Update: immigration

Appeal procedures and processes have considerable impact for practitioners and have been the subject of recent decisions. Of the four covered in this update, the first two relate to the points based system but also provide additional clarification of the section 120 'one stop warning'. The latter two cases consider jurisdiction and, from an asylum seeker's perspective, the serious limitations of onward appeals to the Court of Appeal.

Points based system appeals

AQ (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 833 revisits the vexed issue of PBS appeals, in this case involving a tier 1 (post-study work) migrant in country variation. The matter at issue was whether the points entitlement arising from a masters degree count towards the minimum if the degree is awarded after the decision of the secretary of state but before the decision of the tribunal.

The scenario in this case will be familiar to many students seeking to vary to another category: their application to vary their leave has to be submitted before the expiration of their current student leave but their current student project is expected to complete at the same date as the expiration of their leave.

AQ considered the application of AS (Afghanistan) v SSHD [2009] EWCA Civ 1076 to points based system (PBS) decisions, and held that the duty of the tribunal to consider matters raised under section 120 of the Nationality Immigration and Asylum Act 2002 is restricted to fresh grounds in connection with the particular immigration decision which is the subject of the appeal; it does not permit the making of what would in effect be a fresh application based on post-decision evidence which would have the effect of causing the tribunal to become the primary decision maker. The Court of Appeal held:

'35. '¦ a tribunal's task is to 'look back at the position as at the date of application [now decision]' as stated by the tribunal'¦ in MS (AS & NV Considered) Pakistan [2010] UKUT 117 at paragraph 49 in cases where 'the rule in question specifies a fixed historic timeline'.

'36. Section 85(2) [2002 Act]'¦ concludes by referring to the availability of grounds of appeal 'against the decision appealed against''¦the focus is on the decision of the secretary of state'¦ As Sedley LJ recognised in Pankina v Secretary of State [2010] EWCA Civ 719 at paragraph 39, there will be cases under the rules which depend on the situation existing at the time of the secretary of state's decision'¦ The points to be accumulated must be accumulated at the time of the secretary of state's decision'¦

'37. '¦ section 120 [does not have] the effect of allowing a fresh application to be made to the tribunal under the rule relying on events since the secretary of state's decision'¦

'38. '¦ no inconsistency between the intention in section 120 and an intention by which the determination by the tribunal is by reference to the decision being appealed, that is the decision of the secretary of state. Section 3C of the Immigration Act 1971 provides for continuation of leave to remain pending a variation decision on leave. It applied in the present case to extend the appellant's leave to remain until his appeal against refusal is determined (section 3C(2)). Subsection (4) provides: a person may not make an application for variation of his leave to enter or remain in the UK while that leave is extended by virtue of this section.'

QI (Pakistan) v SSHD [2011] EWCA Civ 614 also considered an issue of statutory construction in a points-based student appeal and in particular section 3C of the Immigration Act 1971. It reinforced the ruling in JH (Zimbabwe) v SSHD [2009] EWCA Civ 78 that section 3C applies 'by subsection (1) where an application for variation of an existing leave is made before that leave expires (and provided there has been no decision on that application before the leave expires).

'In that event there is, by subsection (2), a statutory extension of the original leave until (a) the application is decided or withdrawn or (b) if the application has been decided and there is a right of appeal against that decision, the time for appealing has expired, or (c) if an appeal has been brought that appeal is pending'¦ During the period of the statutory extension of the original leave by subsection (4) no further application for variation of that leave can be made. Thus there can be only one application for variation of the original leave and there can be only one decision (and, where applicable, one appeal)'.

'The possibility of a series of further applications leading to an indefinite extension of the original leave is excluded. However, by subsection (5) it is possible to vary the one permitted application. If it is varied, any decision (and any further appeal) will relate to the application as varied. But once a decision has been made, no variation to the application is possible since there is nothing left to vary.'

Rule 245ZX of the Immigration Rules provides that the student must comply with the relevant rules for leave to remain. 245ZX(1) states: 'The applicant must not be applying for leave to remain for the purpose of studies which would commence more than one month after the applicant's current entry clearance or leave to remain granted under these rules expires.'

In this case the student had leave to remain which expired on 30 May 2009 and his new course commenced on 20 July 2009. The SSHD's decision was taken on 10 August 2009 and refused the application on the basis that 'there is a gap of more than one month between the end of [his] current leave'¦ and the start of [his] new course'¦ not satisfied that [he meets] the requirements of 245ZX(1)'.

The Court of Appeal held that the requirements in section 3C(1)(a) and (b) were met when the application was submitted; the leave expired before a decision had been taken and thus 3C(c) is met; it follows from 3C(2)(a) that leave is extended until the appeal is decided. Rule 245ZX(1) does not operate to defeat the statutory construction of section 3C.

'The leave extended is not a new or different species of leave; the existing leave is extended.'

These two cases emphasise how critical it is to engage with the actual wording of the rules and/or the statute. It should also be noted that AQ does not engage with the changes brought about by the addition of section 85A of the 2002 Act, which came into force on 23 May 2011, but there will be many applications and appeals still in the system which will be affected by this decision.

Rights of appeal

Abiyat and others (Rights of appeal) Iran [2011] UKUT 00314 (IAC) considered rights of appeal to the Upper Tribunal after a decision by the First-tier Tribunal that the tribunal had no jurisdiction to hear an appeal. It also considered rights of appeal under section 83 of the 2002 Act.

At the same time as this appeal was proceeding through the tribunal, others were being pursued in the Divisional Court. That court held in R (S and others) v First Tier Tribunal (IAC) and SSHD [2011] EWHC 627 (Admin) that there is a right of appeal to the First-tier Tribunal under section 83 of the Nationality Immigration and Asylum Act 2002 against a refusal of asylum triggered by a subsequent grant of more than one year's leave to remain even if there has been a previous unsuccessful asylum appeal.

Section 83 of the 2002 Act reads: '83. 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 UK for a period exceeding one year (or for periods exceeding one year in aggregate). The person may appeal [to the tribunal] against the rejection of his asylum claim.'

The right of appeal is triggered by the grant of leave, not by the rejection of the asylum claim. Section 83 does not require a link between the rejection of the asylum claim and the grant of leave; section 83 does not exclude the right of appeal under that section if there has been a previous appeal on asylum grounds against an immigration decision within the meaning of section 82(2).

The tribunal in Abiyat also held that there is a right of appeal to the Upper Tribunal against a decision of the First-tier Tribunal declining jurisdiction when that decision has been made after full consideration and is embodied in a determination. The tribunal considered the Asylum and Immigration Tribunal (Procedure) Rules 2005 in particular and draws a distinction between those cases where a notice has been issued under rule 9 of the senior president's practice statements which had been adopted in the light of the decision in JH (Zimbabwe) v SSHD [2009] EWCA Civ 78 and those cases where the notice of appeal had been accepted by the tribunal, the tribunal had engaged with the issues and reached a decision.

The Court of Appeal held that: 'In the unusual circumstances of the present case where a decision on jurisdiction was made for the first time on a second reconsideration, it would in my view be extraordinary if no right of appeal existed.'

PR, SS, TC v SSHD [2011] EWCA Civ 988 considered the 'second tier appeals test' (section 13(6) of the Tribunals Courts and Enforcement Act 2007). Permission to appeal to the Court of Appeal may only be given if there is an important point of principle or practice or 'other compelling reason' for the Court of Appeal to hear the case. This was considered against the background of the criteria applied to second appeals by the Access to Justice Act 1999 and the case law culminating in R (Cart) v Upper Tribunal [2011] UKSC 28, and Eba v Advocate General for Scotland [2011] 3 WLR 149.

The appeal specifically considered 'other compelling reason'. The Court of Appeal accepted the submission for the appellants that the issue was primarily one of judicial policy, but, in acknowledging the possible relevance of extreme consequences for an individual (as in Cart) held that the word ''compelling' means legally compelling rather than compelling, perhaps from a political or emotional point of view, although such arguments may exceptionally add weight to the legal arguments'.

The Court of Appeal rejected the appellants arguments based on breach of international obligations, stating: 'There was no express or implicit support for such arguments in the judgments of the Supreme Court. Although the 'drastic consequences' of some tribunal decisions were regarded as potentially relevant, there was no indication that this turned on their implications under international law'¦ international law recognises no right to a second appeal.'

It goes on to say: 'The question is not therefore whether the nature of the asserted claim would, if its factual basis were established, risk drastic consequences, but whether there is a compelling reason why the issue on which the claimant has failed twice should be subject to a third judicial process.

'The two tiers of the tribunal system are and are plainly to be regarded as competent to determine matters of this kind and there is no case for saying that the UK would be in breach of its international obligations if the decisions of the Upper Tribunal are only amenable to appeal in very restricted circumstances. In short there is no case for contending that the nature of an asylum seeker's case which has failed twice in the tribunal system is a compelling reason for giving permission for a further appeal.'