 10 May 2011 the Secretary of State refused the application because,
contrary to the relevant guidance, it had not included a document referred to in the
CAS, and accordingly no points had been awarded for the CAS. On his appeal to
the First-tier Tribunal the appellant produced the relevant document, claiming that
it had in fact been sent with his application form. The tribunal allowed his appeal,
but their decision was set aside by the Upper Tribunal, which held that on the
balance of probabilities he had not sent the relevant document with his application.
That factual finding is not now in dispute. Although there was a reference to the
European Convention in the grounds of appeal to the First-tier tribunal, no separate
appeal on human rights grounds was pursued at the hearing before either tribunal.
9. The Court of Appeal heard the appeals of Mr Alam and Mr Anwar together,
and dismissed them both on 13 July 2012. The arguments were wide-ranging,
summarised by Sullivan LJ under eight grounds. Most are no longer in issue.
The issues
10. According to the agreed statement, the following issues are said to arise in
the appeals to this court:
Patel
i) Whether there is an obligation on the Secretary of State to issue a
decision to remove at the same time as or immediately after refusing an
individual’s application for variation of leave to remain in the United
Kingdom.
ii) Whether there is an obligation on the Secretary of State to issue a
one-stop notice under section 120 of the 2002 Act when refusing an
individual’s application for variation of leave to remain in the United
Kingdom.
Page 4
iii) Whether the Secretary of State’s refusal to vary an individual’s leave
to remain in the United Kingdom is unlawful if it is issued in isolation from
a one-stop notice or a decision to remove.
Alam/Anwar
iv) Whether the conclusion of the majority in AS (Afghanistan) v
Secretary of State for the Home Department [2009] EWCA Civ 1076,
[2011] 1 WLR 385, that an appeal to the FTT covers not only any ground
before the Secretary of State when she made the decision under appeal but
also any grounds raised in response to a one-stop notice issued under
section 120 of the 2002 Act, even if they had not been the subject of any
decision by the Secretary of State and did not relate to the decision under
appeal, is correct.
v) Whether the statements and evidence filed by Mr Alam and Mr
Anwar to the FTT amounted to “additional grounds” under section 120 of
the 2002 Act which the FTT was obliged to consider and determine,
notwithstanding the bar in section 85A of that Act.
vi) In an article 8 case, when balancing the demands of fair and firm
immigration control against the disruption to the family or private life of a
person if removed for non-compliance with the Immigration Rules, whether
the nature and degree of the non-compliance is significant or, as the Court
of Appeal has held (in Miah v Secretary of State for the Home Department
[2012] EWCA Civ 261; [2013] QB 35), irrelevant.
11. While these issues were agreed between the parties, and they conveniently
identify the main matters on which we heard submissions, it will be necessary to
consider in due course the extent to which they do properly arise for decision on
these appeals. For example, the question of an obligation to serve notices under
section 120 (issue (ii)) does not arise in any of the three cases, since such notices
were in fact served in all of them.
The statutory provisions
12. The Immigration Act 1971, and the rules made under it, constitute the
principal statutory framework for the control of immigration, and the Secretary of
State’s functions in that respect. Both the statute and the rules have been subject to
frequent amendment and addition. The issues in the present appeals turn
principally on the provisions of the Nationality, Immigration and Asylum Act 2002
Page 5
which established a new statutory code relating to appeals against immigration
decisions, including the so-called “one-stop notices” under section 120. In relation
to the Secretary of State’s powers of removal, it will be necessary also to consider
the Immigration and Asylum Act 1999 section 10, and the Immigration, Asylum
and Nationality Act 2006 section 47.
13. The starting-point is section 3 of the 1971 Act. It provides that a person
who is not a British citizen may not enter the United Kingdom except with leave
under the Act. Where leave is given for a limited period, it may be varied by
“restricting, enlarging or removing the limit on its duration” (section 3(3)).
14. Section 3C (added by the 2002 Act) is entitled “Continuation of leave
pending variation decision”. It applies where a person with limited leave applies,
before the leave expires, for a variation of the leave. Subsection (2) has the effect
that the leave is extended during any period when (a) the application for variation
is neither decided nor withdrawn, (b) an appeal under section 82(1) of the 2002
Act could be brought while the appellant is in the United Kingdom, or an appeal
brought while the appellant is within the United Kingdom is pending. By section
3C(4), a person may not make a further application for variation of his leave while
it is extended under this section, but that does not prevent a variation of the
application already made. It is common ground that such a variation may include
grounds unrelated to those in the initial application.
15. This provision needs to be understood also in the context of section 92 of
the 2002 Act. That makes clear that for most categories of immigration decision,
other than asylum or human rights claims made from within the United Kingdom
and those decisions listed in subsection (2), an appeal must be brought from
outside the country. Section 3C provides a limited exception for applications to
extend existing leave made before its expiry.
16. Section 82(1) of the 2002 Act confers a right of appeal to the tribunal in
respect of “an immigration decision”. By section 82(2) “immigration decision” is
defined as including (inter alia) a refusal to vary leave to enter or remain “if the
result of the refusal is that the person has no leave to remain” (para (d)); and a
decision that a person is to be removed by way of directions under either section
10 of the 1999 Immigration and Asylum Act or section 47 of the Immigration,
Asylum and Nationality Act 2006 (paras (g), (ha)). Section 84 enumerates the
possible grounds of appeal which include:
“(a) that the decision is not in accordance with immigration rules;
Page 6
…
(c) that the decision is unlawful under section 6 of the Human Rights
Act 1998 … as being incompatible with the appellant’s Convention
rights;
…
(e) that the decision is otherwise not in accordance with the law;
(f) that the person taking the decision should have exercised
differently a discretion conferred by immigration rules;
(g) that removal of the appellant from the United Kingdom in
consequence of the immigration decision would breach the United
Kingdom’s obligations under the Refugee Convention or would be
unlawful under section 6 of the Human Rights Act 1998 as being
incompatible with the appellant’s Convention rights.”
17. Section 85 is headed “Matters to be considered”. Its present form, along
with section 85A, is derived from amendments made by the UK Borders Act 2007,
which were brought into effect, subject to transitional provisions, on 23 May 2011.
It provides:
“(1) An appeal under section 82(1) against a decision shall be treated
by the Tribunal as including an appeal against any decision in
respect of which the appellant has a right of appeal under section
82(1).
(2) If an appellant under section 82(1) makes a statement under
section 120, the Tribunal shall consider any matter raised in the
statement which constitutes a ground of appeal of a kind listed in
section 84(1) against the decision appealed against.
(3) Subsection (2) applies to a statement made under section 120
whether the statement was made before or after the appeal was
commenced.
Page 7
(4) On an appeal under section 82(1), 83(2) or 83A(2) against a
decision the Tribunal may consider evidence about any matter which
it thinks relevant to the substance of the decision, including evidence
which concerns a matter arising after the date of the decision.
(5) But subsection (4) is subject to the exceptions in section 85A.”
18. The exceptions in section 85A include the following:
“(3) Exception 2 applies to an appeal under section 82(1) if –
(a) the appeal is against an immigration decision of a kind specified
in section 82(2)(a) or (d),
(b) the immigration decision concerned an application of a kind
identified in immigration rules as requiring to be considered under a
‘Points Based System’, and
(c) the appeal relies wholly or partly on grounds specified in section
84(1)(a), (e) or (f).
(4) Where Exception 2 applies the Tribunal may consider evidence
adduced by the appellant only if it –
(a) was submitted in support of, and at the time of making, the
application to which the immigration decision related,
(b) relates to the appeal in so far as it relies on grounds other than
those specified in subsection (3)(c),
(c) is adduced to prove that a document is genuine or valid, or
(d) is adduced in connection with the Secretary of State’s reliance on
a discretion under immigration rules, or compliance with a
requirement of immigration rules, to refuse an application on
grounds not related to the acquisition of ‘points’ under the ‘Points
Based System’.”
Page 8
19. This provision, which is relevant to the Alam and Anwar appeals, needs a
little unravelling. It is not in dispute that exception 2 applied to both appeals,
because the applications had fallen to be considered under the Points Based
System. Accordingly, (under subsection (4)(a)) the tribunal was unable to consider
the new evidence in support of the case under the rules. It could only consider it
(under subsection (4)(b)) in so far as it related to grounds other than those
specified in (3)(c), that is grounds other under section 84(1)(a), (e) or (f). Such
other grounds include the human rights grounds under section 84(1)(c) and (g).
Accordingly, consideration of the new evidence so far as relevant to such grounds,
in particular article 8 of the Convention, was not excluded.
20. Section 86 deals with the determination of the appeal. The tribunal is
required to determine any matter raised as a ground of appeal and any matter
which section 85 requires it to consider. It must allow the appeal in so far as it
thinks that “a decision against which the appeal is brought or is treated as being
brought was not in accordance with the law”. It may also allow the appeal on the
grounds that a discretion exercised in making such a decision “should have been
exercised differently” (section 86(3)(b)), but refusal to depart from the
immigration rules is not treated as the exercise of a discretion for these purposes
(section 86(6)).
One-stop notice
21. Section 120 of the 2002 Act applies to a person (a) who has made an
application to enter or remain in the UK, or (b) in respect of whom an immigration
decision “has been taken or may be taken”. By subsection (2):
“The Secretary of State or an immigration officer may by notice in
writing require the person to state:
(a) his reasons for wishing to enter or to remain in the United
Kingdom,
(b) any grounds on which he should be permitted to enter or remain
in the United Kingdom, and
(c) any grounds on which he should not be removed from or required
to leave the United Kingdom.”
Page 9
22. There is no express provision dealing with the form of the response, nor
imposing on the Secretary of State any express duty to consider it or determine the
issues raised by it. Under section 85(2) as already noted, the tribunal, hearing an
existing appeal under section 82(1), is required to consider any matter raised in the
section 120 statement if it “constitutes a ground of appeal of a kind listed in
section 84(1) against the decision appealed against”. Furthermore, by section 96,
the section 120 notice opens the way for the Secretary of State to issue a certificate
limiting the scope for subsequent appeal. Thus section 96(2) precludes an appeal
against an immigration decision (“the new decision”) in respect of a person where
–
“… the Secretary of State or an immigration officer certifies:
(a) that the person received notice under section 120… by virtue of a
decision other than the new decision,
(b) that the new decision relates to an application … which relies on
a matter that should have been, but has not been raised in a statement
made in response to that notice, and
(c) that, in the opinion of the Secretary of State or the immigration
officer, there is no satisfactory reason for that matter not having been
raised in a statement in response to that notice.”
Removal decisions
23. The Secretary of State’s powers of removal are defined by section 10 of the
1999 Act and section 47 of the 2006 Act. The former provides that a person who is
not a British citizen may be removed from the United Kingdom, in accordance
with directions given by an immigration officer, if –
“(a) having only a limited leave to enter or remain, he does not
observe a condition attached to the leave or remains beyond the time
limited by the leave;”
By subsection (9) the reasonable costs of complying with the direction must be
met by the Secretary of State.
24. Section 47 of the 2006 Act, as originally enacted, provided:
Page 10
“(1) Where a person’s leave to enter or remain in the United
Kingdom is extended by section 3C(2)(b)…, the Secretary of State
may decide that the person is to be removed from the United
Kingdom, in accordance with directions to be given by an
immigration officer if and when the leave ends.”
Again the costs of compliance must be met by the Secretary of State (section
47(4)). For completeness, I note that on 8 May 2013 (after the time relevant for the
present appeals) a new form of the section was inserted, providing for notice of a
“pre-removal decision” (which includes the decision on an application to vary
leave to remain) to be given at the same time as the removal direction under
section 47. This change was designed to deal with a practical problem arising from
Sapkota which had been highlighted by a subsequent decision of the Upper
Tribunal (upheld by the Court of Appeal). It is not directly material to the present
appeals.
The Patel appeals
25. There is no dispute now as to the merits of the refusal of leave to remain in
the Patel cases, under either the rules or the Convention. The sole issue is one of
law relating to the form in which the decision was made, more particularly its
“segregation” (the word used in some of the cases) from the decision to direct
removal. The failure to issue such a direction, it is said, was not only unlawful in
itself, but also undermined the validity of the previous decision to refuse leave to
remain. A similar issue in relation to service of a section 120 notice, although
identified in the agreed statement, does not arise on the facts of the case, since
such a notice was in fact served.
26. In support of this argument, Mr Malik relies principally on the decisions of
the Court of Appeal in the cases of Mirza [2011] Imm AR 484 and Sapkota [2012]
Imm AR 254 to which I have already referred. It was held, in summary, (in Mirza)
that a policy of separating the refusal of leave to remain from the decision to
remove was contrary to the policy and objectives of the 2002 Act “to deal
compendiously with all issues on the lawfulness of a person’s residence in the
United Kingdom”; and consequently (in Sapkota) that an unjustified deferral of the
removal decision would mean that the actual immigration decision was not in
accordance with the law. Those judgments, and the subsequent Court of Appeal
authorities, are discussed in detail in the judgment of the Master of the Rolls in the
present case.
27. Without disrespect to the judges involved in those decisions, or to Mr
Malik’s determined arguments in support of them, I do not propose to add
Page 11
materially to the voluminous discussion which this issue has already generated. It
is sufficient to say that I am in entire agreement with the reasons of the Court of
Appeal for not following them. The powers to issue removal directions under
section 10 of the 1999 Act and section 47 of the 2006 Act (like the power to issue
notices under section 120 of the 2002 Act) are just that – powers. Their statutory
purpose is as part of the armoury available to the Secretary of State for the
enforcement of immigration control. Any extra protection provided to an appellant
is incidental. Neither section can be read as imposing an obligation to make a
direction in any particular case, still less as providing any link between failure to
do so and the validity of a previous immigration decision. As Burnton LJ said in
the Court of Appeal [2013] 1 WLR 63, para 73:
“This language is clearly and unequivocally the language of
discretion, not duty, and it is simply not open to the court to interpret
it as imposing a duty. For the court to do so is to amend the
legislation, not to interpret it.”
28. The contrary argument depends to my mind on a misapplication of the socalled Padfield principle (Padfield v Minister of Agriculture, Fisheries and Food
[1968] AC 997). Under that principle, it is clear that discretionary powers
conferred by statute must not be used in such a way as “to thwart or run counter to
the policy or objects of the Act” (per Lord Reid, at p 1030C-D)). It can no doubt
be said that one of the purposes of the 2002 Act was to reduce the scope for repeat
appeals, and that, as Laws LJ observed, the legislation “leans in favour of what are
called one-stop appeals…” (JM (Liberia) v Secretary of State for the Home
Department [2006] EWCA Civ 1402; [2007] Imm AR 293, para 23). It may be
also, as Mr Malik submits, that the exercise of the Secretary of State’s powers has
the incidental effect in some cases of adding to the range of matters an appellant is
able to raise by way of appeal during the period that his leave is extended under
section 3C.
29. However, neither such general observations nor such incidental effects can
be translated into an overriding policy requiring the Secretary of State to act in a
particular way, nor into a right for the appellant to insist that he does so. It is to be
borne in mind also that exercise of the powers to direct removal, which alone are at
issue in the Patel case, is likely to involve both public cost and personal hardship
or indignity. The Secretary of State does not “thwart the policy of the Act” if she
proceeds in the first instance on the basis that unlawful overstayers should be
allowed to leave of their own volition (as on the evidence the great majority do).
The Upper Tribunal observed in the present case, commenting on its concerns at
the implications of the decision in Sapkota:
Page 12
“For every person whose real claim is one outside the Rules, there
are many who merely want a decision in accordance with the Rules
and would either voluntarily depart or make a fresh application if
that appeal were to be unsuccessful. Further, the developing
jurisprudence of the Upper Tribunal has moved beyond the
proposition that human rights only arise on removal decisions, to
cases where variation of leave applications may need to take into
account a wide variety of aspects of private life under article 8 rights,
thereby enabling an independent assessment of this claim to remain
without the person concerned running the risk of breaking the law.”
(para 32)
30. It follows that the Secretary of State was under no duty in the Patels’ case to
issue removal directions at the time of the decision to refuse leave to remain, and
that the actual decision was not invalidated by the failure to do so. In so far as the
decisions of the Court of Appeal in the cases of Mirza and Sapkota indicate the
contrary, they were in my view wrongly decided. It is unnecessary to consider
whether the Court of Appeal was entitled as a matter of precedent to depart from
them. No such inhibition affects this court.
31. I would accordingly dismiss the Patel appeals.
The Alam/Anwar appeals
32. I have set out above the agreed issues said to arise in these appeals. The
practical problem faced by the appellants arises from their failure to produce
relevant information as required under the Points Based System at the relevant
time. Each appellant was able to adduce the relevant evidence in response to the
section 120 notice, but was barred by exception 2 of section 85A from relying on it
directly in support of his appeal. The issue in short is whether an indirect route
could be found to achieve a favourable result.
33. The proposed route depends on using the evidence before the tribunal in
support of a putative appeal against the refusal of leave to remain, relying not on
the rules, but on human rights grounds (article 8 of the Convention), and thus
taking it outside the scope of exception 2. This in turn depends on two
propositions: first, that the tribunal was obliged to consider the new evidence in
that context (“scope of appeal”), and secondly, that, if it had done so, the evidence
that the rules could have been complied with would significantly improve the
human rights case under article 8 (“merits of appeal”).
Page 13
Scope of appeal
34. The first issue was the subject of detailed discussion in AS (Afghanistan) v
Secretary of State for the Home Department [2011] 1 WLR 385. The Court of
Appeal by a majority held that section 85(2) was to be construed as imposing a
duty on the tribunal to consider any potential ground of appeal raised in response
to a section 120 notice, even if it was not directly related to the issues considered
by the Secretary of State in the original decision. In AQ (Pakistan) v Secretary of
State for the Home Department [2011] EWCA Civ 833; [2011] Imm AR 832), it
was held that majority’s approach did not require consideration of events
subsequent to the Secretary of State’s decision. That issue does not arise in the
present cases, where the new evidence related to material which was available at
the time of the decisions.
35. Turning to the judgments in AS itself, it would be difficult to expand on or
improve the depth of legal and contextual analysis to be found in the judgments of
all three judges. The fact that the analysis led such experienced judges to opposite
conclusions suggests that the path to enlightenment will not be found by
attempting a similar exercise in this judgment. The problem lies in the drafting of
the relevant provisions, which defies conventional analysis. It is not only obscure
in places and lacking in detail, but contains pointers in both directions.
36. On the one hand, the words “against the decision appealed against” in
section 85(2) suggest a focus on the content of the original decision. As Arden LJ
said:
“A ground of appeal is not a ground of appeal ‘against the decision
appealed against’ if it would not, if accepted, lead to its reversal, as
opposed to its being superseded by a new decision on the new
evidence that leave to enter or remain should be granted.” (para 30)
On the other hand the first ground of appeal under section 84(1) is that the
immigration decision “is” not (not “was not”) in accordance with the Rules; and in
considering that question the tribunal is specifically empowered (subject to the
exceptions in section 85A) to have regard to evidence concerning “a matter arising
after the date of appeal”.
37. Moore-Bick LJ (with whom Sullivan LJ agreed) thought that the reference
to the “decision appealed against” did not imply a limitation to the original
grounds. Having decided that the “decisions” referred to sections 85(1) and (2)
Page 14
were “immigration decisions” of the kind identified in section 82(1), he said at
para 79:
“… the natural meaning of these provisions is to impose on the
tribunal a duty to consider matters raised by the appellant insofar as
they provide grounds for challenging a substantive decision of a kind
identified in section 82 that affects his immigration status. On the
face of it they do not restrict that duty to considering grounds that
relate to the reasons for that decision or to the original grounds of
appeal.”
38. There was a similar lack of agreement on the effect of section 85(4), and in
particular of the reference to matters relevant to “the substance” of the decision
appealed against. That seems a curiously ambiguous term, which can fairly be read
as referring either to the substantive effect of the decision or to the substantive
reasons underlying it. Arden LJ took the latter view, which she saw as supporting
her interpretation of section 85(2) (paras 31-2). At para 30 she adopted as “plainly
correct” the approach of the Asylum and Immigration Tribunal (EA (Nigeria) v
Secretary of State for the Home Department [2007] UKAIT 00013), which had
read these words as meaning that the new evidence had to be “relevant to the
decision actually made”, and had added at para 6 that:
“…a decision on a matter under the Immigration Rules is a decision
on the detailed eligibility of an individual by reference to the
particular requirements of the rule in question in the context of an
application that that person has made.”
39. Sullivan LJ took the opposite view, seeing section 85(4) as consistent with
his view that the tribunal’s consideration was not limited to the grounds considered
by the Secretary of State:
“Since section 85(2) is concerned with statements of additional
grounds which must include any reasons why an appellant should be
allowed to remain, and which are expressly not confined to the
reasons why he should be allowed to remain under rule x of the
Rules, I am not persuaded that the reference to ‘the decision
appealed against’ must be a reference to the decision to refuse to
vary leave to remain under rule x, rather than the decision to refuse
to vary leave to remain, being one of the immigration decisions as
defined by section 82 (2). Such an approach to section 85 (2) would
be consistent with the reference in section 85 (4) to ‘the substance of
the decision’.” (para 113)
Page 15
40. Moore-Bick LJ thought that section 85(4) itself had “little bearing” on the
issues before the court, since it was concerned only with the evidence which the
tribunal could consider (para 83). However, his understanding of the word
“substance” in this context, agreeing with that of Sullivan LJ, is apparent from his
earlier discussion of the appropriate response to a section 120 notice. He saw its
purpose as to impose on the appellant a duty to put forward “any grounds he may
have for challenging the substance of the decision made against him, rather than
simply the grounds on which it was made” (para 80, emphasis added).
41. The broader approach of the majority seems to me to gain some support
from the scheme of section 3C, under which (as is common ground) the initial
application for leave to remain, if made in time, can later be varied to include
wholly unrelated grounds without turning it into a new application or prejudicing
the temporary right to remain given by the section. Thus the identity of the
application depends on the substance of what is applied for, rather than on the
particular grounds or rules under which the application is initially made. The same
approach can be applied to the decision on that application, the identity or
“substance” of which in the context of an appeal is not dependent on the particular
grounds first relied on.
42. It is of interest that, at an earlier stage, the broader approach seems to have
accorded with the reading of those responsible within the Home Office for advice
to immigration officers. The Immigration Directorate’s Instructions, issued in
September 2006, noted that it was not possible under section 3C to make a second
application, but continued:
“On the other hand, it is possible to vary the grounds of an
application already made, even by introducing something completely
new. A student application can be varied so as to include marriage
grounds. If an application is varied before a decision is made, the
applicant will be required to complete the necessary prescribed form
to vary his application. If an application is varied post decision, it
would be open to the applicant to submit further grounds to be
considered at appeal… Once an application has been decided it
ceases to be an application and there is no longer any application to
vary under section 3C(5). So any new information will fall to be
dealt with during the course of the appeal rather than as a variation
of the original application.” (para 3.2 emphasis added)
43. The same approach is supported by the current edition of Macdonald’s
Immigration Law & Practice 8th ed (2010) para 19.22 (under the heading “The
tribunal as primary decision maker”). The only implicit criticism made of the
Page 16
majority approach in AS is that it did not go far enough. They observe that even
without a section 120 notice the tribunal should be free to consider any matter –
“… including a matter arising after the decision which is relevant to
the substance of the decision regardless of whether a one-stop notice
has been served. The ‘substance of the decision’ is not the decision
maker’s reasoned response to the particular application or factual
situation that was before it but is one of the immigration decisions
enumerated in section 82 and a ‘matter’ includes anything capable of
supporting a fresh application to the decision maker…”
Whether or not such an extension of the majority’s reasoning can be supported,
that passage indicates that the broader approach in itself is not controversial.
44. In the end, although the arguments are finely balanced, I prefer the
approach of the majority in AS. Like Sullivan LJ, I find a broad approach more
consistent with the “coherence” of this part of the Act. He noted that the standard
form of appeal, echoing the effect of the section 120 notice, urged appellants to
raise any additional ground at that stage, on pain of not being able to do so later,
and observed:
“… it seems to me that appellants would have good reason to
question the coherence of the statutory scheme if they were then to
be told by the AIT that it had no jurisdiction to consider the
additional ground that they had been ordered by both the Secretary
of State and the AIT to put forward.” (para 99)
Merits of appeal
45. The second issue is the materiality to the human rights case of evidence that
the appellant could in fact have complied with the rules, even though he failed to
do so. The argument is that, if it is shown that the appellant could have met the
substantive requirements of the rules, the failure to do so should be regarded as
purely formal, and that accordingly, in the proportionality balance required by
article 8, the objectives of immigration control should carry relatively less weight.
A variant of this argument, referred to as the “near-miss” principle, is that the
degree of failure to meet the requirements of the rules may be relevant in the
proportionality balance.
46. Support for such an approach is said to be found in the judgment of Sedley
LJ (agreed by Rimer and Sullivan LJJ) in Pankina v Secretary of State for the
Page 17
Home Department [2010] EWCA Civ 719; [2011] QB 376. The main issue in that
case was the extent to which it was permissible for mandatory criteria relevant to
the Points Based System to be contained in guidance rather than rules submitted to
Parliament under section 3(2) of the 1971 Act. That issue has since been
considered in the Supreme Court in R (Alvi) v Secretary of State for the Home
Department (Joint Council for the Welfare of Immigrants intervening) [2012]
UKSC 33; [2012] 1 WLR 2208 and R (New College London Ltd) v Secretary of
State for the Home Department (Migrants’ Rights Network intervening) [2013]
UKSC 51, [2013] 1 WLR 2358. However Sedley LJ also considered the
application of article 8 under such a system. He said at paras 45 – 46:
“There appears to me, in this situation, to be no escape from the
proposition that in exercising her powers, whether within or outside
the rules of practice for the time being in force, the Home Secretary
must have regard and give effect to applicants’ Convention rights.
This will mean in most cases evaluating the extent and quality of
their family and private life in the United Kingdom and the
implications, both for them and for the United Kingdom, of
truncating their careers here.
That in turn will require consideration of the significance of the
criteria by which their eligibility has been gauged and found
wanting. It is one thing to expect an applicant to have the necessary
academic and linguistic qualifications: here a miss is likely to be as
good as a mile. It is another for an applicant to fall marginally or
momentarily short of a financial criterion which in itself has no
meaning: its significance is as a rough and ready measure of the
applicant’s ability to continue to live without reliance on public
funds. Having £800 in the bank, whether for three continuous
months or simply at the date of application, is no doubt some
indication of this; but people who are able to meet the test may fall
on hard times after obtaining indefinite leave to remain, and others
who fail it would, if allowed to remain, never become a charge on
public funds. The Home Office has to exercise some common sense
about this if it is not to make decisions which disproportionately
deny respect to the private and family lives of graduates who by
definition have been settled here for some years and are otherwise
eligible for Tier 1 entry. If the Home Secretary wishes the rules to be
blackletter law, she needs to achieve this by an established
legislative route.”
47. The court can be seen in that passage to have endorsed the view that, at
least in relation to financial criteria, a near-miss (a “marginal or momentary”
shortfall) might affect the consideration of proportionality under article 8. That
Page 18
view did not affect the results in any of the cases before it. In the only one to
which it might have been relevant (Mrs Maleckia), it was held that there was in
any event no prospect of success under article 8 (para 53).
48. Mr Malik also relies on other cases, before and since, which have adopted a
similar approach without reference to Pankina. In SB (Bangladesh) v Secretary of
State for the Home Department [2007] EWCA Civ 28, the court when allowing an
appeal against the tribunal’s decision on other grounds agreed with them that the
fact that the appellant “only just failed to qualify for admission” was a fact to be
counted in her favour. Ward LJ, at para 30, adopted the observation of Collins J in
Lekstaka v Immigration Appeal Tribunal [2005] EWHC 745 (Admin) para 38 that:
“… one is entitled to see, whether in all the circumstances, this case
falls within the spirit of the Rules or the policies, even if not within
the letter.”
Ward LJ added:
“That seems to us to be the right approach. As Simon Brown L.J.
said in Ekinci at paragraph 16:
‘Even if strictly he fails to qualify so that the ECO
would be prohibited from granting leave to enter, given
the obvious article 8 dimension to the case the ECO
would refer the application to an Immigration Officer
who undoubtedly has a discretion to admit someone
outside the Rules. And if entry were to be refused at
that stage, then indeed a section 59 right of appeal
would certainly arise in which, by virtue of section
65(3), (4) and (5) the adjudicator would have
jurisdiction to consider the appellant’s human rights.’”
(I note in passing that those comments of Simon Brown LJ were made with
reference to the rather different appeal provisions of the Immigration and Asylum
Act 1999, and were directed specifically to a case with an “obvious article 8
dimension”.)
49. More recently, in R (Mansoor) v Secretary of State for the Home
Department [2011] EWHC 832 (Admin), Blake J, sitting on this occasion in the
Administrative Court, held that on the facts the interference with the applicant’s
family life was such as to make it disproportionate under article 8 to remove her,
Page 19
notwithstanding that she was unable to satisfy a relevant criterion in the rules. He
said, at para 35 (without specific reference to Pankina):
“… the terms of the immigration rules are not a legitimate aim in
their own right… A judgment needs to be made as to how significant
the aim, and how far the removal of the particular claimant in the
circumstances of her case is necessary to promote that aim. The mere
fact a genuine spouse lawfully admitted with her British citizen
husband and settled children can no longer meet one requirement of
the rules through no fault of her own is unlikely to amount to a
weighty reason to justify interference with family life here that is
otherwise to be respected.”
50. The opposite approach is supported by the judgment of Stanley Burnton LJ
(agreed by Maurice Kay and Lewison LJJ) in Miah v Secretary of State for the
Home Department [2013] QB 35. In that case the applicant was refused leave to
remain as a Tier 2 (General) Migrant at a time when he was two months short of
the five years’ continuous residence necessary to support a case for indefinite leave
to remain under the rules. It was argued that, in assessing whether his removal
should be permitted under article 8.2 of the Convention, the weight to be given to
the maintenance of immigration controls should be diminished because he had
missed satisfying the rules by only a small margin. Burnton LJ observed that, as
formulated in the skeleton submissions of Mr Malik (appearing for the appellant in
that case as in the present), the argument was not so much “near miss” as “sliding
scale”, by virtue of which –
“There is an inverse relationship between the degree to which there
is compliance with the rules and the immigration policy imperative
which demands that unsuccessful applicants be removed” (paras 9-
10).
51. In rejecting that argument, Burnton LJ referred to a passage in the speech of
Lord Bingham in Huang v Secretary of State for the Home Department [2007] 2
AC 167, in which he discussed the long-established and central role of the
immigration rules in determining those to whom leave to enter or remain should be
granted. Although the “near-miss” argument as such was not in issue in that case,
Burnton LJ thought it inconsistent with Lord Bingham’s approach. He said at para
14:
“… I find Lord Bingham’s reference in para 6 to ‘rules, to be
administratively workable, [requiring] that a line be drawn
somewhere’ and in para 16 to
Page 20
‘the general administrative desirability of applying
known rules if a system of immigration control is to be
workable, predictable, consistent and fair as between
one applicant and another; the damage to good
administration and effective control if a system is
perceived by applicants internationally to be unduly
porous, unpredictable or perfunctory’
to be helpful and generally inconsistent with a ‘near-miss’ principle.”
52. He referred to two previous Court of Appeal judgments (not cited in
Pankina) in which similar arguments had been rejected: Mongoto v Secretary of
State for the Home Department [2005] EWCA Civ 751, and R (Rudi) v Secretary
of State for the Home Department [2007] EWCA Civ 1326. In the latter case,
citing Mongoto, I said of the near-miss argument:
“28. This argument is, in my view, based on a misconception. The
Secretary of State is of course entitled to have a policy. The
promulgation of the policy normally creates a legitimate expectation
that it will be applied to those falling within its scope unless there is
good reason for making an exception. So much is trite law. It is also
trite law that the existence of the policy does not excuse the decisionmaker from due consideration of cases falling outside it. However,
the law knows no ‘near-miss’ principle. There is no presumption that
those falling just outside the policy should be treated as though they
were within it, or given special consideration for that reason.”
53. Faced with the conflict between the approach taken in these authorities and
that of Pankina Burnton LJ had “no difficulty” in preferring the former, which he
regarded as binding on the court (paras 21-25). He could see no principled basis
for distinguishing, as Sedley LJ had proposed, between rules to which the nearmiss principle did and did not apply. In particular he disagreed with Sedley LJ that
a financial criterion “has in itself no meaning”, and could therefore be
distinguished from other rules, such as those relating to academic qualifications, in
respect of which “a miss is as good as a mile”. In conclusion he said at paras 25 –
26:
“Finally, quite apart from authority, I prefer the approach stated in
Mongoto’s case… and Rudi’s case…. A rule is a rule. The
considerations to which Lord Bingham referred in Huang’s case…
require rules to be treated as such. Moreover, once an apparently
bright-line rule is regarded as subject to a near-miss penumbra, and a
Page 21
decision is made in favour of a near-miss applicant on that basis,
another applicant will appear claiming to be a near miss to that near
miss. There would be a steep slope away from predictable rules, the
efficacy and utility of which would be undermined.
For these reasons, I would dismiss the appeal in relation to the ‘nearmiss’ argument. In my judgment, there is no ‘near-miss’ principle
applicable to the Immigration Rules. The Secretary of State, and on
appeal the tribunal, must assess the strength of an article 8 claim, but
the requirements of immigration control are not weakened by the
degree of non-compliance with the Immigration Rules.”
54. The difference between the two positions may not be as stark as the
submissions before us have suggested. The most authoritative guidance on the
correct approach of the tribunal to article 8 remains that of Lord Bingham in
Huang. In the passage cited by Burnton LJ Lord Bingham observed that the rules
are designed to identify those to whom “on grounds such as kinship and family
relationship and dependence” leave to enter should be granted, and that such rules
“to be administratively workable, require that a line be drawn somewhere”. But
that was no more than the starting point for the consideration of article 8. Thus in
Mrs Huang’s own case, the most relevant rule (rule 317) was not satisfied, since
she was not, when the decision was made, aged 65 or over and she was not a
widow. He commented at para 6:
“Such a rule, which does not lack a rational basis, is not to be
stigmatised as arbitrary or objectionable. But an applicant’s failure to
qualify under the rules is for present purposes the point at which to
begin, not end, consideration of the claim under article 8. The terms
of the rules are relevant to that consideration, but they are not
determinative.”
55. Thus the balance drawn by the rules may be relevant to the consideration of
proportionality. I said much the same in Rudi. Although I rejected the concept of a
“near-miss principle”, I did not see this as inconsistent with the Collins J’s words
in Lekstaka:
“Collins J’s statement, on which the court relied [in SB], seems
unexceptionable. It is saying no more, as I read it, than that the
practical or compassionate considerations which underlie the policy
are also likely to be relevant to the cases of those who fall just
outside it, and to that extent may add weight to their argument for
exceptional treatment. He is not saying that there arises any
Page 22
presumption or expectation that the policy will be extended to
embrace them.” (para 31(ii))
(My reference to “exceptional treatment” needs to be read now in the light of
Huang para 20 in which Lord Bingham made clear that, contrary to previous Court
of Appeal case-law, there was no separate “test of exceptionality”.)
56. Although the context of the rules may be relevant to the consideration of
proportionality, I agree with Burnton LJ that this cannot be equated with a
formalised “near-miss” or “sliding scale” principle, as argued for by Mr Malik.
That approach is unsupported by Strasbourg authority, or by a proper reading of
Lord Bingham’s words. Mrs Huang’s case for favourable treatment outside the
rules did not turn on how close she had come to compliance with rule 317, but on
the application of the family values which underlie that rule and are at the heart
also of article 8. Conversely, a near-miss under the rules cannot provide substance
to a human rights case which is otherwise lacking in merit.
57. It is important to remember that article 8 is not a general dispensing power.
It is to be distinguished from the Secretary of State’s discretion to allow leave to
remain outside the rules, which may be unrelated to any protected human right.
The merits of a decision not to depart from the rules are not reviewable on appeal:
section 86(6). One may sympathise with Sedley LJ’s call in Pankina for “common
sense” in the application of the rules to graduates who have been studying in the
UK for some years (see para 47 above). However, such considerations do not by
themselves provide grounds of appeal under article 8, which is concerned with
private or family life, not education as such. The opportunity for a promising
student to complete his course in this country, however desirable in general terms,
is not in itself a right protected under article 8.
The present appeals
58. I have discussed the respective arguments on this point in some detail
because of its general importance and the conflicting statements found in some of
the judgments. However, I can deal relatively shortly with the two cases before us.
The near-miss argument was not advanced in the same form before the Court of
Appeal, apparently because it was thought to be precluded by Miah. Even if
otherwise well-founded, it is not in my view available to Mr Anwar, since no
separate human rights grounds were advanced on his behalf before either tribunal.
So the issue as to whether the tribunal would have been obliged to consider them,
and with what effect, did not arise.
Page 23
59. In Mr Alam’s case the human rights case was considered at both levels, but
ultimately failed before the Upper Tribunal on its merits. The Upper Tribunal
fairly gave some weight to the unusual circumstances in which he had lost his
ability to rely on the new evidence (as a result of a change in the rules after the
start of the appeal). But there was little or nothing to weigh on the other side of the
balance, apart from the time he had spent in this country as a student under the
rules. It would be surprising if that status, derived entirely from the rules, was
sufficient in itself to add weight to a case for favourable treatment outside the
rules. I see no error in the approach of the Upper Tribunal.
Conclusion
60. For these reasons, I would dismiss all three appeals.
LORD MANCE (with whom Lord Kerr, Lord Reed and Lord Hughes agree)
61. I would also dismiss these appeals for the reasons given by Lord Carnwath.
62. Anything that we say about AS (Afghanistan) v Secretary of State for the
Home Department [2009] EWCA Civ 1076, [2011] 1 WLR 385 is obiter, since in
the case of Anwar no separate human rights ground was advanced in either
tribunal and in the case of Alam the Upper Tribunal held correctly that there is
nothing in any human rights point that was raised.
63. If we were to disagree with the majority approach in AS, that would raise a
problem of precedent for lower courts, but since I would on balance also favour
leaving the majority view undisturbed, that problem does not arise. In fact, it
appears that the whole area of appeals is likely to be reshaped by the Immigration
Bill 2013 (HC Bill 110), so that the majority approach in AS and any view we
express about the correct approach are likely to become irrelevant in future cases.
64. The issue arising under section 85(2) of the Nationality, Immigration and
Asylum Act 2002 which was addressed in AS is undoubtedly a difficult and very
arguable one, and the arguments for and against the rival approaches are
comprehensively discussed in AS. As I see it, the essential question was well
defined by Sullivan LJ at paras 111-113. It is whether “the decision appealed
against” to which section 85(2) refers is the generic decision to refuse leave to
remain (i.e. in the present cases, within section 82(2)(d)), or the particular decision
to refuse leave under a particular head, for example under a particular rule of the
Immigration Rules or on a Human Rights ground.
Page 24
65. The majority approach in AS does not mean that section 85(2) enables an
appellant, who has sought leave to remain, to go outside the scope of a leave to
remain application by adding or substituting an appeal under a different head of
section 82(2), e.g. by asserting a wrongful refusal of entry clearance or of a
certificate of entitlement: see sections 82(2)(b) or (c)). To that extent, it seems to
me that the majority approach is not open to the criticism that it amounts to rereading section 85(2) as if it used the words “against a decision of a kind listed in
section 82(2)” or omitted the words “against the decision appealed against”
altogether.
66. Where the Secretary of State chooses to give a section 120(2) notice, the
aim is to flush out any new (a) reasons for wishing to enter or remain and/or (b)
grounds for being permitted to enter or remain and/or (c) grounds for not being
removed or required to leave the UK. The statement in response need not repeat
reasons or grounds set out in the existing application or decision which is the
occasion for giving the notice: section 120(3).
67. When section 85(2) requires the Tribunal to “consider any matter raised in
the [section 120] statement which constitutes a ground of appeal of a kind listed in
section 84(1) against the decision appealed against”, it is therefore referring to new
reasons or grounds not previously covered by the decision appealed against. So
long as they “[constitute] a ground of appeal of a kind listed in section 84(1)”, they
can be relied upon. By inference, it can be said, it is or becomes legitimate to treat
them as constituting a ground of appeal, even though they were not raised before
or decided by the Secretary of State.
68. So, instead of relying on the Immigration Rules to justify leave to remain,
an appellant can rely on a Human Rights ground, as Alam sought to do. And in AS
itself, it would follow that the majority was correct to hold that an appellant could
invoke a different Immigration Rule to justify leave to remain – in the case of AS
herself: that she qualified under the International Graduate Scheme, rather than as
a person intending to establish herself in business, in the other case of NV, on the
basis that she had ten years’ residence, rather than on the basis that she was a
student.
69. Section 3C(4) of the 1971 Act certainly provides some forceful arguments
to the contrary of the majority conclusion in AS. But I am inclined to think that
Moore-Bick and Sullivan LJJ deal sufficiently in their paras 84-86 and 102 with
the problem of reconciling their conclusion with section 3C(4). Essentially, it is up
to the Secretary of State to decide whether to serve a section 120 notice. It is true
that the majority approach to section 85(2) means that an applicant may open up
issues which would otherwise be closed, at least until conclusion of the existing
appeal (after which the applicant, if unsuccessful in the appeal, would be an
Page 25
overstayer). But it does at the same time close down some further applications
which the appellant might, whether as an overstayer or from abroad, make.
70. The fact that the Tribunal will, in a wider area, become primary decisionmaker appears to me relatively indecisive, bearing in mind that it anyway acts as
decision-maker in some significant areas. The overlap argument advanced by
Sullivan LJ at para 106 also seems to me relevant, if one is considering the
advantages and disadvantages of each solution.
71. On the other hand, I am not persuaded that there is anything in the
“substance” point based on section 85(4). Moore-Bick LJ (para 83), rather than
Sullivan LJ (para 113) was in my view right on this. Section 85(4) is dealing only
with evidence which goes to the substance (“heart”) of the decision, but does not
help identify at what level of detail that decision is to be considered.
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