Neutral Citation Number: [2016] EWCA Civ 116 Case No: C5/2014/3293 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLYUM CHAMBER) UPPER TRIBUNAL JUDGE RINTOUL DA/01165/2013 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/03/2016 Before : LORD JUSTICE JACKSON LADY JUSTICE KING and LORD JUSTICE SIMON ——————–Between : THE SECRETARY OF STATE FOR THE HOME DEPARTMENT - and JZ (ZAMBIA)

Appellant Respondent

—————————————-Mr Marcus Pilgerstorfer (instructed by the Government Legal Department) for the Appellant Ms Victoria Hutton (instructed by Cotisens Solicitors) for the Respondent Hearing date : 2 February 2016


Judgment

Judgment Approved by the court for handing down.

Lord Justice Jackson: 1.

This judgment is in eight parts, namely: Part 1. Introduction

Paragraphs 2 to 8

Part 2. The facts

Paragraphs 9 to 23

Part 3. The appeal to the Court of Appeal

Paragraphs 24 to 27

Part 4. Did the First-tier Tribunal misapply rule 398 by treating matters described in rules 399 and 399A as constituting exceptional circumstances? Paragraphs 28 to 34 Part 5. Did the First-tier Tribunal carry out a freestanding article 8 analysis, rather than addressing the article 8 issue through the lens of the Immigration Rules? Paragraphs 35 to 43 Part 6. Did the First-tier Tribunal err in finding “exceptional circumstances”? Paragraphs 44 to 49 Part 7. The remaining grounds of challenge

Paragraphs 50 to 57

Part 8. Executive summary and conclusion

Paragraphs 58 to 61

Part 1. Introduction 2.

This is an appeal by the Secretary of State against a decision made by the First-tier Tribunal and upheld by the Upper Tribunal that JZ, despite his conviction for serious offences, cannot be deported to Zambia. The issue in this appeal is whether the Firsttier Tribunal and the Upper Tribunal correctly applied rules 398 to 399A of the Immigration Rules.

3.

JZ was the defendant in criminal proceedings, the applicant for relief from deportation, the appellant before the First-tier Tribunal and the respondent before the Upper Tribunal. When referring to his role in the litigation I shall call him “the claimant”.

4.

The Secretary of State for the Home Department was respondent before the First-tier Tribunal and appellant before the Upper Tribunal. She is the appellant before this Court. I shall refer to her as “the Secretary of State”. I shall refer to the UK Border Agency as “UKBA”.

5.

Again in this judgment references to “article 8” are references to article 8 of the European Convention on Human Rights. Article 8 provides: “ARTICLE 8 Right to respect for private and family life

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1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

6.

I shall refer to the UK Borders Act 2007 as “the 2007 Act”. Sections 32 and 33 of the 2007 Act provide: “32 Automatic deportation (1) In this section “foreign criminal” means a person— (a)

who is not a British citizen,

(b)

who is convicted in the United Kingdom of an offence, and

©

to whom Condition 1 or 2 applies.

(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months. (3) Condition 2 is that— (a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and (b) the person is sentenced to a period of imprisonment. (4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good. (5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33). (6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless— (a) he thinks that an exception under section 33 applies,

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(b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or © section 34(4) applies. (7) Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State. 33 Exceptions (1) Section 32(4) and (5)— (a) do not apply where an exception in this section applies (subject to subsection (7) below), and (b) are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions). (2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach— (a) a person’s Convention rights, or (b) the United Kingdom’s obligations under the Refugee Convention. (3) Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction. ….” 7.

The Immigration Rules as they were at the time of the First-tier Tribunal’s decision provided as follows: “398. Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and (a) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; (b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or

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© the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors. 399. This paragraph applies where paragraph 398(b) or © applies if – (a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and (i)

the child is a British Citizen; or

(ii)

the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case

(a)

it would not be reasonable to expect the child to leave the UK; and

(b)

there is no other family member who is able to care for the child in the UK; or

(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection, and (i)

the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and

(ii)

there are insurmountable obstacles to family life with that partner continuing outside the UK.

399A. This paragraph applies where paragraph 398(b) or © applies if – (a) the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.

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(b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.” 8.

After these introductory remarks, I must now turn to the facts. Part 2. The facts

9.

The claimant is a Zambian national who was born on 7 April 1994. The claimant was born and raised in Zimbabwe. His mother is a Zambian national of Congolese descent. The claimant’s father was a German national of Lebanese descent. He has not been involved in the claimant’s life.

10.

In 2003 the claimant at the age of 9 came to the UK with his mother and stepfather. He has lived with them and his half siblings since then, except when he was imprisoned. In 2010 all family members obtained indefinite leave to remain. In 2013 the claimant’s mother, stepfather and half-siblings became British citizens.

11.

In August 2011 there was major rioting in London. The claimant took an active part in those riots. At one stage he hurled a burning plank of wood at the police. Fortunately a CCTV camera recorded this shocking behaviour with reasonable clarity.

12.

The claimant’s mother saw a film of the rioting on television. She recognised her son amongst the rioters. Acting with commendable civic duty, she reported her own son to the police. This must have been an agonising decision for her, but she did the right thing.

13.

On 28 May 2012 at Wood Green Crown Court the claimant pleaded guilty to one count of violent disorder and two counts of arson. On 13 July 2012 he was sentenced to a total of 4½ years’ detention.

14.

The Secretary of State decided to deport the claimant in accordance with the provisions of the 2007 Act. She noted that the claimant was a “foreign criminal” within section 32 of that Act. She concluded that none of the exceptions in section 33 applied. On 4 September 2012 the Secretary of State served on the claimant a liability to deportation notice.

15.

On 20 September 2012 the claimant’s solicitors sent in submissions setting out why he should not be deported. The Secretary of State considered those submissions, but adhered to her original view. On 28 May 2013 the UKBA sent a deportation order to the claimant. The UKBA set out the reasons for the Secretary of State’s decision to deport in an accompanying letter.

16.

In its letter dated 28 May 2013 the UKBA stated that any interference with the claimant’s rights under article 8 would be in accordance with the permissible aim of preventing disorder and crime and protecting the rights and freedoms of others. The

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Secretary of State relied upon the provisions of section 32 of the 2007 Act and rule 398 of the Immigration Rules. 17.

The claimant appealed to the First-tier Tribunal, essentially on the grounds that deportation would infringe his right to private and family life in the UK under article 8. A panel of the First-tier Tribunal comprising Immigration Judge Mitchell and Sir Jeffrey James KBE CMG heard the appeal on 27 January 2014 and handed down its decision on 4 March 2014. The panel received oral evidence from the claimant, his mother and stepfather.

18.

Having considered the oral and written evidence, the panel made the following findings of fact: (i)

The claimant spent the first 9 years of his life in Zimbabwe before coming to England. He spent no significant time in Zambia.

(ii)

The claimant has no ties or connections with Zambia. His only relative outside the UK is his grandmother, who lives in Zimbabwe.

(iii)

The claimant is unfamiliar with the culture and all the social aspects of Zambia.

(iv)

The claimant cannot speak any language used in Zambia other than English.

(v)

The claimant is of mixed race. This exacerbates his situation. Being of mixed race is a significant disadvantage in many African states. Such a person is often positively rejected by national ethnic groups.

(vi)

The claimant may have difficulty in finding employment in Zambia.

(vii)

As a deported criminal, the claimant would not be welcomed by the Zambian authorities or by those in the community.

(viii) The claimant had lived in the UK for 9 years before being detained. The subsequent 2 years which he spent in detention leading up to his tribunal appeal did not count for the purpose of calculating his period of residence in the UK. (ix)

The claimant’s family are all British citizens. The claimant has all his roots and connections in the UK. He considers the UK to be his home. Deportation to Zambia would not merely interfere with his private and family life. It would eliminate the claimant’s private and family life.

(x)

The claimant’s mother and father are HIV positive. They have in the past relied on the claimant to undertake parental roles towards his younger halfsiblings.

(xi)

The claimant’s detention has caused hardship to other family members.

(xii)

The claimant is aged 19 (i.e. at the time of the First-tier Tribunal hearing). People retain some vulnerabilities long after their 18th birthday. The claimant was sentenced just weeks after his 18th birthday.

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(xiii) The claimant is fit and well. (xiv)

The claimant’s offences were extremely serious. He was an active participant in the 2011 riots. He did not plead guilty until the day of trial. He was sentenced to a term of imprisonment in excess of 4 years.

(xv)

Nevertheless, the claimant was a minor when he committed the offences and they were “one-off”.

(xvi)

The claimant has expressed remorse for his crimes and not re-offended. He has disassociated himself from his former friends in the neighbourhood. He has matured and gained insight into why he offended on that one single night. The risk of him re-offending is low.

(xvii) If the claimant is deported, no one in his family will follow him to Zambia. There is no suggestion that they should. 19.

I have taken the liberty of setting out the First-tier Tribunal’s findings of fact in a rather more logical order than they appear in the Tribunal’s decision. Where necessary, I shall refer to those findings by reference to the numbered sub-paragraphs set out above.

20.

The First-tier Tribunal held that the facts which it had found were such that it would be unjustifiably harsh to deport the claimant to Zambia. Such deportation would be a breach of the claimant’s rights under article 8. Accordingly the case fell within exception 1 set out in section 33 of the 2007 Act. Therefore, the First-tier Tribunal allowed the claimant’s appeal against the deportation order.

21.

The Secretary of State was aggrieved by that decision and appealed to the Upper Tribunal, essentially on two grounds. First, the First-tier Tribunal erred in making its findings of fact. Secondly, the First-tier Tribunal erred in holding that the claimant’s rights under article 8 could outweigh the strong public interest in deportation.

22.

Upper Tribunal Judge Rintoul heard the appeal on 21 May 2014 and handed down his decision on 3 July 2014. He rejected the challenge to the First-tier Tribunal’s findings of fact. He held that there was no error of law in the First-tier Tribunal’s conclusion that the claimant’s article 8 rights outweighed the public interest in deportation. Accordingly he dismissed the Secretary of State’s appeal.

23.

The Secretary of State was aggrieved by the decision of the Upper Tribunal and accordingly has appealed to the Court of Appeal. Part 3. The appeal to the Court of Appeal

24.

By a notice of appeal filed on 13 October 2014 the Secretary of State appealed to the Court of Appeal on several grounds. I would summarise the Secretary of State’s contentions in their final manifestation as follows: (i)

The First-tier Tribunal misapplied rule 398 of the Immigration Rules by treating matters described in rules 399 and 399A as constituting “exceptional circumstances” within the meaning of rule 398.

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(ii)

The First-tier Tribunal erred in applying a freestanding article 8 analysis, rather than addressing the article 8 issues through the lens of the Immigration Rules.

(iii)

The facts as found by the First-tier Tribunal are not capable of constituting “exceptional circumstances” within the meaning of rule 398 of the Immigration Rules. The First-tier Tribunal erred in treating them as such.

(iv)

The First-tier Tribunal failed properly to assess (a) the strength of the claimant’s family ties in the UK and (b) the degree of interference with the claimant’s family life which would be caused by deportation to Zambia.

(v)

The First-tier Tribunal impermissibly applied a “near miss” principle in allowing the claimant’s appeal under the Immigration Rules.

25.

Mr Marcus Pilgerstorfer for the Secretary of State goes on to argue that if he succeeds on any of those arguments the Upper Tribunal erred in dismissing the Secretary of State’s appeal. Accordingly this Court should allow the appeal against the decision of the Upper Tribunal and then re-make that decision in favour of deportation. Alternatively, the Court of Appeal should remit the case to the First-tier Tribunal so that the First-tier Tribunal can re-make the decision.

26.

Ms Victoria Hutton resists all of the Secretary of State’s challenges to the First-tier Tribunal decision. Furthermore she submits that some of those challenges were not taken on the appeal to the Upper Tribunal and it is now too late for the Secretary of State to advance new and ingenious arguments in the Court of Appeal.

27.

For reasons which will become apparent, I do not find it necessary to deal with the procedural issues. I shall proceed on the basis that all the Secretary of State’s arguments are open to her in this court and I shall deal with them as they stand. Part 4. Did the First-tier Tribunal misapply rule 398 by treating matters described in rules 399 and 399A as constituting exceptional circumstances?

28.

Mr Pilgerstorfer submits that the first task of the First-tier Tribunal in a case such as this is to consider whether the claimant can bring himself within rules 399 or 399A. If he cannot, then matters of the character described in those two rules drop out of the picture. Thus matters such as length of residence in the UK and lack of ties with Zambia cannot form part of the aggregation of matters which collectively constitute “exceptional circumstances” within the meaning of rule 398.

29.

I do not accept this argument for two reasons. First, as a matter of construction, rules 398, 399 and 399A do not either expressly or impliedly “ring fence” the 399/399A factors in the way that Mr Pilgerstorfer suggests. Rule 398 first requires the Secretary of State to see whether the proposed deportee falls into the safety net of rule 399 or 399A. If he/she does not, then rule 398 requires the Secretary of State to consider whether there are exceptional circumstances which outweigh the public interest in deportation. Obviously there is no “near miss” principle. A deportee who has a sentence slightly longer than 4 years or who fails by a small margin to satisfy 20 years’ residence requirement cannot say that that fact alone constitutes “exceptional circumstances”. But it would be bizarre if the Secretary of State were required to

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ignore such matters altogether when considering whether there were “exceptional circumstances”. 30.

In my view, rule 398 requires the Secretary of State (and on appeal the First-tier Tribunal) to consider all relevant matters in deciding whether there are “exceptional circumstances” which outweigh the public interest in deportation. In the vast majority of cases the answer will be no. But the Secretary of State cannot take a shortcut to arrive at that answer by ignoring every circumstance of the character mentioned in rules 399 and 399A.

31.

The second reason why I reject the Secretary of State’s argument is this. As Ms Hutton pointed out, if the argument were correct the Secretary of State could have relied upon that argument in many of the reported cases. In fact there appears to be no case where that argument has prevailed, or indeed even featured in the Secretary of State’s submissions. Mr Pilgerstorfer was constrained to accept that in his speech in reply, subject to one caveat.

32.

Mr Pilgerstorfer’s caveat was that the Court of Appeal implicitly, though not expressly, accepted that argument in LC (China) ) v Secretary of State for the Home Department [2014] EWCA Civ 1310 at the end of [24]. I do not agree. All the Court of Appeal was saying in that passage was that separation of children from their father for a long time, in a case not falling within rule 399, would not constitute “exceptional circumstances”.

33.

In the present case some of the facts relied upon by the First-tier Tribunal as forming part of the “exceptional circumstances” related to the claimant’s length of residence in the UK and his lack of ties with Zambia. In my view, the First-tier Tribunal was entitled to take those matters into account as relevant factors when considering whether on a holistic assessment “exceptional circumstances” existed sufficient to outweigh the public interest in deportation.

34.

Accordingly my answer to the question posed in this part of the judgment is no. Part 5. Did the First-tier Tribunal carry out a freestanding article 8 analysis, rather than addressing the article 8 issue through the lens of the Immigration Rules?

35.

The correct approach for any decision-maker applying rules 398 to 399A of the Immigration Rules is now well-established. The task is not to carry out a freestanding analysis of the article 8 factors. The Secretary of State has already carried out that exercise in drafting rules 398 to 399A. Those rules form a complete code explaining how article 8 operates in cases where a foreign criminal is resisting deportation. The decision-maker must take account of the proposed deportee’s Convention rights through the lens of the Immigration Rules. The rules emphasise the high public interest in deporting foreign criminals. In a case to which rules 399 and 399A do not apply, very compelling reasons will be required if they are to constitute “exceptional circumstances” which outweigh the public interest in deportation. For a fuller exposition of these now well-established principles, see MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544, Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636, LC (China) v Secretary of State for the Home Department [2014] EWCA Civ 1310 and Secretary of State for the Home Department v Suckoo [2016] EWCA Civ 38.

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36.

Mr Pilgerstorfer submits that in the present case, the First-tier Tribunal did not adopt the correct approach in accordance with those authorities. Instead the tribunal considered the application of article 8 on a freestanding basis.

37.

I am bound to accept that the First-tier Tribunal’s decision is not a model of its kind. It is neither well structured nor easy to follow. Findings of fact are dotted around in no very logical order, interspersed among observations about the law. Furthermore the legal analysis is somewhat discursive. It would have been easier for the Tribunal, and it would certainly be easier for the reader, if all findings of fact were set out together in a coherent order. It would also be better if the Tribunal had set out the relevant legal principles in one place and then applied them to the facts as found.

38.

Despite those shortcomings, I am satisfied that the tribunal did apply the correct legal principles. At paragraphs 78 and 79 the tribunal said: “78. The appellant is a foreign criminal and we have to consider paragraph 398 and 399 of the immigration rules (see above). 79. We consider that those rules give a very clear indication as to how the facts of the case should be approached. They have been referred to as a “complete code” in recent cases (see below).”

39.

At paragraph 95 the tribunal cited the Court of Appeal’s decision in MF (Nigeria). At paragraph 105 the tribunal stated that “exceptional circumstances” are necessary before a foreign criminal can resist deportation on article 8 grounds.

40.

In paragraph 125 the tribunal said: “We consider that the interference in both appellant’s private and family life and the effect it has on family members is not proportionate to the legitimate public end and the public interest in deportation sought to be achieved by his deportation from the United Kingdom. The effects of deportation would be unjustifiably harsh in all the circumstances”.

Mr Pilgerstorfer criticises that paragraph as applying the wrong test. 41.

I do not accept that criticism. In MF (Nigeria) at [14] Lord Dyson MR, delivering the judgment of the court, cited with approval the following guidance given by the Secretary of State: “a case is not exceptional just because the exceptions to deportation in rule 399 or rule 399A have been missed by a small margin. Instead, ‘exceptional’ means circumstances in which deportation would result in unjustifiably harsh consequences for the individual or their family such that

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deportation would not be proportionate. That is likely to be the case only very rarely.”

It is clear that in paragraph 125 of its decision the First-tier Tribunal was applying paragraph 14 of MF (Nigeria). 42.

Having read and re-read the First-tier Tribunal’s decision several times, I am satisfied that the tribunal was applying the correct legal principles. The tribunal did not carry out a freestanding article 8 analysis. Instead, it took account of the claimant’s article 8 rights through the lens of Immigration Rules 398 to 399A.

43.

My answer to the question posed in this part of the judgment is no. Part 6. Did the First-tier Tribunal err in finding “exceptional circumstances”?

44.

Mr Pilgerstorfer submits that the facts found by the First-tier Tribunal are not capable of constituting “exceptional circumstances” within the meaning of rule 398 of the Immigration Rules. In other words, although the tribunal referred to the need for “exceptional circumstances”, it did not apply a high enough standard of exceptionality.

45.

I take a different view of this matter. I have set out the First-tier Tribunal’s findings of fact in Part 2 above. Findings (i), (ii) and (iii) are particularly significant. So far as I can discern from the evidence which the tribunal accepted, the claimant has only once set foot in Zambia. That was when, as a 9 year old boy, he was changing planes: see paragraph 29 of the tribunal’s decision.

46.

The tribunal make the valid point that deportation in this case would not involve “returning” the claimant to his country of origin. It would mean sending the claimant to a country where he has never lived and where he would face the difficulties described in findings (iv), (v), (vi) and (vii). When these matters are added to findings (viii), (ix), (x), (xi), (xii), (xv), (xvi) and (xvii), there is an aggregation of extremely powerful factors pointing in favour of allowing the claimant to continue enjoying his family life in the UK. The fact that the claimant committed his offences when he was only 17 must be a relevant factor, though not of course conclusive: see Maslov v Austria (application number 1638/03, 23 June 2008) at [72]).

47.

It seems to me that this is a highly unusual case. The First-tier Tribunal was required to carry out an evaluation. That was a task for the tribunal, not for this court. There is a range of possible conclusions which the First-tier Tribunal might have reached upon carrying out the balancing exercise, without committing any error of law. If the Firsttier Tribunal had held that the facts as found did not amount to “exceptional circumstances” within the meaning of rule 398, no appellate tribunal or court would be entitled to interfere with that conclusion. On the other hand, if the First-tier Tribunal concluded (as it did) that those facts did amount to “exceptional circumstances”, again no appellate tribunal or court could interfere.

48.

My overall conclusion is that this case is a finely balanced one. In that regard, it is not unlike MF (Nigeria): see the judgment of the Court of Appeal at [50]. This Court

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is not entitled to interfere with the decision reached by the First-tier Tribunal and the Upper Tribunal. 49.

My answer to the question posed in this part of the judgment is no. Part 7. The remaining grounds of challenge

50.

The next ground of challenge is that the First-tier Tribunal failed properly to assess (a) the strength of the claimant’s family ties in the UK and (b) the degree of interference with the claimant’s family life which would be caused by deportation to Zambia.

51.

I do not accept this argument. The First-tier Tribunal examined very fully the character of the claimant’s family life in the UK. The tribunal also considered the effect of deporting the claimant to a country where he had never lived before. The tribunal held that this would “eliminate” his family life.

52.

Mr Pilgerstorfer admits that the tribunal did not take modern means of communication into account or the opportunity for the claimant’s family to visit him in Zambia. I agree that the tribunal did not mention modern means of communication in its decision. On the other hand, the tribunal did observe at paragraph 83: “There is no suggestion that anyone in the appellant’s family should follow the appellant to Zambia”.

Given all the problems of the claimant’s family as described by the First-tier Tribunal, the possibility of family holidays in Zambia would not appear realistic. 53.

The short point here is that the existence of modern means of communication would hardly diminish the devastating effect on this young man of deportation to Zambia. In my view the First-tier Tribunal’s omission to mention modern means of communication does not undermine the decision.

54.

The Secretary of State’s final argument is that the First-tier Tribunal impermissibly approved a “near miss” principle.

55.

Even Mr Pilgerstorfer, who has valiantly defended the Secretary of State’s position on every front, seemed to wane in enthusiasm when reaching this final ground of appeal. He accepts that there is no express reliance on a “near miss” principle. He submits, however, that the First-tier Tribunal may have been influenced by the fact that the claimant was only just 18 when convicted. He points out that Miah v Secretary of State for the Home Department [2012] EWCA Civ 261; [2013] QB 35 prohibits reliance on a “near miss” principle.

56.

I do not accept this argument. On reading the First-tier Tribunal’s decision as a whole, I am satisfied that the tribunal was not relying upon a “near miss” principle. The tribunal was entitled to and did have regard to the claimant’s age at conviction as one of many relevant factors when determining whether, cumulatively, those matters amounted to “exceptional circumstances” within the meaning of rule 389.

57.

Accordingly I reject the final grounds of appeal advanced by the Secretary of State.

Judgment Approved by the court for handing down.

Part 8. Executive summary and conclusion 58.

In 2003 the claimant, a Zambian national who had only ever lived in Zimbabwe, came to the UK at the age of 9. His family settled in the UK and obtained British citizenship. In August 2011 the claimant took part in the London riots. As a result, in 2012 he pleaded guilty to violent disorder and arson, for which he was sentenced to 4½ years’ detention.

59.

The Secretary of State decided to deport the claimant as a foreign criminal. The claimant appealed against that decision, relying upon article 8 of the European Convention on Human Rights. The First-tier Tribunal allowed the claimant’s appeal and the Upper Tribunal upheld the First-tier Tribunal’s decision.

60.

The Secretary of State now appeals to the Court of Appeal. In my view, both the First-tier Tribunal and the Upper Tribunal correctly applied rules 398 to 399A of the Immigration Rules. In accordance with authority, those Tribunals took account of the claimant’s Convention rights through the lens of the Immigration Rules. The tribunals concluded, and were entitled to conclude, that exceptional circumstances existed which outweighed the public interest in deporting the claimant.

61.

Accordingly, if Lady Justice King and Lord Justice Simon agree, this appeal will be dismissed.

Lady Justice King: 62.

I agree.

Lord Justice Simon: 63.

I also agree.

Case No: C5/2015/1008 Neutral Citation Number: [2016] EWCA Civ 118 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) Deputy Judge of the Upper Tribunal Digney IA/25969/2013 Royal Courts of Justice Strand, London, WC2A 2LL Date: 1 March 2016 Before : LORD JUSTICE MOORE-BICK Vice-President of the Court of Appeal, Civil Division LORD JUSTICE BEATSON and LORD JUSTICE UNDERHILL ——————–Between : SECRETARY of STATE for the HOME DEPARTMENT - and IKPONMWOSA IZE-IYAMU

Appellant Respondent

—————————————-Mr. Ivan Hare (instructed by the Government Legal Department) for the appellant Mr. Zane Malik (instructed by Curling Moore Solicitors and Advocates) for the respondent Hearing date : 11th February 2016


Judgment

Lord Justice Moore-Bick : Introduction 1.

This appeal is concerned with the intricacies of the legislation governing the acquisition of what is known as ‘the right of abode’, that is, the unrestricted right to live in this country and to enter and leave it without the need to obtain any kind of formal grant of leave under the legislation governing the movement of those who are not British citizens.

2.

The respondent, Mr. Ikponmwosa Ize-Iyamu, was born in Nigeria on 23rd July 1975. His father had been born in Nigeria on 28th April 1933; his mother had been born in what was then St. Kitts, Nevis and Anguilla (now St. Kitts and Nevis) on 8th April 1941. By virtue of section 1 of the British Nationality and Status of Aliens Act 1914 each of the respondent’s parents thereby acquired the status of a natural-born British subject. The British Nationality Act 1948

3.

On 30th July 1948 Parliament passed the British Nationality Act 1948, which established for the first time the status of citizen of the United Kingdom and Colonies. By virtue of section 4 a person born within the United Kingdom and Colonies after the commencement of the Act thereby became a citizen of the United Kingdom and Colonies and by virtue of section 12(1) a person who was a British subject immediately before the date of commencement of the Act became a citizen of the United Kingdom and Colonies if he had been born within the territories of the United Kingdom and Colonies and would have been a citizen of the United Kingdom and Colonies if section 4 had been in force at the time of his birth. As a result, the respondent’s mother and father both became citizens of the United Kingdom and Colonies on 1st January 1949 when the Act came into force. Under the British Nationality Act 1948 citizens of the United Kingdom and Colonies had the status of British subjects and were free to enter and remain in this country at will. The Nigeria Independence Act 1960

4.

Nigeria became independent on 1st October 1960. By section 2(2) of the Nigeria Independence Act 1960 those who had been citizens of the United Kingdom and Colonies immediately before that date ceased to have that status if under the law of Nigeria they became citizens of Nigeria on that date and they themselves or their fathers or grandfathers had been born in the territories comprised in Nigeria. Under the Constitution of Nigeria all those who had been born in the former colony and were citizens of the United Kingdom and Colonies on 30th September 1960 became citizens of Nigeria on 1st October 1960. The combined effect of these provisions was that the respondent’s father ceased to be a citizen of the United Kingdom and Colonies on 1st October 1960. The Immigration Act 1971 – the right of abode

5.

The concept of the right of abode is central to the Immigration Act 1971. The Act, which superseded the Commonwealth Immigrants Acts 1962-1968, imposed restrictions on the number of British subjects who could enter and remain in this

country as of right. Section 1 provided (and continues to provide) that those who have the right of abode are free to live in and to come into and go from the United Kingdom without let or hindrance, but that those not having the right of abode may live, work and settle in the United Kingdom only by permission and subject to the regulation and control imposed by the Act. 6.

Section 2(1) of the Act defined those who had the right of abode. The section has since been amended, but for present purposes it is sufficient to note that as originally enacted such persons included (i) citizens of the United Kingdom and Colonies who had acquired that citizenship by birth in the United Kingdom or any of the Islands, (ii) citizens of the United Kingdom and Colonies born to a parent who had that citizenship at the time of the birth and had himself acquired it by birth in the United Kingdom or any of the Islands and (iii) citizens of the United Kingdom and Colonies born to a parent who had that citizenship at the time of the birth and had himself been born to a parent who “so had it”. (The islands to which the section referred were the Channel Islands and the Isle of Man: see section 33. In the rest of this judgment I shall refer for convenience simply to “the United Kingdom”.) Subject to the meaning of the expression “so had it” in section 2(1)(b)(ii), to which it will be necessary to return, it can be seen that the broad scheme of the legislation was that the right of abode was restricted to those citizens of the United Kingdom and Colonies who had acquired that status in the United Kingdom, or one of whose parents or grandparents had himself acquired that status in the United Kingdom. Section 2 also made provision for the acquisition of the right of abode by adoption, naturalisation and registration, but none of those is relevant for present purposes.

7.

Section 3(2) of the 1971 Act required the Secretary of State to draw up rules governing the practice to be followed in the administration of the Act for regulating the entry into and stay in the United Kingdom of those who did not have the right of abode and required leave in order to do so. Section 1(5) of the Act provided that the rules should not make Commonwealth citizens already settled in this country any less free to come into and go from the United Kingdom than they had been before the Act was passed. The British Nationality Act 1981

8.

Further changes to the law governing the acquisition of British citizenship and the right of abode were made with effect from 1st January 1983 by the British Nationality Act 1981. By section 11 those who immediately before the commencement of the Act had been citizens of the United Kingdom and Colonies and had the right of abode under the Immigration Act 1971 as then in force became British citizens when the Act came into force. A person born in the United Kingdom after that date became (and still becomes) a British citizen only if at the time of his birth his father or mother was a British citizen or was settled in the United Kingdom (section 1). A person born outside the United Kingdom after commencement became a British citizen only if his father or mother had acquired British citizenship otherwise than by descent. (Special provision was made for children born to parents serving overseas as members of the armed forces or civil servants.) The 1981 Act has been amended on more than one occasion, but for present purposes it is necessary to refer only to the current form of section 4C which resulted from amendments introduced by section 45 of the Borders, Citizenship and Immigration Act 2009 in order to remove the discriminatory effect of section 5 of the British Nationality Act 1948. (That section provided for the

acquisition of the status of citizen of the United Kingdom and Colonies by descent from a person’s father, but not his mother.) By section 4C those born before 1983 are able to acquire British citizenship by registration, subject to certain conditions, two of which have particular relevance to the present case. Of those, the first is that the applicant would at some time before 1st January 1983 have become a citizen of the United Kingdom and Colonies under section 5 of the 1948 Act if that section had also provided for the acquisition of citizenship by descent from a person’s mother; the second is that immediately before 1st January 1983 the applicant would have had the right of abode in the United Kingdom by virtue of section 2 of the Immigration Act 1971. The 1981 Act also amended section 2 of the Immigration Act 1971, to which it will be necessary to refer in detail in a moment. The respondent’s application 9.

On 25th April 2013 the respondent applied pursuant to the regulations made under section 10 of the Nationality, Immigration and Asylum Act 2002 for a Certificate of Entitlement to the right of abode in this country. His application was refused by the Secretary of State on the grounds that neither of his parents had been born, adopted, registered or naturalised in the United Kingdom at the time of his birth and that, although his mother had acquired the right of abode in this country, she had acquired it otherwise than by birth, so that he could not acquire it by descent from her. The First-tier Tribunal

10.

The First-tier Tribunal considered the legislation to which I have referred in detail. It appears to have been influenced by the provisions of section 1(5) of the Immigration Act 1971 that Commonwealth citizens settled in this country should not be any less free to enter or leave this country than before. It concluded in paragraph 61 of its decision that both the respondent’s parents had become citizens of the United Kingdom and Colonies and thereby gained a right of abode. It also held that each of the respondent’s parents had been born to parents who had the right of abode (paragraph 62). The respondent’s mother, as a citizen of the United Kingdom and Colonies who had the right of abode, became a British citizen when the British Nationality Act 1981 came into force (paragraph 64). Similarly, the tribunal held that the respondent’s father, who had previously acquired the status of a citizen of the United Kingdom and Colonies, automatically became a British citizen and was able to transfer that citizenship to the respondent under section 5 of the 1948 Act and section 11 of the 1981 Act (paragraph 67). It therefore allowed the respondent’s appeal. The Upper Tribunal

11.

The Secretary of State appealed to the Upper Tribunal, which held that, for the purposes of section 5 of the 1948 Act, section 45 of the Borders, Citizenship and Immigration Act 2009 required descent through a mother to be treated in precisely the same way as descent through a father (paragraph 6). The tribunal appears to have treated paragraphs 55 and 56 of the First-tier Tribunal’s decision as containing its reasoning, although in fact they contain part of the submissions made on behalf of the respondent. Nonetheless, the Upper Tribunal appears to have adopted them as containing a sound analysis of how the respondent had acquired the right of abode by descent from his mother. The tribunal was rather more cautious about the

respondent’s claim to have acquired the right of abode by descent from his father, but found it unnecessary to decide the point. It therefore dismissed the appeal. The present appeal 12.

This is the Secretary of State’s appeal against the decision of the Upper Tribunal. We were greatly assisted by Mr. Hare, who guided us through the complex statutory provisions, and by Mr. Malik, whose submissions on behalf of the respondent were succinctly and clearly made. The reasoning contained in the Secretary of State’s letter rejecting the respondent’s application is brief and that of both tribunals is rather opaque. Although it may be strictly unnecessary for the determination of the appeal, therefore, I think that it may be helpful to examine the different routes by which the respondent might seek to claim the right of abode in order to see whether any of them enable him to succeed.

13.

The starting point is section 2(1) of the Immigration Act 1971, which is central to the appeal, both in its original and amended forms. As amended by the British Nationality Act 1981 it now provides in its material parts as follows: “2.— Statement of right of abode in United Kingdom. (1) A person is under this Act to have the right of abode in the United Kingdom if— (a) he is a British citizen; or (b) he is a Commonwealth citizen who— (i) immediately before the commencement of the British Nationality Act 1981 was a Commonwealth citizen having the right of abode in the United Kingdom by virtue of section 2(1)(d) or section 2(2) of this Act as then in force; and (ii) has not ceased to be a Commonwealth citizen in the meanwhile.”

14.

The section thus provides two principal routes to obtaining the right to abode: by virtue of being a British citizen or by being a Commonwealth citizen who satisfies the requirements of subsection (1)(b)(i). It is convenient to consider first the route of British citizenship, which in principle the respondent could have acquired by descent from his father or his mother. (a) British citizenship by descent from his father

15.

As I have already mentioned, the respondent’s father became a citizen of the United Kingdom and Colonies on the coming into force of the British Nationality Act 1948, but he had been born in Nigeria and lost his status as a citizen of the United Kingdom and Colonies on 1st October 1960 when Nigeria became independent. When the respondent was born in 1975, therefore, his father was no longer a citizen of the United Kingdom and Colonies and was unable to pass that status on to him. As a

result the respondent could not acquire British citizenship by descent from his father under section 11 of the 1981 Act (see paragraph 8 above). (b) British citizenship by descent from his mother 16.

The respondent could acquire British citizenship by descent from his mother only by registration in accordance with the provisions of section 4C of the British Nationality Act 1981 and in order to do so he would first need to have made the necessary application. He has not in fact done so, but in any event such an application would be bound to fail because sections 4C(3) and 4C(3A) make it necessary for him to show not only that he would have become a citizen of the United Kingdom and Colonies under section 5 of the 1948 Act, if that section had provided for the acquisition of citizenship of the United Kingdom and Colonies by descent from his mother, but also that immediately before 1st January 1983 he would as a citizen of the United Kingdom and Colonies have had the right of abode by virtue of section 2 of the Immigration Act 1971 as it was then in force.

17.

I have referred in paragraph 6 of this judgment to the effect of section 2(1) of the Immigration Act 1971 as originally enacted and as in force on 31st December 1982. The material parts then provided as follows: “2—(1) A person is under this Act to have the right of abode in the United Kingdom if— ... (b) he is a citizen of the United Kingdom and Colonies born to or legally adopted by a parent who had that citizenship at the time of the birth or adoption, and the parent either— (i) then had that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or (ii) had been born to or legally adopted by a parent who at the time of that birth or adoption so had it;” In order for the respondent to have acquired the right of abode under that section, therefore, it would be necessary for his mother at the date of his birth to have acquired the status of a citizen of the United Kingdom and Colonies in the United Kingdom by birth, adoption, naturalisation or registration (none of which was the case) or to have been born to or legally adopted by a parent who at the time of her birth or adoption “so had it.”

18.

The meaning of the expression “so had it” in section 2(1)(b)(ii) was one of the issues in the appeal. Mr. Malik submitted that it meant no more than “also had it” and could therefore be satisfied if one of the respondent’s maternal grandparents had acquired citizenship of the United Kingdom and Colonies as a result of having been born in one of the colonies, including, presumably, St Kitts, Nevis and Anguilla. In my view,

however, that is clearly not what it means. The whole thrust of section 2 as originally enacted was to limit the right of abode to those who had a direct or indirect link to this country through the acquisition here of the status of a citizen of the United Kingdom and Colonies. It would be very strange if a child could inherit the right of abode from a grandparent who had acquired citizenship of the United Kingdom and Colonies abroad, but from a parent only if he or she had acquired it in this country. In my view the context in which the expression is found makes it quite clear that it is meant to refer to a grandparent who had acquired citizenship “in the same way”, i.e., in this country and not elsewhere. The case of R (Bhawan) v Secretary of State for the Home Department [2009] EWHC 469 (Admin), to which our attention was drawn and in which the expression was interpreted as having that meaning, was in my view correctly decided. (b) Commonwealth citizenship 19.

The alternative ground on which the respondent might seek to claim the right of abode is that on which he did in fact seek to rely, namely, that he is a Commonwealth citizen who immediately before the commencement of the British Nationality Act 1981 had the right of abode by virtue of section 2(1)(d) of the Act as then in force. However, in my view he does not qualify under this head either. Section 2(1)(d) as in force on 31st December 1982 provided as follows: “(1) A person is under this Act to have the right of abode in the United Kingdom if— ... (d) he is a Commonwealth citizen born to or legally adopted by a parent who at the time of the birth or adoption had citizenship of the United Kingdom and Colonies by his birth in the United Kingdom or in any of the Islands.”

20.

Once again, there is a statutory requirement that the respondent’s mother should have acquired citizenship of the United Kingdom and Colonies by birth in this country, which cannot be satisfied.

21.

In an attempt to circumvent these difficulties Mr. Malik submitted that the clear intent of section 45 of the Borders, Citizenship and Immigration Act 2009 was to remove the discriminatory effect of section 5 of the British Nationality Act 1948, which should therefore now be interpreted in relation to mothers in the same way as to fathers. In effect, he submitted, “father” should be read as meaning “father or mother”.

22.

Although I accept that the purpose of section 45 was to remove the discriminatory aspect of section 5 of the 1948 Act, I am unable to accept his submission. The fact is that Parliament chose to achieve that objective in a particular way and subject to certain conditions, which the respondent is unable to satisfy. Nor, in my view, can the respondent obtain any comfort from section 1(5) of the Immigration Act 1971. The subsection was repealed by the Immigration Act 1988, but in any event it did not create rights, let alone the right of abode, in favour of children whose parents were

settled in this country when the Act came into force. It simply placed certain limits on the Secretary of State’s rule-making powers. 23.

There is one final matter which it is necessary to touch on. It is a striking feature of this case that the respondent’s brother has obtained registration as a British citizen, which has understandably caused the respondent to feel that he has been treated unfairly in having his application for a Certificate of Entitlement rejected. We have not had to consider the circumstances surrounding his brother’s application and say nothing about it, save that the fact that it was successful cannot give rise to any legitimate expectation on the part of the respondent of a kind that would render the refusal of his own application an abuse of power or entitle him to the remedy he seeks.

24.

I am satisfied that the respondent does not have the right of abode and is therefore not entitled to a Certificate of Entitlement. Both the First-tier Tribunal and the Upper Tribunal reached the wrong conclusion because they failed to have regard to the detailed language of the legislation. For the reasons I have given I would allow the Secretary of State’s appeal.

Lord Justice Beatson : 25.

I agree.

Lord Justice Underhill : 26.

I also agree.

Case No: C5/2014/3878 Neutral Citation Number: [2016] EWCA Civ 122 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) DEPUTY UPPER TRIBUNAL JUDGE GARRATT IA 15784/2013 Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/03/2016 Before : LORD JUSTICE McCOMBE and LORD JUSTICE DAVID RICHARDS ——————–Between : THE SECRETARY OF STATE FOR THE HOME DEPARTMENT - and RAZIA BEGUM

Applicant/ Appellant Respondent

—————————————-Colin Thomann (instructed by the Government Legal Department) for the Applicant/Appellant Nazir Ahmed and Amjad Hussain (instructed by Sultan Lloyd) for the Respondent Hearing date: 17 February 2016


Judgment

Lord Justice McCombe: (A) Introduction 1.

On 17 February 2016 we heard an application by the appellant for an extension of time for filing an Appellant’s Notice in this case. At the conclusion of the hearing we announced our decision that the application for an extension was refused and that the reasons for our decision would be delivered at a later date. What follows are my reasons for reaching the decision that we did.

2.

The application for the extension of time had been listed with a direction that the appeal should follow for hearing if the application was granted. In the circumstances the appeal fell away with the refusal of the extension.

3.

The relevant time limit for appeal from the Upper Tribunal to this court was 28 days from the date on which the Upper Tribunal’s decision on permission to appeal was sent to the appellant: CPR Practice Direction 52D, paragraph 3.3. In this case the Upper Tribunal granted permission for the proposed second appeal on 5 June 2014. That decision was sent to the respondent on 29 July 2014. Thus, time for filing the Appellant’s Notice expired on or about 26 August 2014. The Appellant’s Notice was not filed until 27 November 2014, a delay of about 3 months.

4.

The appellant applied for the necessary extension time in section 9 of the Appellant’s Notice. In argument before us Mr Thomann for the appellant pointed out that the respondent had failed thereafter to raise objections to the application for an extension of time (properly so made in the Appellant’s Notice) within the 7 day time limit imposed by Practice Direction 52C 4(3)(ii) also that the objection to an extension was only taken by the respondent for the first time in a skeleton argument of 9 February 2016, only a week before the hearing. That skeleton argument was, therefore, filed long outside the relevant time frame following notification of listing, which in this case had occurred on or about 13 May 2015: see Practice Direction 52C paragraph 21, Timetable Part 1.

5.

The explanation (such as it is) for the delay in filing the Appellant’s Notice was stated in the following terms in section 9 of the Notice: “Due to an administrative oversight the SSHD regrettably failed to lodge her Appellant’s Notice as per the deadline stipulated by Rule CPR Direction 52D 3.3 (2). The Court of Appeal’s permission is respectfully sought to grant an extension of time in filing this notice. In light of permission to appeal already being granted in the lower courts, it is respectfully submitted that the Respondent has not suffered any prejudice in this matter due to the delay of the filing of the Appellant’s notice. Nor has there been more than de-minimis prejudice to the interest of justice.”

6.

Before addressing the substance of the application for the extension, I will set out a short summary of the background to the case to put the matter in context. (B) Background Facts

7.

The respondent is a Pakistani national now aged 70. She had lived in Pakistan for most of her life and certainly for well over 60 years. Her two sons, her two daughters (married to British citizens) and 12 grandchildren have lived in the United Kingdom for many years and are all British citizens. She has a brother, also a British citizen, living in the UK. She has no remaining close family in Pakistan. She has a number of health problems. In earlier years she made a number of visits to this country to visit family members already resident here. She entered the UK on 8 April 2005 on a multi-entry visit visa valid until 8 April 2010. Her last entry into the country was on 15 December 2009 and on 7 April 2010 (the day before the expiry of her visa) she applied for leave to remain as a dependent relative of family members already in the UK. That application was refused on 21 April 2010 and appeals against that refusal to the First-tier and Upper Tribunals (respectively) were dismissed on 16 July 2010 and 16 February 2011. An application for permission to appeal to this court was also refused on 14 April 2011. The respondent’s formal appeal rights were exhausted on 5 May 2011. She has remained in the country unlawfully since that time.

8.

During summer and autumn 2012 attempts were made to secure the respondent’s departure from the UK. She failed to report for a flight to Islamabad arranged for 18 July 2012. A home visit was made to her regular address in Stoke-on-Trent by immigration officers on 22 October 2012 but she was not present. Relatives told the officers that the respondent was in Rochdale but failed to supply any address at which she might be contacted.

9.

Also on 22 October 2012, however, a further application by the respondent was lodged with the appellant, seeking leave to remain on grounds outside the Immigration Rules. That was in turn refused on 19 April 2013. It was pointed out in the decision letter that from 19 June 2012 new Immigration Rules had established a “rules based” approach to the consideration of Article 8 claims. The decision reached, applying those rules, was that there would be no breach of the respondent’s rights under Article 8 of the Convention. (C) The Proceedings

10.

On appeal to the First-tier Tribunal, the respondent’s appeal was allowed by a decision promulgated on 11 April 2014 on the basis that the respondent’s removal from the country would be a disproportionate interference with her rights under the Convention. Permission to appeal to the Upper Tribunal was granted, by a different judge of the First-tier Tribunal, on 13 November 2013. The Upper Tribunal agreed that the First-tier Tribunal had applied an erroneous approach to the law but, in remaking the decision, the Upper Tribunal dismissed the appellant’s appeal, holding that the respondent met the requirements for leave to remain on the grounds of her private life under paragraph 276ADE(vi) of the Immigration Rules, as they then stood, which were in the following terms: “276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant: (i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3 and S-LTR.3.1 in Appendix FM; and

(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and (iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment) […] (vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK”. 11.

The essence of the judge’s conclusion can be found in paragraph 16 of the determination as follows: “Despite her past history of living in Pakistan where she was visited by her UK relatives, I find that the appellant has evidently taken the step to cut her ties with Pakistan by seeking to be with her UK based close family members. There is no evidence to suggest that she has anything left in Pakistan that might amount to a tie to that country, now, apart from it being her country of origin and the language. I therefore find that she is entitled to leave to remain on the grounds of her private life in accordance with the provisions of paragraph 276ADE(vi) of the Immigration Rules. I reach that conclusion on the basis that the respondent has not contested the existence of private and family life between the appellant and her close relatives in UK.” The judge considered it unnecessary, therefore, to reach a decision on the respondent’s claim outside the Rules. However, he indicated that he would have reached a similar conclusion in application of Article 8 of the Convention. He found that there were “compelling circumstances relating to her relationships, loss of ties and state of health which led [him] to conclude that her position outside the rules can be considered”. In doing so, and in applying the decision in Razgar v SSHD [2004] UKHL 27, the judge held that the questions of proportionality should be resolved in the respondent’s favour.

12.

By letter of 28 April 2014 from the appellant’s department, application was made to the Upper Tribunal for permission to appeal to this court. The application advanced detailed submissions to the effect that a second appeal should be permitted on the basis that the Upper Tribunal had made a material error of law raising an important point of principle or practice with regard to the criterion relating to “ties” in subparagraph (vi) of Rule 276ADE. Permission to appeal was granted by a different Upper Tribunal judge on 5 June 2014. In doing so, the judge said: “The respondent contends that the Upper Tribunal’s finding that the appellant had voluntarily renounced her ties to Pakistan where she had lived for over 60 years before coming to the United Kingdom in 2010, and that therefore she qualified under Appendix FM and paragraph 276ADE of the Immigration

Rules HC 395 (as amended), is legally erroneous because it fails to apply correctly the concept of ‘ties’ as set out in Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC). The grounds of appeal are arguable.” 13.

As already mentioned, it was in the period following that decision that the appellant then delayed for 3 months before lodging an Appellant’s Notice. I have already set out above the basis upon which it is argued that an extension of time should be granted. (D) The Application for an Extension of Time

14.

In advancing his submissions to this court, in support of the application for an extension of time, Mr Thomann for the appellant accepts that the principles deriving from the decisions of this court in Mitchell v News Group newspaper Ltd. [2013] EWCA Civ 1537 and Denton v TH White [2014] EWCA Civ 906 fall to be applied in cases of the present type: see R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633 and Secretary of State for the Home Department v SS (Congo) & ors. [2015] EWCA Civ 387. As noted by Richards LJ in the latter case a judge must approach an application for relief from sanction in three stages as follows: “i) The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the judge decides that the breach is serious or significant, then the second and third stages assume greater importance. ii) The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. It was stated in Mitchell (at para. [41]) that if there is a good reason for the default, the court will be likely to decide that relief should be granted. The important point made in Denton was that if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move to the third stage. iii) The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders. As listed in para. [35] of the judgment in Denton: ‘Thus, the court must, in considering all the circumstances of the case so as to enable it to deal with the application justly,

give particular weight to these two important factors. In doing so, it will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is good reason for it. ...’” 15.

As pointed out in Hysaj there is no special rule for public law cases but the importance of the issues to the public at large can properly be taken into account at stage (iii). Again, from the same case, it is to be noted that public authorities have a responsibility to adhere to the rules just as much as any other litigants: see the judgment of Moore-Bick LJ in Hysaj at paragraphs 41 and 42.

16.

In this case, Mr Thomann put at the forefront of his submissions the argument that the appellant’s grounds of appeal were strong ones. In this context, Moore-Bick LJ said this (at paragraph 46 of his judgment in Hsaj): “If applications for extensions of time are allowed to develop into disputes about the merits of the substantive appeal, they will occupy a great deal of time and lead to the parties’ incurring substantial costs. In most cases the merits of the appeal will have little to do with whether it is appropriate to grant an extension of time. Only in those cases where the court can see without much investigation that the grounds of appeal are either very strong or very weak will the merits have a significant part to play when it comes to balancing the various factors that have to be considered at stage three of the process. In most cases the court should decline to embark on an investigation of the merits and firmly discourage argument directed to them…..”

17.

In support of the application for an extension of time, Mr Thomann advanced four points: first, the delay had occurred after permission to appeal had been granted; secondly, the omission had not been a deliberate tactical one, but a mere oversight; thirdly, the parties knew that permission has been granted and that an appeal would follow; and fourthly, as already mentioned, the appellant had a compelling case on the merits.

18.

For my part, while these submissions were attractively advanced by Mr Thomann, I did not accept them.

19.

With regard to the first point, which seemed to me to merge with the third, the fact of the grant of permission did not seem to take the matter much further. The grant of permission to appeal does not necessarily imply that an appeal will follow and, as time recedes the appeal may become less and less likely. As to the second point, I did not think that the fact of simple oversight in the office of the lawyers assisted the appellant. Such errors when they occur in the offices of private solicitors tend not to give rise to a legitimate excuse for delay warranting an extension of time. The situation is no different in this case.

20.

On Mr Thomann’s fourth and final point, I recognise that the appellant may have had a relatively strong case that the Tribunals had erred, but that was true in the case of AC, one of the cases considered by this court in SS (Congo) & ors. (supra): see paragraph 112. However, no extension of time was granted in that case: it was thought that even if the appeal had been successful the case would probably have been remitted to the Upper Tribunal. That was a distinct possibility in this case too, as Mr Thomann accepted, although in his arguments on the appeal he also submitted that this court might have seen a way to allowing the appeal without such remission.

21.

At this third stage of the Mitchell/Denton criteria, it is also relevant that this was to be a second appeal. While permission to appeal had been granted by the Upper Tribunal, I have grave doubts whether the case properly satisfied the second appeal criteria. Even if the appellant was right that the Tribunals below had reached erroneous decisions, the principles were in truth well known and the decisions, on this hypothesis, merely represented failures to apply those principles properly. No new or separate point of principle or practice arose on the proposed appeals at all. Moreover, there was little, if any, public interest in the appeal being heard. The decision in the case would have been no more than an illustration of the application of well-known principles to the facts of the present case. I would add that the case turned upon a version of the relevant Immigration Rule that is no longer in force. Hence it is, to my mind, impossible to identify how the present case satisfied the relevant test for a grant of permission to appeal in the first place.

22.

In my judgment, it is important that the “second appeals” test is not strained to apply simply to a case in which, at first blush, the proposed appellant might appear to have a “good case” when no real issue of principle or practice is raised in the case at all.

23.

After hearing Mr Thomann’s helpful submissions, there was no doubt in my mind that if a similar mistake had been made by solicitors in a private law case, there would have been no question of an extension of time being granted. As Moore-Bick LJ said in Hysaj there is no special rule for public authorities and in this case there were no issues of importance to the public at large. (E) My Conclusion

24.

For these reasons, I reached the view that the application for an extension of time should be refused.

Lord Justice David Richards: 25.

I agree.

Case No: C2/2015/2582 Neutral Citation Number: [2016] EWCA Civ 123 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER) Mr Justice McCloskey and Upper Tribunal Judge Allen UTIJR 6 JR/2772, 2793, 2813, 2778 & 2781/2015 Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/03/2016 Before : LORD JUSTICE LAWS LORD JUSTICE McCOMBE and LORD JUSTICE FLOYD ——————–Between : R (on the application of HN and SA) (AFGHANISTAN) (Lead Cases associated Non-Lead Cases) - and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellants

Respondent

—————————————-Martin Westgate QC, Sonali Naik, Louise Hooper, Bryony Poynor and Ali Bandegani (instructed by Duncan Lewis) for the Appellants David Blundell, Mary Glass and Nicholas Ostrowski (instructed by the Government Legal Department) for the Respondent Hearing dates: 13 and 14 January 2016


Judgment

Lord Justice McCombe: (A) Introduction 1.

This is an appeal from the Upper Tribunal (Immigration and Asylum Chamber) (McCloskey J and Upper Tribunal Judge Allen) brought by two Afghan nationals known in these proceedings as HN and SA. The appeal is against the dismissal by the Tribunal of a claim for judicial review brought by the appellants against the respondent Secretary of State in respect of decisions by her, under rule 353 of the Immigration Rules, not to admit as fresh claims for asylum representations made on their behalf by solicitors in March 2015. The decisions on those representations as challenged by the appellants were dated 1 April 2015 (in HN’s case) and 23 and 31 March 2015 (in the case of SA). Permission to appeal from the Tribunal to this court was granted by Christopher Clarke LJ by order dated 19 August 2015.

2.

Earlier asylum claims had been made by each appellant which had been rejected by the respondent and on appeal to the First-tier Tribunal in decisions dated (in HN’s case) 30 September 2013 and (in SA’s case) on 17 September 2014. Permission to appeal to the Upper Tribunal from the First-tier had in each case been refused.

3.

Both HN and SA, and a number of other Afghan nationals whose claims to remain in the United Kingdom had been rejected by the respondent, were given directions for their compulsory removal to Afghanistan on a flight departing on 10 March 2015. Those directions prompted a number of claims for judicial review and for urgent interim relief staying removal, including the claims by these appellants. Stays of removal were granted.

4.

At an early stage of the proceedings, pursuant to the President’s directions by order of 10 April 2015, five “lead cases”, including those of the present appellants, were selected for initial determination. The remaining non-lead cases were at that stage, it seems, to be considered after the Tribunal’s decision in the lead cases. The procedural steps assumed some complexity. It is not, however, necessary to dwell upon them at any length as they are set out in the Tribunal’s judgment at paragraphs 10 to 22. As a result, all the cases came before the Tribunal for “rolled up” hearing on 11 and 12 May 2015, i.e. for hearing of the oral permission applications with substantive applications for judicial review to be heard immediately if permission to apply were granted. In other words, the permission and substantive stages were “rolled up” into one single hearing and the matters were heard on the merits. The non-lead cases, notwithstanding their non-lead status, were formally before the Tribunal, as is clear from the fact the Tribunal dealt with them in the judgment.

5.

By its judgment of 21 July 2015, the Tribunal granted permission to apply for judicial review in all the lead cases but dismissed the claims. In respect of the non-lead cases, the Tribunal refused permission to apply. By his permission order of 19 August 2015, Lord Justice Christopher Clarke gave permission to appeal, to the lead and non-lead claimants alike, against those orders.

6.

For reasons extraneous to the points arising on the appeals, the claims of three of the lead claimants and those of certain of the non-lead claimants have become academic and they have dropped out of the appeals to this court.

7.

The essence of the claims before us centres upon what was accepted to be a worsening security position in Afghanistan at the relevant time, following the withdrawal of the International Military Forces (“IMF”). The case of the appellants is that their claims for asylum/international protection, previously dismissed, should be reviewed and that they have genuine “fresh claims” standing a “realistic prospect of success” within rule 353. The new position in Afghanistan is such, they contend, that they are entitled to “subsidiary protection” within the meaning of the EU Qualification Directive 2004/83/EC in the light of the risk of “serious harm” to them consisting of “…serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict” (Article 15© of the Directive). Subsidiary protection would comprise the various benefits referred to in the relevant parts of Chapter VII of the Directive which include Article 24.2. That Article provides: “As soon as possible after the status has been granted, Member States shall issue to beneficiaries of subsidiary protection status a residence permit which must be valid for at least one year, unless compelling reasons of national security or public order otherwise require.” In implementation of this obligation in this country the respondent has issued a policy on Humanitarian Protection and the Immigration Rules make provision for the grant of the necessary residence permits as soon as possible, which may be valid for five years and are renewable and with a facility to apply for indefinite leave to remain (subject to various criteria) after five years: Immigration Rules 339Q(ii), 339R and 339S.

8.

A second issue arising in the proceedings was that the appellants contended before the Tribunal that the respondent acted in breach of an established “policy”, arising under a tri-partite Memorandum of Understanding (“MoU”) between Her Majesty’s Government, the Government of Afghanistan and United Nations High Commissioner for Refugees (“UNHCR”), under which certain persons “identified as vulnerable” should not be returned to Afghanistan. For reasons amplified below, the argument was modified to argue that the relevant policy was to be found, not in the MoU (an international instrument) but in a Home Office Operational Guidance Note.

(B) Background Facts relating to the Appellants 9.

The individual circumstances of the appellants were set out in agreed terms in the Tribunal’s judgment at [55] and [56] as follows: “[HN], is aged 22 years. He entered the United Kingdom as a minor, in 2007, aged 14. He is from Laghman province. He has resided here for almost eight years. The last judicial decision in his case was on 30 September 2013, when the FtT decided that the Applicant was not credible and rejected his evidence since his last appeal in 2011. The Judge found he had a deep rooted

resistance to being returned to Afghanistan, and rejected any risk on return. The FtT found that the Applicant had support in Afghanistan (the Applicant’s own account was of his cousin’s family in Kabul and he claimed he had previously resided in Kabul with a neighbour’s relative for a year before his departure from Afghanistan). The Judge also dismissed the Article 8 appeal. Mental health was not in issue in this appeal. On 20 November 2013 the Upper Tribunal refused permission to appeal. This Applicant’s challenge asserts a prima facie risk of Article 15© treatment in his home province. It further involves the contention that, in his present condition, he cannot safely or reasonably relocate to Kabul. This contention is based on certain medical evidence which records a history of recent suicide attempts, self-harming and hunger strike. The medical expert describes this Applicant as manifesting severe mental health problems, describing his condition as “unstable”. He too invokes paragraph 276 ADE of the Immigration Rules, highlighting his age, length of residence, health and the lack of meaningful healthcare in Kabul and linking this with his private life rights under Article 8 ECHR. He further contends that he qualifies to be considered a vulnerable person within the terms of the OGN of February 2015 and that the Secretary of State should now give consideration to granting him leave to remain exceptionally under paragraph 353B of the rules. … [SA], celebrated his 18th birthday on his deemed date of birth of 01 January 1997. He originates from Baghlan province. On 01 October 2014 the FtT held that while he would be at real risk of persecution in his home area, he could safely and reasonably relocate to Kabul. The first element of his case is based on Article 15© of the Qualification Directive. The second involves the contention that he cannot safely relocate internally in Afghanistan. The third, invoking paragraph 276ADE(vi) of the Immigration Rules, is based on the contention that in light of his age, recent separation from Afghanistan and absence of family support in Kabul, there are clearly serious obstacles to his reintegration there. The fourth element of his challenge is, invoking JS (Former unaccompanied child – durable solution) Afghanistan [2013] UKUT 00568 (IAC) that he is a former looked after child he requires a “durable solution” to any proposed resettlement and, given the absence thereof, his removal to Afghanistan will breach his right to respect for private life under Article 8 ECHR.” (C) The Representations made to the Respondent and the Decisions HN

10.

In the face of the proposed removal of HN from the UK to Afghanistan, on 7 March 2015, HN’s solicitors sent a pre-action protocol letter to the respondent requesting a stay of removal. The letter was based upon reported statements of the Afghan Minister for Integration and Refugees and by the country’s ambassador in the United Kingdom that removal of Afghan citizens from EU member states should be suspended in view of the deterioration in conditions in Afghanistan. The solicitors also relied upon HN’s mental health. On 27 March 2015 the solicitors supplemented the arguments with reports from two experts, Professor Susan Clayton and Dr Liza Schuster. The contents of these representations were summarised in the Amended Grounds of Claim as follows.

11.

Dr Schuster’s report referred to a number of features: a. She said that the reception centre of the International Office of Migration in Afghanistan could only provide limited assistance and required those given initial accommodation to leave after two weeks. This, she said, often required those returned to the country to depart for unsafe provinces; b. She referred to the deteriorating infrastructure which was under pressure from population increase; c. Her view was that in the absence of support those returned “will find it difficult, perhaps impossible to find livelihood opportunities”; d. Those returned from the UK tended to be regarded as contaminated or “westernised” and some were vulnerable to recruitment by armed groups; e. Reintegration packages were said to be inadequate and on failure of new businesses started by them risked being forced to choose between destitution in Kabul or risks of returning to unsafe provinces on unsafe roads.

12.

Professor Clayton’s report centred upon separated child asylum seekers. She had tracked 70 of those returned from the UK and found that they rarely had family in Kabul to look to for support or, if they did, they tended to be shunned because of the fact of their return from abroad. She referred to the 680,000 internally displaced persons and a figure of 1 million persons to be regarded as a “population of concern” according to UNHCR 2014 figures. Such figures showed that it was difficult even for able-bodied young men to settle into life in the country. Further, returned migrants with western styles and dress, and with knowledge of English, were seen as “westernised” and for that reason potentially wealthy, rendering them vulnerable to attacks by the Taliban and other random kidnappings.

13.

Reference was also made to a statement of the United Nations Assistance Mission in Afghanistan, as summarised in the Amended Grounds as follows: “UNAMA In 2014, UNAMA documented 10,548 civilian casualties (3,699 deaths and 6,849 injured): “The intensification of conflict-related violence in Afghanistan took an extreme toll on civilians in 2014, with civilian loss of life and injury reaching

unprecedented levels. UNAMA documented 10,548 civilian casualties (3,699 deaths and 6,849 injured), marking a 25 per cent increase in civilian deaths, a 21 per cent increase in injuries for an overall increase of 22 per cent civilian casualties compared to 2013. In 2014, UNAMA documented the highest number of civilian deaths and injuries in a single year since it began systematically recording civilian casualties in 2009.” 14.

The respondent’s decision on these representations was contained in her official’s letter of 1 April 2015. That is the letter that has been studied in the course of arguments on this appeal. (I would note, however, that this letter itself actually acknowledges letters of 3 and 5 March 2015 – to which our attention was not directed - rather than referring to representations of 7 and 27 March, as mentioned in the Amended Grounds of Claim.)

15.

The decision letter is long, running to 15 pages. It has been necessary to consider it closely to address the arguments on the appeals but I shall endeavour to summarise it shortly, for the purposes of exposition, in this judgment.

16.

Importantly, it is accepted by counsel for the appellants that the letter correctly states the test to be applied where material presented to the respondent is said to give rise to a “fresh claim” under rule 353. This is the test as set out in the judgment of Buxton LJ in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 at paragraphs 6 and 7 and is quoted in the letter as follows: “Buxton LJ explained the nature of the Secretary of State’s task under paragraph 353: ... [She] has to consider the new material together with the old and make two judgments. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under rule 353(i) according to whether the content of the material has already been considered. If the material is not “significantly different” the Secretary of Sate has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgement will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material. To set aside one point that was said to be a matter of some concern, the Secretary of State, in assessing the reliability of new material, can of course have in mind both how the material relates to other material already found by an adjudicator to be reliable, and also have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator. However, he must also bear in mind that the latter may be of little relevance when, as is alleged in both of the particular cases before us, the new material does not emanate from the

applicant himself, and thus cannot be said to be automatically suspect because it comes from a tainted source. The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, as Mr Nicol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant’s exposure to persecution. If authority is needed for that proposition (see per Lord Bridge of Harwich in Bugdaycay v SSHD [1987] AC 514 at p531F)”. The letter also refers to paragraphs 22 and 23 of the judgment of Toulson LJ in AK (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 535, identifying the mischief of repeated claims seeking to re-open cases without sufficient new cause and stating: “Precisely because there is no appeal from an adverse decision under rule 353, the decision maker has to decide whether an independent tribunal might realistically come down in favour of the applicant’s asylum or human rights claim, on considering the new material together with the material previously considered. Only if the Home Secretary is able to exclude that as a realistic possibility can it safely be said that there is no mischief which will result from the denial of the opportunity of an independent tribunal to consider the material.” 17.

After these citations the letter, as acknowledged by the appellants, again correctly summarises this test in law as follows: “Thus the approach in respect of Paragraph 353 of the Immigration Rules as contemplated by those passages requires us to establish whether the new material has previously been considered and, if not, whether on all the evidence there would be a realistic prospect of success in an appeal to the First Tier Immigration Tribunal, bearing in mind as well the requisite standard of proof and the requirement for anxious scrutiny.”

18.

The letter identifies the materials considered, including the two experts’ reports, the UNHCR Eligibility Guidelines for Assessing International Protection Needs of Afghan Asylum Seekers (2103), UNAMA’s annual report for 2014 (dated February 2015), a study by the Institute for the Study of War of March 2015 and the Home Office’s own Country Information and Guidance of February 2015.

19.

The statements of the Afghan Minister, relied upon by the appellants, were considered but were said not to represent the views of the Afghan government as a whole. Reference was made to evidence provided by the Chargé d’Affaires at the UK embassy in Kabul (Mr R Chatterton Dickson) as to the continued successful return of people to Afghanistan from the UK in 2014. The writer referred to the Upper Tribunal “Country Guidance” case of AK (Article 15©) Afghanistan CG [2012] UKUT 163 (IAC) and made lengthy citation from the Home Office Guidance of August 2014, noting the fluctuating security situation since the decision in the AK case stating that the proportion of civilians directly affected by violence as being low. In the first six months of 2014, the report stated, 0.02% of the population were so affected, as compared with 0.03% in the whole of 2013. The official writing the letter repeated this statistic for the first six months of 2014. It was recognised that the security situation had worsened, but it was said that this situation did not demonstrate that HN would face a real risk of harm if returned to Afghanistan.

20.

The letter referred to HN’s solicitors’ reliance upon the MoU between the UK and Afghan governments and the UNHCR (to which I shall return, on the appellants’ second point, in more detail later) which was claimed to prohibit the return of vulnerable persons, a group to which it had been said HN belonged because of the issues relating to his mental health. The letter then noted that under the MoU the parties were required to afford protection to vulnerable groups on repatriation and to provide medical examination before return. It was said that any physical or psychological illness would be taken into account with regard to the person’s rights under Article 3 and 8 of the European Convention on Human Rights. However, it was said that the MoU did not prohibit the return of individuals with health issues.

21.

Reference is then made to the reports from UNAMA and the Institute for the Study of War (mentioned above and post-dating the Home Office document) pointing to the worsening situation in the country. It was said in the letter that this deterioration was accepted but it was not accepted that this added to HN’s claim other than background to the general country risk.

22.

The writer then turned to the reports from Professor Clayton and Dr Schuster.

23.

In respect of the former, the letter made the points that the sample taken was small and unrepresentative of the broader country material; the methodology was not explained and she made comparison between Kabul and a western city which was not a material comparison.

24.

So far as Dr Schuster’s report was concerned, the letter criticised it on the basis that her reported meeting with the Afghan Minister and his statements did not properly reflect the position of the Afghan government; there were failings in her assessment of the various Afghan provinces and her evidence from the individuals interviewed. In general, the report was thought not sufficiently comprehensive to warrant departure from the assessment made in the AK case. She is also criticised for not stating whether the situation met the threshold required under Article 15© of the Directive. Again the methodology and smallness of the sample of subjects was relied upon in rejecting the claims made.

25.

The conclusion on the country situation, which had been relied upon by Dr Schuster in her report, was:

“It is not accepted that Dr Schuster’s report together with all the other material relied upon, justifies a departure from the findings in AK as to the risk posed to an individual returning to Afghanistan, to the reasonableness and safety of relocating to Kabul, and whether the internal armed conflict in Afghanistan reaches the threshold necessary to engage the UK’s obligations under Article 15©.” 26.

The letter then turned to the medical issue. On this reliance had been placed on a report from a doctor, who had not seen HN in person at all but had expressed an opinion upon his “fitness to fly” (as it was put in the Grounds for Interim relief filed on his behalf). The doctor’s report was based upon HN’s medical records and drew the following conclusion: “From this I conclude that Mr [N] is a disturbed man suffering from mental illness, who in recent weeks has made attempts on his life. He has serious illness which is continuing, in spite of medication. This mental state is currently unstable. It is understood Mr [N] does not want to be removed, and the added stress of a forced removal would be expected to provoke a further deterioration in his mental illness, especially in the light of what his voices are said to have been telling him. Being on a charter flight with others also being forcibly removed could be particularly disturbing for Mr [N], with the risk of group behaviour compounding his anxiety. The standard IATA guidelines indicate that ‘medical clearance is required by the airline’s medical department if the passenger…….(b) because of the ….behavioural condition, is likely to be a hazard or cause discomfort to other passengers’. Specifically in relation to chronic psychiatric disorders, acceptance is only for those who are ‘properly controlled by medication and stable (eg living out in the community taking care of all own needs including medication)’. My professional judgment is that on the evidence available to me it would be wise to assume Mr [N] is not fit to fly because of his mental instability. However, there could be scope for flying with a medical escort, if this were advised by an expert in aviation medicine, as advised by a psychiatrist.” The respondent’s answer to this was this: “Your client’s claimed mental health is not considered to be life threatening. As stated earlier in this letter there is adequate support and treatment should your client need assistance upon his return to Afghanistan. Mental illness is not a barrier to removal and that there is no question of removing anyone who, following assessment from the relevant and appropriate medical authorities is deemed not fit to fly.

We have had regard to Dr Pickles’ report, note that he makes his observations without having seen or met Mr Naziri and we will make our decision on Mr Naziri’s fitness to fly based on an up to date assessment from a medical practitioner who has had the benefit of making an in-person assessment” 27.

The letter then addressed the claims made in respect of HN’s private life and Article 8 of the ECHR. As this issue has not featured with any prominence in the arguments before us, I say no more about it.

28.

The respondent’s letter concluded with a final paragraph which again, as is accepted, applied the correct test that the respondent was required to apply in dealing with the new representations. The paragraph reads as follows: “Your submissions have been considered, both individually and together, along with your client’s previously submitted material, to determine whether there is a realistic prospect of success before an immigration judge. For the reasons already given in our previous letter of 26 January 2015 and for the reasons above it is considered that your submissions on behalf of your client, when taken together with the material previously considered, do not create a realistic prospect of success before an immigration judge. Therefore it is not considered that your submissions on behalf of your client amount to a fresh claim”

SA 29.

In the case of SA, his “Judicial Review Grounds” (so identified in the index to the Core Bundle before us) appear to have been contained in a document headed “Grounds for Interim Relief” dated 9 March 2015. This document relied upon statements of the same Afghan Minister as those relied upon by HN and a letter from Dr Schuster recording her interview with the Minister on 28 February 2015. Also, as in HN’s case, similar references were made to the respondent’s “Country Information and Guidance” of August 2014 which recorded that the security position in Afghanistan had deteriorated. Reliance was placed on a further short reference to a document from the EU “European Asylum Support Office” (EASO) reporting 246 “reported security incidents” in the district of Kabul between January and 31 October 2014. The submission was then made that in the light of this new material the situation of each applicant had to be re-considered to determine whether he can “properly or lawfully” be removed to Kabul in the light of facts as previously found and the previous conclusions as to the risk of breach of Article 3 of the ECHR, whether there was a well-founded fear of persecution in the home area and whether safe relocation to Kabul was possible and whether there were serious obstacles to reintegration, together with a re-assessment of the position under Article 8 of the ECHR.

30.

In SA’s case the respondent’s answers to these representations were given in letters of 23 and 31 March 2015. In the first letter, the immigration history was set out and the results of earlier appeals. It was noted that his appeal rights had become exhausted as recently as 2 March 2015 and reference was made to the new representations from solicitors of 18 March 2015.

31.

The respondent’s lengthy letter of 23 March 2015 (as with the letter of 1 April 2015 in HN’s case) referred to the correct legal test to be applied by the Secretary of State in “fresh claim” cases. Again, I summarise some of the principal points raised.

32.

It was noted that previous findings by the Tribunal in SA’s case included adverse findings as to his credibility. The letter referred to the Afghan Minister’s statements but again stated that those statements should be seen “in the context of developments since that time, including ongoing discussion which has resulted in an agreement to continue with the charter [flight] programme” pending the opening of new negotiations about the MoU. It was noted that successful returns to Afghanistan had been achieved in 2014. Reliance was placed upon the decision in AK (supra). It was stated that more recent materials did not demonstrate that SA faced real risk of harm if returned to Afghanistan.

33.

The writer of the 23 March letter also referred to Dr Schuster’s report of 3 March 2015. In so far as the statements of the Afghan Minister were relied upon, the answer was again that matters had moved on.

34.

Dr Schuster had further referred to the return to Norway of certain individuals removed from that country to Afghanistan; it was said by the respondent in answer that more recent returns of single men had continued to be successful. Dr Schuster’s suggestion that absence of protection noted in some instances was not considered sufficient to risk a breach of Article 3 of the ECHR. With regard to Dr Schuster’s opinion that Kabul might be less unsafe as a return location than others but could not be regarded as secure, the writer indicated that it was not suggested by Dr Schuster that the decision in AK on this issue had become “unreliable”.

35.

On SA’s behalf issues as to his mental health and perceived vulnerability had been raised as an obstacle to his return. The respondent referred to the obligations on the parties under the MoU to take precautions in respect of vulnerable returnees. Health checks would be undertaken and fitness to fly would be taken properly into account. So far as SA’s own mental health was concerned, the respondent noted certain underlying adverse credibility findings made by Immigration Judge Wellesley-Cole in a decision in October 2010. It was asserted that access to medical treatment was possible on a subject’s return to Afghanistan. The letter concluded in paragraph 49 as follows: “Conclusion Your asylum and/or Human Rights claim has been reconsidered on all evidence available, including the further submissions of 18 March 2015 but it has been decided that the decision of 02 August 2014 should not be reversed. The further submissions submitted are hereby rejected. Accordingly it is not appropriate to grant you leave in the UK for the reasons outlined in earlier letters and also above. Furthermore it has been decided that your submissions do not amount to a fresh claim. The new submissions taken together with the previous considered material do not create a realistic prospect of success.”

36.

The respondent supplemented her answer to SA’s assertion of a “fresh claim” in the second letter to SA’s solicitors of 31 March 2015. This letter addressed additional objective material and the reports of Dr Schuster and Professor Clayton that had also been advanced in support of HN’s claims. As is again non-contentious, the letter set out the correct legal tests to be applied and quoted a similar extract from the WM case as that was to be recited in the letter of 1 April to the same solicitors in response to HN’s claims. The substantive responses to the additional material presented were full and in essentially the same terms as given the following day in the reply to HN which I have already summarised above. It is not necessary to say more about them here.

37.

In these circumstances, the respondent rejected the contentions of HN and SA that the further representations made on their behalf amounted to proper “fresh claims” within the meaning of rule 353. (D) The Tribunal’s Decision

38.

The Upper Tribunal was much concerned as to the proper ambit of the proceedings that it had to decide and the range of evidence that it had properly to consider. It was also concerned (as Chapters IV and V of its judgment graphically indicate) that many of the claims before it were likely in any event to call for further consideration by the respondent in the light of new materials. (This last feature of the case is a matter that made this court question whether it was a sensible use of resources to hear the appeals. However, we did so and I move on.) The Tribunal gave consideration to all the evidence produced to it, whether available at the time of the challenged decisions or not: see paragraphs 73 and following of the judgment.

39.

The Tribunal saw the appellants primary case as being based upon the statements of Minister Balkhi and the MoU (“two of the cornerstones of the Applicants’ challenge” and said that “the other elements of challenge” were: “the expert evidence, the UNHCR Guidelines, the various reports of international agencies, the Home Office 2015 Country Information and Guidance publications and sundry witness statements generated on both sides”: see paragraph 94 of the judgment.

40.

With regard to the statements of the Minister, the Tribunal reached the conclusion, on the evidence before it, that these represented the Minister’s personal views and did not reflect the attitude of the Afghan government as a whole. At paragraphs 78 and 79 of the judgment, the Tribunal said: “78. We consider it likely that Minister Balkhi seized the opportunity to broadcast a hard line, in the context of the obvious reality that Afghanistan remains a struggling country with significant economic and other problems and a grossly over populated capital, Kabul. We take judicial notice of the fact that repatriation involves a drain on limited resources. Thus the discouragement of would be repatriating countries is a far from surprising strategy. 79. We further take into account that Minister Balkhi was expressing a personal opinion. This is clear from the terminology of Dr Schuster’s report:

“He is unwilling ……… in the Minister’s view ……” [Our emphasis.] This assessment is readily made from the text. It is reinforced substantially by later evidence. We refer particularly to the witness statements of Mr Chatterton Dickson and, especially, the accounts therein of discussions with other Afghan government members and representatives. Furthermore, subsequent events confound the words spoken by Minister Balkhi, namely the undisputed evidence of actual repatriations and how these unfolded on the ground. This evidence establishes clearly, inter alia, that Afghan nationals have been repatriated to provinces which Minister Balkhi had effective declared “off limits”. It establishes equally clearly that, contrary to Minister Balkhi’s claims, the MOU, as elucidated and supplemented by the surrounding NVs, has continued to govern repatriations.” 41.

The Tribunal gave long consideration to the MoU and the factual contexts in which it operated, together with other “Notes Verbales” (“NVs”) exchanged between the governments, it described the character of this documentation as follows: “88. We consider that the MOU is, at heart, a bilaterally agreed mechanism regulating the practical implementation of the repatriation of Afghan nationals from the United Kingdom to their country of origin. It is a cocktail of highbrow principles and the purely prosaic. It enshrines a series of norms and principles to be applied by the two Governments to the repatriation exercise. It is not overly prescriptive. It is a relatively high level instrument, with its espousal of governing norms and principles and its lack of dense detail. It is clearly designed to provide the two governments with a workable, viable and flexible tool to achieve the aims of efficacious repatriation and, in the words of one of the recitals, the “dignified, safe and orderly repatriation to and successful integration in Afghanistan”, which is clearly one of its overarching purposes.”

Having reached that conclusion, the Tribunal went on to consider whether individuals could seek to invoke its terms in support of personal claims. It concluded that the MoU was “…not simply a bilateral inter-government agreement. Rather, it is also an expression of the policy of the United Kingdom Government relating to the repatriation of Afghan nationals. As such, it has the status of a material consideration which, as a matter of public law, must be taken into account in the case of every proposed repatriation. This we consider to have been the

primary public law obligation imposed on the Secretary of State in making the impugned decisions…. ”: paragraph 89. 42.

The Tribunal decided that there was no evidential basis for concluding that the MoU was not in fact taken into account appropriately. It placed reliance upon an NV of 10 March 2015 which it said “confounded” the appellants’ claims. The NV was quoted and said (with the Tribunal’s emphasis): “…. It was agreed that chartered British flights carrying immigrants from the UK shall be allowed to land at Kabul Airport, unless vulnerable people (children, families, women without a male relative and individuals whose permanent residential areas are insecure) are boarded amongst the returnees.” The Tribunal considered that no illegality or irrationality was shown in the light of these documents and the commitment of the two governments to discussing a revised MoU.

43.

Under a heading “The Paragraph 353 Challenge”, at paragraph 94 of the judgment, the Tribunal concluded that “two of the main pillars” of the challenge to the respondent’s impugned decisions were without foundation. In respect of “the other elements of challenge”, the Tribunal said that it preferred the submissions of Ms Glass (for the respondent) “summarised in [69] – [70]” (in fact [68] and [69]). The paragraphs referred to are lengthy, but the gist of the Tribunal’s summary of Ms Glass’s submissions which were so accepted appear in paragraph 68 (i) to (vii) of the judgment as follows: “i. Particular regard must be had to the recent determinations of the FtT in the Applicants’ cases. This involves in particular acknowledging the lack of novelty in the suggestion that relocating to Kabul is not safe or reasonable, in circumstances where recent country evidence was judicially considered. ii. The lawfulness of the Secretary of State’s most recent decisions withstands scrutiny by reference to the standard of rationality. iii. The Secretary of State’s decisions are consistent with the recognition in the most recent UNHCR guidelines of the internal relocation of single able bodied men and couples of working age to urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life. iv. Professor Clayton’s brief report does not arguably justify a departure from the country guidance promulgated in AK. v. The statements of Minister Balkhi have been considered by the Secretary of State and must not be viewed in isolation from other evidence and events, including the efficacious repatriation

of 24 Afghans from nine provinces pursuant to the charter flight of 11 March 2015. Furthermore, his statements are not supported by UNHCR. vi. The Secretary of State reasonably concluded that, given its limitations, Dr Schuster’s report did not warrant a departure from the assessment of risk in AK. Furthermore, Dr Schuster did not suggest that breaches of Article 3 ECHR or Article 15© of the Qualification Directive would be occasioned by repatriation. More fundamentally, the Secretary of State rationally concluded that Dr Schuster’s assessment of the issue of relocation to Kabul suffers from a series of intrinsic limitations and does not justify a departure from AK. vii. Focusing on the standard of rationality to be applied to the Secretary of State’s most recent decisions, the current country evidence falls well short of sustaining the Applicant’s challenges.” 44.

Drawing the threads together, at paragraphs 95 and 96 of the judgment, the Tribunal said: “95. Within the limitations of a judicial review challenge and the hearing which has taken place we find no warrant for departing from the current country guidance promulgated in AK. In particular, we find that the evidence falls short of satisfying the stringent Article 15© test. 96. The Tribunal is equipped to make a further, ex post facto, assessment of the impugned decisions having regard to the post-decision evidence which it has received. This includes evidence of the successful repatriation of Afghan nationals from the United Kingdom and other countries to a series of provinces. In this context we refer particularly to the evidence digested in [50] above, which we accept. This evidence reinforces our conclusion that the impugned decisions of the Secretary of State are unimpeachable on the grounds advanced by the Applicants.” (E) The Appeal

45.

On the present appeal, Mr Westgate QC for the appellants presented three principal strands of argument. First, he submitted that the Tribunal had been in error in concluding that the respondent had reached a lawful conclusion that there was no proper fresh claim to asylum that had a “realistic prospect of success”, in the sense expressed in the WM case. Secondly, he submitted (in somewhat modified form) the argument presented to the Tribunal that the respondent had acted in breach of established policy in returning (to Afghanistan) these appellants, who were “vulnerable people” within the meaning of a relevant government policy. Thirdly, it was argued that the Tribunal had erred in dismissing the non-lead cases summarily,

without consideration of the independent factual backgrounds of any of them in the light of the new materials presented. 46.

As already indicated, we entertained some doubts at the outset of the hearing as to the usefulness of the appeal proceedings in circumstances in which it was likely that the Secretary of State was going to have to make fresh decisions in each of the present cases in any event. Mr Westgate argued that we should hear the appeal, if for no other reason than that if the Tribunal decision (which he contended to be erroneous) was undisturbed it would constitute the starting point for any fresh decision that the respondent might make in the individual cases. He told us that the Tribunal decision is referred to in the respondent’s current version of her Country Information Guidance, indicating the significance already attached to it in the respondent’s department. On this issue, Mr Blundell for the respondent stated his client’s objection to what he called a “rolling review” of the cases and voiced the ongoing concern in government as to the Tribunal’s decision on the status of the MoU, and related documents, as constituting a “policy” for public law purposes. We decided, therefore, to continue the appeal to the extent of deciding whether the respondent had made a reviewable error on the fresh claims presented.

47.

Mr Westgate, in opening his argument on the Qualification Directive, reminded us of this court’s decision in R (QD Iraq) v Secretary of State for the Home Department [2011] 1 WLR 689 in which the court had applied the interpretation of the Directive stated by the Court of Justice of the European Union in Elgafaji v Staatssecretaris van Justitie [2009] 1 WLR 2100 as follows (in paragraphs 35 and 39): “35. In that context, the word “individual” must be understood as covering harm to civilians irrespective of their identity, where the degree of indiscriminate violence characterising the armed conflict taking place – assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a member state to which a decision refusing such an application is referred – reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat referred in article 15© of the Directive. ... 39. In that regard, the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection.”

48.

In the context of a decision maker’s assessment of the availability of relocation, away from his place of origin, for a person returned to his country of nationality, Mr Westgate referred us to two cases indicating that the test was whether it was reasonable to expect a person to relocate or whether it would be “unduly harsh” to

expect him to do so: the references were to the speeches of Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at paragraph 21 and AH (Sudan) v Secretary of State for the Home Department [2008] 1 AC 678 at paragraph 5. 49.

Mr Westgate referred us to additional passages in these cases amplifying this point, perhaps most pertinently to the submissions addressed to the specific facts of the applicants’ cases, from the UNHCR Guidelines on International Protection (2003) quoted by Lord Bingham in Januzi as follows: “Economic survival The socio-economic conditions in the proposed area will be relevant in this part of the analysis. If the situation is such that the claimant will be unable to earn a living or to access accommodation, or where medical care cannot be provided or is clearly inadequate, the area may not be a reasonable alternative. It would be unreasonable, including from a human rights perspective, to expect a person to relocate to face economic destitution or existence below at least an adequate level of subsistence. At the other end of the spectrum, a simple lowering of living standards or worsening of economic status may not be sufficient to reject a proposed area as unreasonable. Conditions in the area must be such that a relatively normal life can be led in the context of the country concerned. If, for instance, an individual would be without family links and unable to benefit from an informal social safety net, relocation may not be reasonable, unless the person would otherwise be able to sustain a relatively normal life at more than just a minimum subsistence level.”

50.

The country guidance decision of the Upper Tribunal in AK in 2012 was obviously central to the decision making and to the Tribunal’s decision in this case. The overall conclusions in the AK case as to the applicability of the Article 15© threshold in Afghanistan in general, and in Kabul in particular, are well known (see paragraphs 198-199 and 243 of the judgment), Mr Westgate referred us to paragraph 248 where the Tribunal said this: “The future situation Whilst we have reached our assessment of country conditions in Afghanistan so far as they relate to Article 15© so as to make a forward-looking assessment of risk based on the present evidence, we cannot overlook the fact that the current overall trend is one of rising levels of violence now over several years, even if relatively gradual. Nor can we overlook that although we consider the planned departure of most of the NATO and international troops in 2014 is not reasonably likely to leave a security vacuum, this departure obviously gives rise to more unknowns about what is likely to happen than otherwise. Hence it seems to us that whilst the guidance we give will continue to

have validity for the immediate future, we will need to keep the situation in the country under careful review over the next few years.” 51.

It was Mr Westgate’s submission that the situation appearing from the fresh material, presented on the appellants’ behalf to the respondent, demonstrated that the time had now come for the “careful review” of which the Tribunal had spoken in AK and that, in this case, the Tribunal should not have accepted the submissions of Ms Glass that such material did not justify a departure from the findings in the AK case. He pointed to paragraph 32 of the Tribunal’s own judgment in this case as indicating (in his submission) on the facts a clear and significant increase in the numbers of civilian casualties in 2014, in comparison with the figure in 2013.

52.

It was further argued that some of the principal reasons given in AK for holding that the Article 15© threshold had not been crossed had subsequently been undermined. Mr Westgate called in question the calculations made in the HN decision letter as to level of casualties in percentage terms with reference to the Home Office Guidance document of August 2014. The guidance and the letter referred to a casualty percentage in the first 6 months of 2014 of 0.02% or 1 in 5000. It was argued that this broad figure did not take into account regional variations nor, in particular the situation in HN’s home area of Alishang (in Laghman province) which was described as one of the “most volatile” in the EASO paper. The argument continued (as summarised in paragraph 27a. (ii) of the skeleton argument) as follows: “The UNAMA report (cited by the Respondent at B/Vol 1/40/1.1.10) suggests that 70% of the security incidents are in the East, South East and Southern Provinces. The combined population of these provinces is 8,019,300 (EASO figures) and if casualties are distributed in the same way as security incidents then the average casualty rate in 2014 for these provinces as a whole would be 0.092%. This is close to the 0.1% to which the Tribunal in AK attached significance and it is obvious that in some areas at least the level of casualties in the southern region almost tripled in 2014 as compared to 2013”.

53.

While not ignoring the other features relied upon by the appellants on this aspect of the case, the argument presented to us is neatly summarised in paragraph 27 e. of the skeleton argument as follows: “The general security situation in Afghanistan had deteriorated to a far greater degree than that which had been anticipated by the tribunal in AK. At §211 the Tribunal in AK considered that while the state was ineffective to protect its citizens, the presence of international forces provided “sources of immediate physical protection and assistance”. The Tribunal recognised that the international forces would leave in 2014 but considered that resources being put into the Afghan National Security Force (ANSF) meant that “even if the ANSF does significantly less well post-2014 at providing security, there will not be a security vacuum”. The material presented to the Respondent and the UT showed that the overall trend is one of

decreasing government control outside the larger town and cities. The ANSF “lacks requisite capacities as a counterinsurgency force”. They are increasingly “confined to their bases and security checkpoints, unable or unwilling to go out on patrol and the community. This leaves the Taliban free to provide its own forms of government in the countryside”. The Respondent’s own CIG accepts that “In general, the state is unable to provide effective protection.”” 54.

Addressing the issue of re-location away from more dangerous areas of the country to Kabul, the appellants argued that the population of the capital has grown tenfold in 10 years, without the city’s infrastructure being capable of providing for such an increase, giving rise to significant difficulties for new arrivals seeking to integrate there: (c.f. the criteria emerging from Januzi and AH (supra)). There were, it was argued, real problems, particularly for young men without social networks capable of producing living support and employment opportunity. Even those compulsorily returned to Afghanistan, it is said, faced risks of attack because of perceived “westernization”: see the appellants’ skeleton argument paragraphs 28 to 36.

55.

It was argued that all this was insufficiently assessed by the respondent and that, accordingly, “No reasonable Secretary of State could fail to conclude that the new material…satisfied the fresh claim test”: skeleton argument, paragraph 37. It was said that the respondent failed to appreciate that there was a realistic prospect that the AK case ought no longer to be recognised as authoritative country guidance on the current situation in Afghanistan.

56.

In this regard, Mr Westgate embarked upon detailed criticism of the respondent’s decision letters which I have sought to summarise above. For example, it was said that in the letter of 1 April 2015 (HN) had failed to consider properly Article 15© of the Directive and had applied the wrong test with regard to medical evidence in addressing the fitness of the person concerned to fly rather than HN’s vulnerability owing to his mental health issues. Before moving on, I would say immediately on these two points that the 1 April letter seems to me to address the points raised in the letters of 3, 5 and 6 March from HN’s solicitors and the enclosures, in the terms in which those materials were advanced. I can find no reference to Article 15© in any of the three letters and the medical report provided was framed precisely in terms of the question of whether HN was or was not fit to fly: see the quotation from the report in the original “Grounds for Interim Relief” of 9 March 2015, paragraph 21, already quoted above.

57.

It is true that the arguments advanced by the appellants became more refined and relied upon more detailed submissions in the course of the proceedings below (e.g. in the Amended Grounds and in the skeleton arguments), but it seemed to me that Mr Westgate’s criticisms of the detailed decision letters of late March and 1 April 2015 were somewhat unfair in attacking the decision letters on the basis of later materials. All that aside, in considering my conclusions on the decisions in the next section of this judgment, like the Tribunal, I will try to address the criticisms of the decisions in the light of all the arguments.

58.

Mr Westgate criticised the decision letters in their approach to the expert reports of Professor Clayton and Dr Schuster, saying that the criticisms were (in reality)

statements of the respondent’s own views of them, rather than an assessment of how the reports might be regarded by a hypothetical Tribunal considering the new material, together with the old, in assessing whether or not a true fresh claim was being made. He argued that before a new Tribunal the experts would have the opportunity to answer criticisms that were made of their reports. The respondent ought, therefore, to have considered more carefully the part that such evidence played in considering whether a realistic prospect of success before a new Tribunal might exist. 59.

Further, it was submitted that, in the concluding passage of its judgment on the rule 353/fresh claim issue, in paragraph 95 the Tribunal made a similar mistake, as that said to have been made by the respondent, in asking themselves the question whether the Article 15© threshold had been crossed, rather than asking whether the Secretary of State in her decisions had reached a rational conclusion in applying the test set out in the WM case to the new claims advanced.

60.

The second main point on the appeal was the issue of the alleged “policy” arising out of the MoU and the contention that the respondent had failed to follow that policy in directing the return of these appellants to Afghanistan.

61.

As noted already, the argument on this part of the case shifted ground considerably from that which was advanced before the Tribunal. In the arguments below the appellants were contending (and the Tribunal found) that relevant policy, properly to be considered by the Secretary of State in cases such as this, was to be found in the MoU and related NVs. This finding gave rise to considerable consternation in government that documents recording understandings between this country and foreign sovereign states could give rise to domestic judicial review rights based upon the international instruments themselves. The result was that a volume of authorities (beginning with JH Rayner (Mincing Lane) Ltd v Department of Trade & Industry [1990] 2 AC 418) was prepared for us in order to address arguments upon the status and role of international treaties and other instruments in domestic law. However, on the appeal, the appellants focused their arguments, not upon the MoU itself, but upon policy derived from an Operational Guidance Note (“OGN”) within the respondent’s department, rather than upon the international documents themselves.

62.

The appellants did not seek to uphold the Tribunal’s decision in paragraphs 88 and 89 of the judgment as to the status of the MoU as independent statements of policy to be considered by the respondent in decision-making of the present character. Instead, the argument was advanced on the OGN. Parts of this document clearly had origins in the fact that the UK government had reached understandings in the MoU. However, the document is simply a statement of domestic government operational policy and the revised argument was not required to trespass on the delicate field of foreign relations.

63.

With this more modest objective, Mr Westgate argued that the Appellants were entitled to be regarded as “vulnerable persons” who should not be compulsorily removed to Afghanistan under the OGN.

64.

We were directed to a number of isolated passages in the OGN document. However, the most material passages for present purposes were those at paragraphs 6.1 and 6.4 on page 39 of the document as follows:

“6. Returns 6.1 There is no policy which precludes the enforced return to Afghanistan of failed asylum seekers who have no legal basis of stay in the United Kingdom. … 6.4 The preferred option for repatriating those Afghan asylum applicants who having exhausted the independent appeal process, are found not to need international protection is assisted voluntary return. This policy is in line with the Tripartite Memorandum of Understanding on Voluntary Return, between the UK, the UNHCR and the Afghan Transitional Administration. However, as agreed with the Afghan authorities, from April 2003 those not choosing voluntary return and found to be without protection or humanitarian needs have been liable to be considered for enforcement action although those individuals or groups identified as vulnerable are excluded from the programme of enforced returns. All Afghans returned by charter operation from the UK are given immediate post arrival assistance including temporary accommodation and onward transportation if required, and offered access to a reintegration programme which includes vocational training and business support options.” Mr Westgate referred to the passage at paragraph 6.4 to the words, “…as agreed with the Afghan authorities…”, which he said hinted at the existence of some other documents, but he told us that those instructing him had been informed that there was no further documentation. 65.

Proceeding upon the basis of the OGN, it was argued that the respondent had to form a view, in the case of each person potentially to be removed to Afghanistan, as to whether he or she was “vulnerable” within the terms of this paragraph of the OGN.

66.

In the course of this submission Mr Westgate took us to the NVs, to some of the reported statements of Minister Balkhi and to the statement of Mr ChattertonDickson, the Chargé d’Affaires, on the state of negotiations between the governments upon the MoU. However, the crux of the submission was that in the decision letters there was no reference to any consideration of whether the appellants were “vulnerable” persons within the terms of the OGN. However, the letter of 1 April 2015 (for example) included the following passages, referring to the MoU: “Finally, you have referred to the acceptance criteria as expressed by Minister Balkhi, specifically that the MOU prohibits the return of (a) women; (b) children; © those with mental health problems, and (d) those from dangerous provinces because they will not be permitted entry upon arrival. Firstly, it is noted that your client is a single adult male, therefore neither (a) nor (b) apply.

… With regards to ©, the MOU does not expressly prohibit the return of individuals suffering from mental health problems, rather it places specific obligations on behalf of the contracting parties to the MOU to take additional steps in ensuring the wellbeing of individuals returning either voluntarily or enforced. For example: PARAGRAPH 12 Special Measures for Vulnerable Groups The Participants will take special measures to ensure that vulnerable groups receive adequate protection, assistance and care throughout the repatriation and reintegration process. In particular, measures will be taken to ensure that unaccompanied minors are not retuned prior to successful tracing of family members or without specific and adequate reception and care-taking arrangements having been put in place in Afghanistan. And PARAGRAPH 15 Health Precautions The UK government will ensure that all Afghans returning under this MoU are provided with a basic medical examination prior to their repatriation and given the opportunity, if necessary, of access to medical care in the United Kingdom, in the circumstances where no previous health check had been carried out whilst persons have been in the United Kingdom, or if some time has elapsed since contact with health services. Furthermore, vaccinations will be provided by the UK Government prior to repatriation, where considered necessary by the UK Government” Mr Westgate argued that no adequate consideration had been given, in the context of the policy, to the appellants’ provincial origins, the state of HN’s mental health or to SA’s position as someone who had been an unaccompanied minor on entry to the UK. 67.

Turning to the non-lead cases, Mr Westgate argued that the Tribunal had been wrong and had acted unfairly in failing to give independent consideration to these cases in which applications for permission to apply were also before it. Each case, he submitted, had independent factual considerations and the findings in the lead cases could not be simply “read across” into the others. The Tribunal had been wrong, therefore, simply to dismiss the applications for permission to apply for judicial review.

68.

Finally, the appellants also raised an issue with regard to the contents of the judicial headnote to this case, composed for the Tribunal’s official written and published decision. I hope that I may be allowed to deal with that issue as a “footnote” to my

present judgment, since it clearly did not found any arguable ground of appeal for the benefit of the appellants. 69.

Turning to the arguments of Mr Blundell for the respondent, he emphasised, first, that the test that the Tribunal had to apply was whether the respondent’s decision had been a rational one in the Wednesbury sense. He submitted (uncontroversially, of course) that the test for the respondent to apply was the one articulated by Buxton LJ in the WM case: the starting point for the decision-maker, therefore, was to assess the new material himself and then to ask its likely effect on the hypothetical Tribunal judge hearing a fresh claim. This exercise, he submitted (secondly), inevitably required the decision-maker to form and express his own views on what had been presented. That was a necessary starting point in the exercise. The court should not, therefore, be over exacting in its demands as to how a decision is expressed, if it is clear (as here) that the decision-maker is applying his mind to the correct test in law. He argued, thirdly, that the appellants were, in effect, advancing an ambitious claim that the only rational decision that could have been reached was that there was a clear case giving rise to a fresh claim that the Article 15© threshold had been crossed in Afghanistan in the light of the new material.

70.

I note in passing that Mr Blundell, in support of this third submission, referred us briefly to cases in the European Court of Human Rights, in which judgments had been handed down on 12 January 2016, involving claims of breaches of Article 3 of the Convention by Afghan nationals who had been high-ranking officers in the former Afghan army or intelligence service. Mr Blundell invited us to note an apparently robust approach against these claims adopted by the Strasbourg court. He referred us to only one of these cases in any detail: AGR v The Netherlands (no. 13442/08). The particular passages relied upon were in paragraphs 54 and 59 of the judgment as follows: “54. ... The mere possibility of ill-treatment on account of an unsettled situation in the requesting country does not in itself give rise to a breach of Article 3. Where the sources available to the Court describe a general situation, an applicant’s specific allegations in a particular case require corroboration by other evidence, except in the most extreme cases where the general situation of violence in the country of destination is of such intensity as to create a real risk that any removal to that country would necessarily violate Article 3. ... 59. The Court has next examined the question whether the general security situation in Afghanistan is such that any removal there would necessarily breach Article 3 of the Convention. In its judgment in the case of H. and B. v. the United Kingdom, (cited above, §§92-93), it did not find that in Afghanistan that was a general situation of violence such that there would be a real risk of ill-treatment simply by virtue of an individual being returned there. In view of the evidence now before it, the Court has found no reason to hold otherwise in the instant case.”

71.

For my part, however, I did not consider that these relatively sparse remarks by the court were of any significant assistance with the issues before us.

72.

Mr Blundell’s main point was that it was clear from the decision letters that the respondent correctly directed herself as to the law and that the appellants’ criticisms were largely directed to the writer’s manner of expression. He argued that there was little more that the decision-maker could say in showing a conscientious application of the WM test in long and conscientiously detailed letters which addressed the specific material that the solicitors had presented. He argued that the appellants’ arguments might have had force but for the impeccable self-directions that appeared at the beginning and at the end of the letters in these cases. As it was, he argued, the letters were unimpeachable.

73.

Mr Blundell addressed the criticisms made by Mr Westgate of the respondent’s approach to the new material. He submitted that the respondent was justified in identifying flaws in that material. He argued that the various objective reports recognised that there was a deterioration in the security position in Afghanistan, but when one looked at detailed figures (without seeking to be callous) the variations were in fractions of 1%. There were, he argued, real deficiencies in the reports of the experts when related to the facts of the specific cases which the respondent had to consider. To point out those deficiencies was the foundation of explaining why the respondent had taken the rational view that the material as a whole did not afford the relevant “realistic prospect of success” required by rule 353.

74.

Turning to the policy point and the MoU/OGN. Mr Blundell opened by saying that the appellants’ lack of “appetite” for the Tribunal’s decision as to the status of the international documents supported the submission that the respondent now made that it was plainly wrong. He was anxious to state the respondent’s contention on this point, although it no longer arises in the light of the new way in which the argument was presented in this court.

75.

On the OGN itself, Mr Blundell stressed paragraph 6.1 of the document, quoted above, which makes it clear that there is no policy precluding enforced returns to Afghanistan. He accepted that the test for vulnerability was an objective one, but that it was a matter to be decided by the respondent, subject only to challenge on a Wednesbury basis. He argued that particular categories of the “vulnerable” had been identified and the understanding of the term had to be taken in that context. He pointed to various further passages in the document in which categories or types of vulnerability were identified. Without reciting the paragraphs, he referred to paragraphs 2.2.16-17, 2.3.3-4, 2.3.10, 3.12.10. These passages particularly addressed the situation of unaccompanied women and children. He argued that vulnerability in other contexts would be addressed but a specific case would have to be made by the individual applicant. Mr Blundell submitted that the references by Mr Westgate to the MoU/NV material were not appropriate tools for the construction of the domestic policy, but in any event the evidence of Mr Chatterton-Dickson indicated that appropriate action under the MoU was still being taken to protect those returned.

76.

Mr Blundell submitted that, in these individual cases, no vulnerability within the meaning of the OGN had arguably been raised. The respondent had addressed HN’s mental health issues, which had only been raised in the context of his fitness to fly, and the relative youth of SA had got nowhere as a true badge of vulnerability.

(F) My conclusions on the arguments 77.

Underlying the appeal there has been a vast array of factual material, international reports and expert evidence. In the arguments both written and oral it has been impossible to refer to more than selected extracts. That is why it is important, in my judgment, to concentrate firmly upon the correct legal issues that fell/fall to be addressed by the respondent in her decisions, by the Tribunal on the judicial review claims and by this court respectively.

78.

All are agreed that the task for the respondent was that identified in the WM case, the relevant passage in the judgment having been already quoted above, I will not repeat it. The test for the Tribunal was whether the respondent had reached an unlawful conclusion in deciding that the appellants had no realistic prospect of success in their respective fresh claims. Subject to Mr Westgate’s argument that the Tribunal addressed the wrong question in paragraphs 95 and 96 of the judgment, the Tribunal decided that the respondent’s decisions were not unlawful. Our task is to review the Tribunal’s decision, not to re-hear the case that was before it: CPR 52.11(1). An appeal will be allowed if, on such a review, the court decides that the lower court’s decision was wrong or unjust: CPR 52.11(3).

79.

All this is to state the obvious, but it is important in the present case, however, because it seems to me that it is not the function of either the Tribunal or this court to enter into a detailed examination of the security situation in Afghanistan. This is not that, as human beings, we are not concerned by the dangers faced by many in that troubled country, but because the court is not adequately equipped to make factual judgments about them and it is not our role in these proceedings. Our task, at its root, is to assess the lawfulness of the conclusion reached by the Tribunal as to the lawfulness of the respondent’s decisions in the individual cases, in the context of the appellants assertions that they faced dangers entitling them to subsidiary protection within the meaning of the Qualification Directive.

80.

Assuming that limited task, it seemed to me clear that the parties were quite correct in asserting and accepting that the decision-maker in each case had correctly identified the test which the law required him/her to apply. The decision-maker in each case set out that test in full in each of the important letters in the case. The letters then proceeded to address the material presented. The bona fides of the assessments of the points raised is not in question. In the end, the argument turned in reality into a dispute as to whether, in making the assessment of those points, the decision-makers had turned their backs on the lawful test that they had identified and had simply decided whether or not they themselves accepted the arguments raised on the appellants’ behalf.

81.

Mr Westgate, for example, criticised the comments made by the decision-makers upon the reports of Professor Clayton and Dr Schuster and argued that those comments showed that decision-makers were making up their own minds about the cogency of the reports, rather than asking what the hypothetical Tribunal judge would make of them.

82.

During the course of the hearing and in preparing my judgment, I have considered whether Mr Westgate’s argument was another example of defective decision making of the type criticised by this court in R (TK) v Secretary of State for the Home

Department [2009] EWCA Civ 1550. In that case, the decision letter had concluded with a brief statement of the test to be applied. It had said this: “Anxious scrutiny has been given to the decision in LP and the effect it has on your client’s case, but it has been determined that the findings by the Tribunal in LP in addition to the most recent country information, when taken together with material previously considered in your client’s case, would not create a realistic prospect of success before an immigration judge.” However, the statements in earlier parts of the letter indicated fairly clearly that the writer was stating his/her own view of the claims rather than assessing what a Tribunal might find. My Lord, Laws LJ, said this: “We are required to approach these matters with anxious scrutiny albeit consistently with the public law test limited by the Wednesbury rule. In this case it seems to me that the Secretary of State has not given reasons why in her view the appellant would enjoy no realistic prospect of success before the AIT. If realistic prospect of success means only a prospect of success which is more than fanciful, the Secretary of State has not made it clear that she has adopted that approach. But in relation to reasons Mr Kovats sought to defend the letter by submitting in effect that proper reasoning on the realistic prospect issue may be supplied by paragraphs in the letter earlier than the critical passage at paragraph 21. That, I think, will not do. The Secretary of State’s earlier reasoning goes to her overview of the new representations, and it is as it happens to be noted that the decision letter omits express reference to the detention and ill treatment of which complaint was made. In my judgment the standard of reasoning on the second but critical issue arising under Rule 353 was not supplied in the Secretary of State’s decision letter in this case.” 83.

In my judgment, the same cannot be said of the decision letters here. The writers have spelled out the test at the outset and have said what they see as significant deficiencies in the material in support of a fresh international protection claim and have ended up by concluding that for the reasons given the claims would not create a reasonable prospect of success before an immigration judge. I consider that Mr Blundell was right in his submission that it is difficult to see what more the writers could have said. It could hardly have been right to say, after each point had been considered, that the specific point would not present a realistic prospect before a judge. It was not the individual points that mattered but the amalgam of them. I agree with Mr Blundell’s submission that the decision-makers’ assessment of the appellants’ points should properly be read as their assessment of the hypothetical judge’s likely reaction to those points in the round, leading to an overall conclusion that the material as a whole did not present a realistic prospect of success before such a judge.

84.

In his reply, Mr Westgate said that the decision letters were flawed because they should have expressly identified the points that would be in favour of the appellants’ cases and that the fact that cogent criticism could be made of some of the material was

not enough to demonstrate that the cases had no realistic prospect of success. I do not accept these points. It seems to me that nothing could have been served by reciting again the points that were being made by the appellants. The respondent was endeavouring to state her reaction to those very points. Further, as I have said, the respondent was giving reasons why she had concluded that there were no realistic prospects of success. The challenge has to be to the rationality of the conclusion not as to its correctness or otherwise. 85.

One can agree with the respondent’s stated decisions or not, but, in my judgment, it is not possible to say that those decisions were irrational in the light of the test that the letter-writers identified both at the beginning of the exercise and at the end of it. Equally, one must approach the decision-letters fairly and as a whole; criticisms of infelicity of expression do not take one very far.

86.

I found myself in some initial sympathy with Mr Westgate’s submission that at the very end of its judgment (in paragraphs 95 and 96) the Tribunal may have strayed into language suggesting that it too was making its own decision on the merits, rather than testing the lawfulness of the respondent’s decision. However, in the end, I do not think that that was the case. That appears from the Tribunal’s reiteration of its own paragraph 67 (in paragraph 94) and the adoption of Ms Glass’s submissions which seem to me to have been properly embedded in the correct test in law.

87.

I have reached the conclusion that both the respondent and the Tribunal made a fair assessment of the AK decision and of whether or not it had been fundamentally overtaken by the materials more recently presented. It seems to me that each were assisted by what the Tribunal in AK had found the overall country conditions to be; they had then considered the evidence and accepted that there had been some deterioration, which each then recognised and took into account. Each then properly considered the cases of the appellants in the light of the new material and weighed up those cases under Article 15 of the Qualification Directive.

88.

I turn to the “policy” issue which I consider can be addressed relatively shortly.

89.

It seems to me that the appellants’ arguments on this point made no progress. In my judgment, there was not a glimmer of a case that the respondents’ decisions had failed to have proper regard to any true vulnerability on the part of either of these appellants. The decisions quite properly addressed such submissions as had been made to the respondent and needed to go no further. There was nothing in the subsequent material to suggest that the decisions had been flawed in any way. The OGN indicated that the respondent had a policy requiring proper regard to be had to vulnerability, particularly to women and children, but to others as well. There was nothing to suggest that the particular vulnerabilities of each appellant, such as they might be, were not and would not be taken into account at the time when each was to be returned to Afghanistan.

90.

In short, I accept Mr Blundell’s submissions on this issue which I have already summarised above.

91.

For these reasons, I would dismiss the appeals by HN and SA. (G) The “Non-Lead” cases

92.

I have reached the conclusion that the Tribunal cannot be criticised in the decision that it reached on these cases in view of the common ground that they would have to be the subject of new decisions by the respondent in any event. The matters of principle, as had to be accepted, were resolved by the Tribunal and those would have to be properly taken into account in making the new decisions, in the light of the facts of the individual cases. Moreover, it seems that when judgment was handed down in draft in the Tribunal these applicants were asking for deferral of adjudication on their applications for permission to apply for judicial review until after further representations and further decisions on their cases by the respondent: see paragraph 103 of the judgment. In the circumstances, I can well see why the Tribunal should consider that the permission applications should be dismissed. I do not consider that the decision in this respect can be faulted.

93.

I would dismiss the appeals in the non-lead cases also. (H) Footnote on the headnote

94.

In the appellants’ skeleton argument (paragraphs 66 and following) criticisms are raised by counsel as to the form of the headnote (of the Tribunal’s own composition) that appears in the reported version of the judgment. The headnote reads as follows: “(i) It is intrinsically undesirable that judicial review proceedings be transacted in circumstances where material evidence on which the Applicants seek to rely has not been considered by the primary decision maker. (ii) There is a strong general prohibition in contemporary litigation against rolling review by the Upper Tribunal in judicial review proceedings. (iii) Where a judicial review applicant is proposing to make further representations to the Secretary of State in circumstances where a new decision will forseeably be induced, it will normally be appropriate, to refuse permission or to dismiss the application substantively on the ground that it will be rendered moot and/or an alternative remedy remains unexhausted and/or giving effect to the prohibition against rolling review. (iv) The principles rehearsed above are to be similarly applied to applications for permission to appeal to the Court of Appeal.”

95.

The appellants submit that paragraphs (iii) and (iv) above do not reflect the decision in the case. It is also argued that such headnotes should only give a summary of the decision rather than any general directions in respect of future cases. It is also argued that the note is also unduly prescriptive of the attitude to future cases, not justified by the decision itself.

96.

For my part, I do not consider it appropriate for this court to say much (if anything) about these submissions. I would confine myself to observing that it is obviously

correct that a headnote should summarise the decision of the court or Tribunal and no more. I would not wish to make any further comment. (I) Suggested Outcome 97.

For the reasons given in sections (F) and (G) above, and in the circumstances set out in the earlier sections, I would dismiss these appeals.

Lord Justice Laws: 98.

I agree

Lord Justice Floyd: 99.

I also agree.

Case No: C5/2015/1401 Neutral Citation Number: [2016] EWCA Civ 137 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER IA246822013 Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/03/2016 Before : LORD JUSTICE LEWISON LORD JUSTICE BEATSON and LADY JUSTICE SHARP ——————–Between : Secretary of State for the Home Department - and Muhammad Amjid Khan

Appellant Respondent

—————————————-Samantha Broadfoot (instructed by Government Legal Department) for the Appellant Zane Malik (instructed by AWS Solicitors) for the Respondent Hearing date: 24 February 2016


Judgment

Lord Justice Beatson : Introduction 1.

The respondent, Muhammad Amjid Khan, now aged 34, applied to remain in the United Kingdom as a Tier 4 (General Student) on 20 February 2012. In a letter dated 15 August 2012, the UK Border Agency informed him that the licence of the sponsoring college named in his application had been revoked on 23 May 2012. After the decision in Patel (revocation of sponsor licence – fairness) India [2011] UKUT 00211 (IAC), the Secretary of State had introduced a policy to notify those in the position of Mr Khan and to suspend consideration of their applications for 60 days to enable them remedy the problem. The letter dated 15 August 2012 gave Mr Khan this opportunity. It stated inter alia that it was open to him “to obtain a new CAS for a course of study at a fully licensed Tier 4 educational sponsor and then submit an application to vary the grounds of your original application”. Mr Khan did this on 9 October 2012 but his application was refused by the Secretary of State on 13 May 2013 because on 9 October he did not satisfy the requirements of the Immigration Rules as to maintenance funds.

2.

An appeal by Mr Khan to the First tier Tribunal succeeded, and one by the Secretary of State to the Upper Tribunal was dismissed. The Secretary of State now appeals to this court with the permission of Sales LJ.

3.

The issue before the court is whether, in Mr Khan’s circumstances, all he was required to do was, as the tribunals decided, to submit a further application with a new CAS from a fully licensed sponsor and that it sufficed that the other mandatory requirements of a Tier 4 (General Student) application in particular the ability to show proof of sufficient funds to maintain himself during the course, were satisfied at the time of the original application. It is submitted on behalf of the Secretary of State that, when he submitted his application in October 2012, he also had to fulfil those other mandatory requirements. For the reasons given at [38] – [50] below I accept the Secretary of State’s submission and would allow her appeal.

The legal framework 4.

For the purposes of this appeal, the Immigration Rules (“the Rules”) are of primary relevance. It is, however, appropriate to start by referring to section 3C of the Immigration Act 1971. That provision deals with applications by those with limited leave to remain in the United Kingdom for “variation of the leave”: section 3C(1)(a). It provides (section 3C(1)(b), 3C(2)) that where “an application for variation” is made before the existing limited leave expires, the leave is extended by virtue of the section pending a decision on the application for variation and any appeal against a decision refusing it. Leave so extended by section 3C lapses where the applicant leaves the United Kingdom.

5.

The relevant provisions of the Rules, as they stood at the material time, are paragraphs A34 and 34A, 34C, and 34E. Paragraph A34 requires applications to be made either by completing the relevant online application process or by using the specified application form in accordance with paragraphs 34A – 34D. Paragraph 34A provides, among other things, that the application must be accompanied by documents specified as mandatory in the form and notes, and paragraph 34C provides that an application

that does not comply with the requirements in paragraph 34A will be invalid and will not be considered. The heading to paragraphs 34E and 34F is “Variation of Applications or Claims for Leave to Remain”. They provide: “34E – If a person wishes to vary the purpose of an application or claim for leave to remain in the United Kingdom and an application form is specified for such new purpose or paragraph A34 applies, the variation must comply with the requirements of paragraph 34A or paragraph A34 (as they apply at the date the variation is made) as if the variation were a new application or claim, or the variation will be invalid and will not be considered. 34F – Any valid variation of a leave to remain application will be decided in accordance with the Immigration Rules in force at the date such variation is made.” 6.

Paragraph 34G is headed “Determination of the date of an application or claim (or variation of an application or claim) in connection with immigration”. It makes explicit provision for this in the case of applications sent by post (date of posting), those submitted in person (date of acceptance at a UKBA Office), online applications (date of submission), and courier (date of delivery).

7.

Appendix C to the Rules deals with maintenance funds. Paragraph 1A(a) states that an applicant must have the funds specified in the relevant part of the Appendix “at the date of the application”. In the case of those applying as Tier 4 migrants, the applicants must have had the funds “for a consecutive 28 day period of time”: see Appendix C, paragraph 1A©. Sub-paragraph (h) of paragraph 1A states that the end date of the 28 day period “will be taken as the date of the closing balance on the most recent of the specified documents” and “must be no earlier than 31 days before the date of application”. The amount of the funds required depends on the course fees, the length of the course, whether it is in or out of London, and whether the applicant is a person with “an established presence” in the United Kingdom.

8.

The material part of the guidance for Tier 4 students issued as a result of the decision in Patel (pp.62 – 63 of version 06/12) states that, where a sponsor’s licence is revoked while an application by a student is under consideration, the CAS becomes invalid but: “If the student was not involved in the reasons why the Tier 4 sponsor had their licence revoked, we will delay the refusal of his/her application for 60 days to allow the student to regularise his/her stay or leave the UK. The action a student can take to regularise his/her stay in the UK depends on what leave he/she has: … If the student’s permission to stay has expired while he/she was awaiting a decision on his/her application, we will delay the refusal of his/her application for 60 days to allow the student to obtain a new Confirmation of Acceptance for Studies

from a different sponsor and vary their application or leave the UK. …” The factual background 9.

Mr Khan, a Pakistani national, arrived in the United Kingdom on 28 September 2010 with a visa valid until 21 February 2012. On 20 February 2012, he made an application for further leave to remain as a Tier 4 (General Student) migrant. He sought to undertake a course of study at Lincoln’s College London, at that time a registered licensed sponsor, and he provided the proof of sufficient funds to maintain himself during the course during the relevant 28 day period. Since Mr Khan made his application a day before his existing leave expired, section 3C of the Immigration Act 1971 operated to extend his leave.

10.

As I have stated, on 23 May 2012 the UK Border Agency revoked Lincoln’s College’s licence. The effect of that was that Mr Khan’s CAS from that college became invalid and his application was bound to fail because no points could be awarded for the CAS.

11.

When the UKBA came to consider Mr Khan’s application, in accordance with the post-Patel policy guidance, in its letter dated 15 August 2012 it stated that it would suspend consideration of his application for a period of 60 days. The material parts of this letter stated: “During this 60 day period it is open to you [to] withdraw your application and submit a fresh application in a different category or to leave the United Kingdom. If you do decide to withdraw your application, you will need to confirm this by writing to us at the address given at the top of this page. However, if you wish to remain in the UK as a Tier 4 student it is open to you to obtain a new CAS for a course of study at a fully-licensed Tier 4 educational sponsor and then submit an application to vary the grounds of your original application. If you decide to do this, you will need to find a new Tier 4 educational sponsor, who will need to issue you with a new CAS. In order to assist you in obtaining a new CAS, we have enclosed with this letter an information leaflet which … explains to [any potential new sponsors] that you have an application outstanding … ” The letter as enclosed a certified copy of Mr Khan’s passport, which any new sponsor would need to see. It then stated (in bold type): “Important – please note: … If you obtain a new CAS, then you will need to submit fresh and up-to-date documents with your application to vary, for example, bank statements showing you are in

possession of sufficient funds to cover your course fees and the maintenance requirement. You will also need to complete a fresh Tier 4 (General) application form – the most up-to-date version of this form is available on the UKBA website at [link given].” 12.

Mr Khan submitted a fresh Tier 4 (General) application form together with a new CAS from a new college, Edward’s College, and bank statements spanning the period between 8 September and 5 October 2012. The financial information submitted showed that between 12 and 26 September the amounts in the relevant account were no more than £21 and thus below the £1,600 required to support the application. If the relevant 28 day period required by Appendix C was 8 September to 5 October 2012 and not the period before the original application, it is accepted that Mr Khan could not meet the financial requirements.

13.

In a letter dated 30 May 2013, the UKBA stated on behalf of the Secretary of State that Mr Khan’s application dated 20 February 2012 was refused under the Immigration Rules. The reason for the refusal was that the Secretary of State was not satisfied that the documents provided demonstrated that Mr Khan possessed the required level of funds for the 10 points for maintenance.

14.

On 17 January 2016, while this appeal was pending, Mr Khan left the United Kingdom voluntarily. In one sense the issues then became moot. Had the appeal been by him, the effect of his departure would have been that it would have been automatically abandoned as a result of the operation of section 104(4) of the Nationality, Immigration and Asylum Act 2002. In the case of an appeal by the Secretary of State, however, the court continues to have jurisdiction to determine the appeal. In this case, at a time when it appeared that the respondent would not be represented, the Secretary of State stated that, in view of the importance of the issue, she wished this court to determine the appeal and give a reasoned judgment.

15.

We have been assisted by and are grateful to Miss Broadfoot, on behalf of the Secretary of State. We are also grateful to Mr Malik, who was instructed on behalf of Mr Khan very shortly before the hearing. He put before the court a number of cases, to some of which I will refer later in this judgment, which at the hearing Miss Broadfoot accepted contained statements which were adverse to the Secretary of State’s case. It is not suggested that the omission by the Secretary of State to refer to the cases was anything other than an oversight. But we would observe that it is important where it appears that only one side will be before the court in an appeal that all relevant material is put before the court by that party. It is particularly important that this happens where that party is a department of the State, which has an overview of the area as a whole and constitutional responsibility for the legal position in that area. The FtT and UT decisions

16.

Mr Khan successfully appealed to the First-tier Tribunal. In a written determination on the papers in Glasgow dated 26 February 2014, the FtT held that since the Secretary of State was prepared to exercise a degree of flexibility in relation to the CAS document, it appeared unfair that she did not extend that flexibility to other

outstanding information which she considered important. The decision also stated that it seemed unfair that the Secretary of State did not ask Mr Khan to produce up-to-date information if it was required for his application, and it seemed to the FtT judge that she had shifted the goalposts. I observe that this gave no weight to the statement in bold on the letter dated 15 August 2012 that I have set out earlier, or to the fact that Mr Khan did in fact provide up-to-date information. 17.

The Upper Tribunal dismissed the Secretary of State’s appeal on 3 July 2014. UT Judge Lane stated that the policy guidance did not state that an applicant who was submitting a new CAS after the revocation of the licence of the original sponsoring institution was required to submit fresh maintenance documents, and did not refer to any sanction from a failure to provide up-to-date financial evidence when providing a new CAS.

18.

The UT judge set out the provisions of paragraphs 34E – 34I of the Immigration Rules and (at [12]) noted that paragraph 34E refers to varying “the purpose of an application or claim for leave to remain … ”. He stated that “on the most obvious construction of the rule, the present appellant did not seek to vary the ‘purpose’ of his application, which has throughout remained the same (that is, to remain as a Tier 4 (General) migrant).” He did not consider that the words of paragraph 34E could mean that, by seeking to change the educational provider with whom the person intends to study, the applicant was varying his application. He concluded that, notwithstanding the language in the letter dated 15 August 2012, Mr Khan was not required to “vary” his application in any manner which brought his application under the provisions of paragraph 34 of the Immigration Rules and that the “60 day” concession was one provided wholly outside the context of the rules so that they did not compel a person in Mr Khan’s position to comply with financial or other requirements, both at the date of the initial application and at the date of the new CAS form.

19.

The UT judge also stated, on the basis of Pankina [2010] EWCA Civ 719, that, while the Secretary of State can grant a concession outside the Immigration Rules ameliorating harsh consequences on matters which are wholly outside the control of an applicant, it is not lawful for her to impose upon a applicant stricter conditions than those contained in the Immigration Rules. Accordingly, although for reasons that were different to those given by the FtT, the UT held that there was no error of law by the FtT by allowing Mr Khan’s appeal. The grounds of appeal

20.

Miss Broadfoot submitted that the UT made three errors of law. The first is that it was wrong, as a matter of interpretation, to conclude that only further applications which change the “purpose” of an application amount to variations within the meaning of the Immigration Rules and section 3C of the Immigration Act 1971.

21.

Secondly, Miss Broadfoot argued that the UT’s conclusion is contrary to the decision of this court in JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78. In that case submissions on behalf of the Secretary of State that a narrow interpretation be given to the term “variation” in section 3C of the 1971 Act were rejected. She submitted that the meaning of “variation” in section 3C is relevant in considering the meaning of paragraphs 34E – 34I of the Immigration Rules.

22.

Miss Broadfoot accepted that there are statements in authorities put before the court by Mr Malik (see [30ff] below) which support giving a different meaning to the words “vary” and “variation” in paragraphs 34E – 34I of the Immigration Rules. She submitted that the context of those cases was different to the present case because they were concerned with attempts by applicants for leave to provide further information of a sort which, under the Rules, is required to be available at the time of the application and not later. They did not concern a relaxation of the requirements of the Rules by the Secretary of State to enable an applicant to deal with a problem that was unknown to him, in no way his fault, and remediable by him. She also relied on the statement in Patel’s case itself (at [21]) that the where an application has been made, the applicant “may vary that application by substituting a new college sponsor” on which she relied but she is not assisted by that because the Upper Tribunal’s decision did not refer to paragraph 34 of the Rules and appears to be solely concerned with section 3C of the 1971 Act.

23.

The third ground of appeal is that the UT’s interpretation did not take into account, and in fact undermines, the public policy objective reflected in the Rules of ensuring that a person making an application for leave to remain as a student provides evidence showing that at the time of the application to be considered he has sufficient funds to maintain himself. Discussion

24.

The resolution of the issue before the court involves consideration of three key phrases in the 1971 Act and the Rules. The first is “variation of the leave” in section 3C of the 1971 Act. The second is “variation of the purpose of an application” in paragraph 34E of the Rules. The third is the term “the date of the application” in paragraph 1A(a) of Appendix C to the Rules and the closely related phrase “the date of an application or claim (or variation of an application or claim)” in paragraph 34G of the Rules. Mr Malik’s defence of the approach taken by the tribunals has three limbs. The first rests on the difference between the wording of section 3C and paragraph 34E. The second rests on authority, in particular the decision of this court in Raju, Khatel and others v Secretary of State for the Home Department [2013] EWCA Civ 754, [2014] 1 WLR 1768, which he submitted bound this court. He also relied on what he contends is the proper construction of “the date of the application” in paragraph 1A(a) of Appendix C. He maintains that can only refer to the date of the original application in cases where paragraph 34E does not apply. The third limb of his submission is policy. Mr Malik, relying on the decision in Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568 at [40] and [43], submitted that the Rules should not be construed narrowly in order to resolve an ambiguity in favour of the Secretary of State. This is because, in his words, the Secretary of State holds all the cards and makes the Rules, and can and often does change them.

25.

It is clear from JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78 that “variation” of leave in section 3C of the Immigration Act 1971 has a wide meaning. The result is that a broad category of applicants will have their leave continued pursuant to that provision pending a decision on their application for variation of their leave: see especially [35] – [37]. Richards LJ, with whom Laws and Wall LJJ agreed, also rejected the emphasis by the tribunal in that case on the purpose for which an application is made. He stated (at [37]) that “it is difficult to see why a difference in purpose should determine whether one application is capable of

amounting to a variation of another”. He considered that, even where an application is for a different purpose from that of the existing leave, as a matter of language there was no reason why it should not also be treated as a variation of the first application. He rejected the submission that a variation can only arise where a later application is for the same purpose but with different details. He also stated (at [39] that it “makes good sense to adopt an approach towards variations that will allow decisions to take account of any relevant change of circumstances since the first application was made, whether the change is one of detail or affects the capacity in which the applicant seeks leave to remain …”. 26.

The Tier 4 guidance 06/2012 which deals with the position where a Tier 4 sponsor’s licence is revoked explicitly states that the refusal of an application in these circumstances will be delayed for 60 days to allow the student to obtain a new CAS from a different sponsor and to vary their application. The language used, varying an application, is in broad terms the language of section 3C.

27.

I return to paragraph 34E of the Immigration Rules which I have set out. Its heading is “Variation of applications or claims for leave to remain”. Its material words are that “if a person wishes to vary the purpose of an application” and an application is specified for such new purpose or paragraph A34 applies, the variation “must comply with the requirements of paragraph 34A or paragraph A34 (as they apply at the date the variation is made) as if the variation were a new application or claim …” (emphasis added). If paragraph 34E applies in Mr Khan’s circumstances, the variation must comply with the requirements at the date it is made “as if it were a new application”. If this is so, it follows that the Secretary of State’s appeal must succeed.

28.

Mr Malik submitted that paragraph 34E does not apply and that the wide meaning given to the phrase “variation of the leave” in section 3C in JH (Zimbabwe) is not apt for paragraph 34E. Had the Secretary of State wished the meaning to be the same, the language of the Rules would have tracked that of the statute. He submitted that the ordinary meaning of the phrase “vary the purposes of” in paragraph 34E is narrower than “variation of the leave” in section 3C. He submitted that the use of the word “purpose” in other parts of the Rules when describing the different “tiers” through which individuals can apply assists in understanding its meaning in paragraph 34E. He referred to the headings “Purpose” in Rule 245B and C, “purpose of this route” in paragraphs 245ZI and 245ZT, “purpose of this route and meaning of ‘business’” in paragraph 245F, and “purpose of these routes and definitions” in paragraph 245ZM.

29.

The argument is thus that the intent of the rule-maker when formulating paragraph 34E must have been to give the word “purpose” the same meaning as it has in paragraphs 245B-D, F, H, ZI, and ZT of the Rules. Mr Malik submitted that the consequence is that paragraph 34E requires the formality of a full reapplication for a narrower category of case than those that qualify as variations under section 3C. He argued that the Rules, unlike section 3C, make a distinction between a change as to the category in which a person seeks to remain, for example as an entrepreneur or a spouse rather than a student, and a change of the details of an application within a single category. In the first type of case, paragraph 34E requires a full reapplication. In the second, it does not. He did not consider that the words of paragraph 34E could mean that, by seeking to change the educational provider with whom the person intends to study, the applicant was varying the purpose of his application. Since Mr

Khan’s purpose remained to obtain leave as a Tier 4 (General) Student he did not have to make a full reapplication. 30.

As to the authorities, Mr Malik relied on Raju, Khatel and others v Secretary of State for the Home Department [2013] EWCA Civ 754, [2014] 1 WLR 1768, which he submitted bound this court, and statements in Mansoor Ali v Secretary of State for the Home Department [2013] EWCA Civ 754 1198, the permission decision in Rasheed v Secretary of State for the Home Department [2014] EWCA Civ 1493, and the decisions of the Upper Tribunal in Qureshi (Tier 4 – effect of variation – App C – Pakistan) [2011] UKUT 00412 and Nasim and others (Raju: reasons not to follow?) [2013] UKUT 610. Before considering the decisions of this court in Raju, Khatel and others, Mansoor Ali, and the meaning of “the date of the application” in paragraph 1A(a) of Appendix C of the Rules, I summarise the other statements relied on by Mr Malik.

31.

In Nasim and others at [58] and [62] the Upper Tribunal stated that “one can vary an application made for a specified purpose by changing details whilst not altering that purpose” and that “by referring to variation of the purpose of an application, the drafter at paragraph 34E must be taken to acknowledge that there may be variations that do not amount to change of purpose”. In Rasheed’s case at [22] Moore-Bick LJ stated that the scope of paragraph 34E is more limited than that of paragraph 34F. In Qureshi’s case at [35] the Upper Tribunal stated it was satisfied that varying an application for leave to study at Empire College London by substituting Birmingham City University as the course provider “was for the same purpose, which was to remain in the United Kingdom in order to pursue studies”. Only the last of these statements is inconsistent with the Secretary of State’s position in the present case.

32.

Mr Malik also submitted that where paragraph 34E does not apply there is nothing in the Rules making the date of the request to vary the date of the application “the date of the application” in paragraph 1A(a) of Appendix C to the Rules and thus the relevant date. He argued that Raju, Khatel and others and the other decisions to which I have referred (at [30] above) show that the making of an application is a fixed historic event and cannot be varied by furnishing additional materials later and preclude paragraph 1A(a) being read to mean “the date of the application or any subsequent variation of that application”. His case is that Raju, Khatel and others and Mansoor Ali v Secretary of State for the Home Department [2013] EWCA Civ 1189 at [9] – [11] show that making an application is what he described as a “fixed historic event” and that the requirement in Appendix C of the rules that an applicant must have the funds specified “at the date of the application” is a reference to the date of the original application, in this case 2 February 2012.

33.

All the cases referred to at [30] except Qureshi’s case involved the effect of the closure of the category of Tier 1 (Post-Study Work) leave which enabled those who had studied in the United Kingdom as Tier 4 students to acquire a limited period of post-study professional or practical experience. In Hossain v Secretary of State for the Home Department [2015] EWCA Civ 207 This court applied Raju, Khatel and others and (at [36]) approved of the approach in the Nasim cases and the Rasheed cases. Mr Malik argued that the submissions made on behalf of the Secretary of State in this appeal are directly contradictory to those successfully made on her behalf to prevent applicants for Tier 1 (Post-Study) status providing their qualification after they had made their application. It is therefore necessary to explain the issue in those cases.

34.

In order to earn the 15 points that were a necessary component of the points required for the Tier 1 (Post-Study Work) category, paragraph 245FD and the fourth box of Table 10 of Appendix A to the Immigration Rules provided that the application had to be made “within 12 months of obtaining the relevant qualification”. The effect of the announcement in March 2011 that the category was to be closed as from 6 April 2012, but applications made before that date remained eligible for consideration under it was that many of those who were studying for bachelors or postgraduate degrees applied for the post-study work category shortly before 6 April 2012 and before they had been formally awarded their degree. Many studied at teaching institutions which did not themselves award degrees but where another university or college validated and awarded the degree.

35.

The time lag in considering applications meant that before decisions on their applications were made the applicants had obtained the degree certificate from the awarding university and submitted it to the UKBA. They argued that they had complied with paragraph 245FD and Appendix A because the Upper Tribunal had held that an application was to be treated as “continuing” and still open until the date on which it was decided. Accordingly, a person who obtained the relevant qualification before the date of the Secretary of State’s decision was entitled to the points for the attribute, in this case the qualification. The tribunal decisions so holding were overruled in Raju, Khatel and others. This court held that subsequently obtained evidence could not cure a defect in the application at the date it was made.

36.

Moses LJ recognised that, although allowing applications which anticipated the award of a necessary qualification did not undermine the purpose of the policy of requiring those seeking to use the, by then revoked, Tier 1 (Post-Study Work) route, the wording of the relevant paragraph of Appendix A setting out the required attributes plainly required the applicant to make the application within 12 months of obtaining the relevant qualification and thus after obtaining it. He stated (see [12] and [13]) that strict compliance was required with the time period, in the same way as with the requirement to have a specified minimum level of personal savings in a specified period prior to the date of the application. He also stated (at [24]) that “an application is made when paragraph 34G says it is made”, i.e. the date of posting or the date on which it is accepted by an office of the UKBA. It followed that the quality of the application had to be appraised at the date of the application and not at the time when the Secretary of State made her decision on it: see at [13] per Moses LJ, citing the statement of Sedley LJ in Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719, [2011] QB 376 at [39]. Mr Malik submitted that it followed that, absent any provisions in the Rules modifying the relevant date, such as that in paragraph 34E, “the date of the application” is a reference to the date of the original application, in this case 2 February 2012.

37.

I accept that in the light of the statements in the Nasim and the Rasheed cases “varying the purpose” in paragraph 34E has a narrower meaning than “variation of the leave” in section 3C. It does not, however, follow that it has the meaning for which Mr Malik contends. It also does not necessarily follow that, if paragraph 34E does not apply to Mr Khan’s case, an applicant in his position is not required to fulfil the other requirements of the Rules as at the date of the variation. The answer to that question depends on the meaning of “the date of the application” in paragraph 1A(a) of Appendix C to the Rules.

38.

Mr Malik put his submissions attractively and concisely, but I have concluded that they should be rejected. For the reasons in the following paragraphs, I do not consider that the use of the word “purpose” in paragraph 34E of the Rules has the effect for which he contended. I have concluded that paragraph 34E applies to the circumstances of Mr Khan’s case so that the requirements of the Rules apply “as if the variation were a new application or claim”.

39.

My starting point in determining the meaning of the word “purpose” in paragraph 34E is the approach to the interpretation of the Immigration Rules. In Mahad v Entry Clearance Officer [2009] UKSC 16, [2010] 1 WLR 48. Lord Brown of Eaton-underHeywood stated (at [10]) that “the rules are not be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy.”

40.

The submission that “purpose” refers to the different routes by which a person may obtain leave in the Rules in my judgment departs from the natural and ordinary meaning of the word. Moreover, it does not reflect the way that changes to the Rules are in fact made. It is a feature of the Rules that they are constantly changing as the Secretary of State’s policy changes or because, in the words of counsel representing her in another case, she “has had to play ‘catch-up’ to address problems that had manifested themselves in the practical operation of the system” (R (Global Vision College Ltd) v Secretary of State for the Home Department [2014] EWCA Civ 659 at [14]) or revealed by previous decisions. The architecture of the Rules is not the grand design of Lutyens’ Delhi or Haussmann’s Paris, but more that of the organic growth responding to the needs of the moment that is a feature of some shanty towns. Moreover, as Miss Broadfoot stated in reply, the separate tiers in the Rules do not each reflect a separate purpose in a uniform way. For example, one of the Tier 2 categories includes general migrants, ministers of religion, and sportsperson migrants.

41.

Secondly, while Mr Malik is entitled to rely on the difference in the language of paragraph 34E and its use of the term “purpose”, during the hearing it was not easy to find a principled distinction between an application to “vary the purpose” of leave and an application to vary the details of leave. A change in the address of the applicant or of name (for example, upon marriage) can be seen not to involve a variation in the “purpose” of the leave. However, while a variation of an application to remain in the United Kingdom as a Tier 4 (General Student) may not involve a variation in the general purpose – to pursue an educational course – it may involve a change in the proposed subject of study, the institution, and the dates of the course, and thus in the particular purpose.

42.

An applicant who varies an application for leave to pursue an architecture course at a particular university by substituting a medicine course at the same or a different university is, in my judgment, in the ordinary sense of the term, varying the purpose of his application, even if he falls within the same Tier of the Points-Based System in the Rules. Such a variation may have an impact on the length of the course (and thus of the leave sought), its cost (and thus the level of financial resources required to be demonstrated), and the starting date. All of these will, as Miss Broadfoot pointed out, be material in the assessment of an application by the Secretary of State. The date of a course and its duration are of particular relevance because of the need to show that one is able to support oneself in the relevant period.

43.

Assessing an application by reference to historic information that relates to a different course at a different institution will in general be unsatisfactory, and sometimes incoherent and irrational. Although (see [47] below) there will inevitably be a time lag between an application and a decision, where an applicant is given the opportunity to provide some up to date information without which his application is doomed to fail, it makes no sense to require the Secretary of State to assess it in all other respects by reference to historic information, and to award points on the basis of such historic information.

44.

Thirdly, the statements in the cases which appear to support giving the word “vary” a narrower meaning in the context of paragraph 34E must be seen in their context. Raju, Khatel and others was not about “variation” in the sense used here, but about the point in time when there had to be compliance with a requirement. Although the statement from Qureshi quoted at [31] above appeared to support Mr Malik’s submission, in that case the Secretary of State did not (see [22]) take the point that a variation by applying for a different course at a different institution was an application for a different purpose. Moreover, the narrow meaning given to “purpose” did not affect the result in that case because the tribunal stated (at 36]) that the relevant date for determining the points to be awarded “is the date of the most recent variation”.

45.

Fourthly, the reason that an applicant for Tier 4 (General Student) status is given the opportunity to submit a new CAS from a different sponsor in a case such as this is the unfairness of refusing his application automatically as a result of the revocation of the original sponsor’s licence where that factor was unknown to him or her in the way explained in Patel’s case. It is to be observed that, even where the problem is unknown to an applicant, it is not always the case that flexibility will be given within the rule-based system. Flexibility will not, for example, be required either under the Rules or the common law principle of fairness where a problem is caused by a mistake on the part of the sponsor which is unknown to the Secretary of State: see EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517 at [24] and [40].

46.

Mr Malik’s submissions do not recognise that the “Patel” scenario and the policy in guidance 06/12 in substance operates as an exception to what he described as the “fixed historic event” nature of an application. It does not do so by treating the application as “continuing” in the way rejected by this court in Raju and the other cases. It does so by treating it as a new application made at the date of posting or when it is accepted at a UKBA public enquiry office. There can, as Richards LJ stated in JH (Zimbabwe) at [35], only be one application at a time.

47.

Finally, I have concluded that the considerations of principle and/or policy on which both Mr Malik and Miss Broadfoot relied support giving a broad meaning to the term “purpose” in paragraph 34E. That produces greater symmetry between the 1971 Act, where a broad approach has been taken, and the Rules. It also gives effect to the general policy objective, which is to ensure as far as possible that a person seeking to remain in order to pursue a course of studies can adequately support and maintain himself or herself at the time of the studies. It is true that, because of the time lag between an application and the date of decision, by the latter date the evidence submitted in support of the application may be out-of-date and the individual may by then not have the means to support himself or herself. It would, however, be impractical, if not impossible, for the Secretary of State to require an update to the

position at the point when she is in fact considering an application without subjecting what is already a lengthy process because of the numbers of applications involved to significant further delay. The genesis of the flexibility and the opportunity introduced by the guidance as a result of the decision in Patel’s case was fairness. There is, in my judgment, no unfairness in requiring a person who is given the opportunity to submit a new CAS also to show that, at that time, he or she meets the relevant financial requirements. 48.

I referred at [24] above to Mr Malik’s submission based on the decision in Pokhriyal. The difficulty with his argument that if the Secretary of State wished to ensure that all the other requirements of Tier 4 (General Student) status were satisfied at the time the new CAS was submitted, she should have changed the Rules to make this clear is that it does not recognise that it was only because of the departure from the strict provisions of the Rules and the flexibility introduced by the policy guidance 06/12 as a result of the decision in Patel that the applicant is given an opportunity to submit a new valid CAS and “to vary the application”. The result is, in a sense, a carve-out from the Rules in favour of an applicant who cannot comply with them in order to remove a particular unfairness. When given the opportunity to submit a new valid CAS, it was made clear to Mr Khan that he should submit up-to-date financial information to show that he met the financial requirements for his new course at the material time. It is difficult to see what principle is being violated by requiring this.

49.

The broad approach taken by Richards LJ in JH (Zimbabwe), refusing in the passages to which I have referred to distinguish alternations of details from alterations of purpose and stating that both are variations is conducive to more satisfactory results than the approach for which Mr Malik contended. To the extent that the different wording of paragraph 34E means that a distinction is to be drawn between “details” and “purposes”, the latter term should be given its ordinary meaning and not a narrow meaning.

50.

On the basis that paragraph 34E applies, it is clear from its heading that it is concerned with “variation of application”, and from the text that there must be compliance with the requirements as they apply at the date the variation is made “as if the variation were a new application or claim”. “At the date of the application” in paragraph 1A(a) of Appendix C must be read accordingly.

51.

In view of my conclusion that paragraph 34E applied to Mr Khan’s case, it is not necessary to decide what the position would have been had it not, or to consider Miss Broadfoot’s alternative argument. She accepted that where paragraph 34E did not apply there would be a gap in the Rules in the sense that they make no express provision for what the date of the application that has been varied is to be. But she submitted that when construing the Rules the court should have regard to the fact that it would be absurd to say that “the date of the application” in paragraph 1A(a) Appendix C is the date of the original application. That she argued would undermine the policy of requiring those who commence courses of study to have sufficient means to do so. There would also, she argued, be a difficulty in the operation of paragraph 34F, which does not use the term “purpose” but states that any valid variation of leave will be decided in accordance with the rules in force at the date such variation is made. In a case where the effect of the change of institution or course means that the financial requirements are changed, she maintained that is a strong

pointer to the relevant time being the date of the variation in the way the tribunal in Qureshi’s case decided. 52.

There is force in these arguments, but whether they mean that, where paragraph 34E does not apply, despite the absence of express provision there is in fact no gap or lacuna in the Immigration Rules is a matter to be decided on another occasion. I observe only that, if there is such a gap, it is not for this court to fill it. The Rules are the Secretary of State’s statement of her current policy. It is for her to decide whether, and if so, how to deal with any gap. As Mr Malik stated, she has ample power to change the Rules and to do so by a process which is relatively straightforward. Conclusion

53.

For the reasons I have given, I have concluded that the variation of Mr Khan’s application by the provision of a new CAS issued by a new educational provider and possibly with a course of different length and starting at a different time, fell within paragraph 34E because it was a variation of the purpose of his application for leave. Although the concept of “variation” within paragraph 34E may be narrower than that in section 3C because of the use of the word “purpose”, the word “purpose” should not itself be given a narrow or technical meaning. Accordingly, when Mr Khan submitted his application and the new CAS in October 2012, he also had to fulfil the other mandatory requirements in the Rules and the Secretary of State’s appeal should be allowed.

Lady Justice Sharp: 54.

I agree.

Lord Justice Lewison: 55.

I also agree.

Neutral Citation Number: [2016] EWCA Civ 154 Case No: C1/2014/4190 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE QUEEN’S BENCH DIVISION ADMINISTRATIVE COURT MR JUSTICE DOVE CO39742014 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/03/2016 Before : THE MASTER OF THE ROLLS LORD JUSTICE McCOMBE and LORD JUSTICE DAVID RICHARDS ——————–Between : WATCH TOWER BIBLE & TRACT SOCIETY OF BRITAIN & OTHERS - and THE CHARITY COMMISSION

Appellant

Respondent

—————————————-Richard Clayton QC and Lee Parkhill (instructed by Sharpe Pritchard LLP) for the Appellant Iain Steele (instructed by Litigation and Review Team) for the Respondent Hearing date: 10/02/2016


Judgment

Judgment Approved by the court for handing down.

Watch Tower Bible v Charity Commission

Master of the Rolls: 1.

The appellants are a registered charity (“Watch Tower”) and its trustees. The respondent (“the Commission”) is the statutory regulator and registrar of charities in England and Wales under the Charities Act 2011 (“the 2011 Act”). The Commission wishes to investigate concerns in respect of Watch Tower regarding safeguarding of vulnerable beneficiaries, in particular children who are subject to or make allegations of sexual abuse by individuals who are connected with Jehovah’s Witness congregations.

2.

On 27 May 2014, the Commission initiated an inquiry under section 46 of the 2011 Act to investigate inter alia (i) Watch Tower’s handling of safeguarding matters, including the creation, development, substance and implementation of its safeguarding policy; and (ii) the administration, governance and management of the charity by the trustees and whether or not the trustees have fulfilled their duties and responsibilities as trustees under charity law.

3.

The Commission’s decision to initiate the inquiry (“the Inquiry Decision”) arose out of three criminal trials against former members of congregations of Jehovah’s Witnesses in respect of historic sex offences. I should say that none of these was connected with Watch Tower.

4.

On 20 June 2014, the Commission issued a Production Order under section 52 of the 2011 Act (“the Production Order”) requiring Watch Tower to produce: “(a) All documents created on or after 1 June 2011 setting out or recording an instance or allegation of, or complaint about, abuse of or by a person who is or has been a member of the charity or a congregation charity. (b) All documents created on or after 1 June 2011 setting out or recording a request for advice and/or guidance from a congregation charity and/or charity trustee, officer, agent or employee of a congregation charity that relates to an instance or allegation of, or complaint about, abuse of or by a person who is or has been a member of the charity or a congregation charity. ©

All documents created on or after 1 June 2011 setting out or recording advice and/or guidance provided by and/or on behalf of the charity to a congregation charity, and/or a charity trustee, officer, agent or employee of any congregation charity; and that relates to an instance or allegation of, or complaint about, abuse of or by a person or persons who is or has been a member of the charity or any congregation charity.

(d) All minutes of any meetings of the charity, its staff and/or its members, other than minutes of charity trustees’ meetings, held since 1 June 2011 in which the following matters have been discussed: i. Policies and practice for safeguarding persons who come into contact with the charity and/or any congregation charity.

Judgment Approved by the court for handing down.

Watch Tower Bible v Charity Commission

ii. Any instance or allegation of, or complaint about, abuse of or by a person or persons who is or has been a member of the charity or any congregation charity; iii. Policies and practice for the internal disciplinary proceedings of the charity and any congregation charity, including but not limited to disfellowship proceedings.” These proceedings 5.

The appellants seek judicial review of (i) the decision to initiate the inquiry and (ii) the Production Order.

6.

In relation to the Inquiry Decision, their case is that the proposed inquiry is unlawful on the grounds that (as summarised in their skeleton argument): “(1) the Commission is interfering and/or is proposing to interfere with the Appellants’ rights of freedom of religion under Article 9 under the Human Rights Act and freedom of association under Article 11 by commencing an inquiry with a view to changing Jehovah’s Witnesses’ and Appellants’ religious practices, and is acting disproportionately and/or is acting disproportionately by misconstruing or misapplying s16.4 of the Charities Act 2011; (2)

the scope of the inquiry is so vague and undefined that it breaches the Appellants’ Article 9 and/or 11 rights because the restrictions placed on it are not ‘prescribed by law’ and/or in breach of the Commission’s obligation under s16.4 of the 2011 Act to act transparently in performing its functions;

(3)

the Commission is acting unlawfully in proposing that the Appellants’ Safeguarding Policy include a condition that any Elder running a Bible class must be cleared through an appropriate checking system similar to the Disclosure and Barring Service which is unlawful and/or impossible for the Appellants to implement;

(4)

the Commission has breached the Appellants’ right not to be discriminated against in breach of Article 14 and/or its obligation to act consistently under s16.4 of the Charities Act in performing its functions and/or in breach of the common law principle of consistency;

(5)

the Commission has erred in law in its approach to the duties of Trustees by misconstruing or misapplying the duties owed by the Appellants under the Companies Act 2006;

(6)

the Commission has breached its duty to act fairly by failing to provide proper details of the allegations it is making and thereby giving the Appellants a fair opportunity to meet the case against it; and

(7)

in the circumstances the decision to initiate the inquiry was irrational.”

Judgment Approved by the court for handing down.

7.

Watch Tower Bible v Charity Commission

In relation to the Production Order, their case is that it too is unlawful in that (quoting again from their skeleton argument): “(1) the scope of the Order is disproportionate;

8.

(2)

the information sought requires the Appellants to produce documents containing personal information and sensitive personal information as defined by the Data Protection Act 1998; and unless the data subject consents to his personal data being processed, the conditions in Schs 2 and 3 require the public authority to demonstrate that processing is ‘necessary’ and proportionate: see the Supreme Court in South Lanarkshire Council v Scottish Information Commissioner [2013] 1 WLR 2421….; and

(3)

the information sought breaches the procedural guarantees of Article 8 rights because prior to disclosure, the person adversely affected must be given notice and the opportunity to make representations before the order was made: see R(TB) v The Combined Court At Stafford [2007] 1 WLR 1524.”

On 12 December 2014, Dove J refused the appellants permission to apply for judicial review on the sole ground that the appellants should have appealed to the First-tier Tribunal (“FTT”). The judge did not adjudicate on the substantive issues.

The issues arising on the appeal 9.

Two issues are raised by the appeal. The first is whether the FTT has power to provide an effective and convenient remedy in relation to the appellants’ complaint that the Inquiry Decision was unlawful. The argument before us has focused on the particular complaint that the proposed inquiry is too broad and disproportionately interferes with their religious beliefs and practices contrary to articles 9 and 11 of the European Convention on Human Rights (“the Convention”). The second issue is whether the jurisdiction exercisable by the FTT under section 320 of the 2011 Act to entertain an appeal against a section 52 production order includes a power to address a complaint that the order is unlawful.

10.

By a Respondent’s Notice, the Commission seeks to uphold the decision of Dove J on the additional basis that the appellants have no arguable grounds for seeking judicial review anyway.

The statutory framework 11.

The “general functions” of the Commission are described in section 15(1) of the 2011 Act. They include: “3. Identifying and investigating apparent misconduct or mismanagement in the administration of charities and taking remedial or protective action in connection with misconduct or mismanagement in the administration of charities.”

12.

Its “general duties” are described in section 16. They include:

Judgment Approved by the court for handing down.

Watch Tower Bible v Charity Commission

“4. In performing its functions the Commission must, so far as relevant, have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be proportionate, accountable, consistent, transparent and targeted only at cases in which action is needed)” 13.

Section 46(1) provides that “the Commission may from time to time institute inquiries with regard to charities or a particular charity or class of charities, either generally or for particular purposes”.

14.

Section 52 confers on the Commission the power to call for documents. It provides: “(1) The Commission may by order – (a) require any person to provide the Commission with any information which is in that person’s possession and which – (i) relates to any charity, and (ii) is relevant to the discharge of the functions of the Commission or of the official custodian; (b) require any person who has custody or control of any document which relates to any charity and is relevant to the discharge of the functions of the Commission or of the official custodian— (i) to provide the Commission with a copy of or extract from the document…”

15.

Section 319 provides: “(1) Except in the case of a reviewable matter (see section 322) an appeal may be brought to the Tribunal against any decision, direction or order mentioned in column 1 of Schedule 6. (2)

Such an appeal may be brought by-(a) the Attorney General, or (b) any person specified in the corresponding entry in column 2 of Schedule 6.

(3)

The Commission is to be the respondent to such an appeal.

(4)

In determining such an appeal the Tribunal(a) must consider afresh the decision, direction or order appealed against, and (b) may take into account evidence which was not available to the Commission.

Judgment Approved by the court for handing down.

(5)

Watch Tower Bible v Charity Commission

The Tribunal may(a) dismiss the appeal, or (b) if it allows the appeal, exercise any power specified in the corresponding entry in column 3 of Schedule 6.”

16.

Section 320 provides: “(1) Section 319(4)(a) does not apply in relation to an appeal against an order made under section 52 (power to call for documents). (2)

On such an appeal the Tribunal must consider whether the information or documents in question(a) relates to a charity; (b) is relevant to the discharge of the functions of the Commission or the official custodian.

(3)

17.

The Tribunal may allow such an appeal only if it is satisfied that the information or document in question does not fall within subsection (2)(a) or (b).”

Section 321(1) provides: “(1) An application may be made to the Tribunal for the review of a reviewable matter. (2)

Such an application may be made by(a) the Attorney General, or (b) any person mentioned in the entry in column 2 of Schedule 6 which corresponds to the entry in column 1 which relates to the reviewable matter.

(3)

The Commission is to be the respondent to such an application.

(4)

In determining such an application the Tribunal must apply the principles which would be applied by the High Court on an application for judicial review.

(5)

The Tribunal may— (a) dismiss the application, or (b) if it allows the application, exercise any power mentioned in the entry in column 3 of Schedule 6 which corresponds to the entry in column 1 which relates to the reviewable matter.”

Judgment Approved by the court for handing down.

18.

Watch Tower Bible v Charity Commission

Section 322 provides: “(1)

In this Chapter references to reviewable matters are to(a) decisions to which subsection (2) applies, and (b) orders to which subsection (3) applies.

(2)

This subsection applies to decisions of the Commission(a) to institute an inquiry under section 46 with regard to a particular institution; ……”

General principles concerning alternative remedies to judicial review 19.

These principles are not in dispute and can be summarised briefly. If other means of redress are “conveniently and effectively” available to a party, they ought ordinarily to be used before resort to judicial review: per Lord Bingham in Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465 at para 30. It is only in a most exceptional case that a court will entertain an application for judicial review if other means of redress are conveniently and effectively available. This principle applies with particular force where Parliament has enacted a statutory scheme that enables persons against whom decisions are made and actions taken to refer the matter to a specialist tribunal (such as the FTT (General Regulatory Chamber) (Charity)). To allow a claim for judicial review to proceed in circumstances where there is a statutory procedure for contesting the decision risks undermining the will of Parliament; see per Mummery LJ in R (Davies) v Financial Services Authority [2003] EWCA Civ 1128, [2004] 1 WLR 185 at paras 30 and 31; per Lord Phillips MR in R (G) v Immigration Appeal Tribunal [2004] EWCA Civ 1731, [2005] 1 WLR 1445 at para 20; and per Moore-Bick LJ in R (Willford) v Financial Services Authority [2013] EWCA Civ 677 at paras 20, 23 and 36. I would also refer to the helpful and comprehensive summary of the relevant principles by Hickinbottom J in R (Great Yarmouth Port Co Ltd) v Marine Management Organisation [2013] EWHC 3052 (Admin) at paras 35 to 72.

The first issue: the decision to initiate the Inquiry 20.

The case advanced by Mr Richard Clayton QC is as follows. Where an application for a review is made under section 321 against a decision to initiate an inquiry under section 46, the powers of the tribunal are confined to a stark choice of either dismissing the application or exercising the “power to direct the Commission to end the inquiry” (see column 3 of Schedule 6). This restrictive remedial power is to be contrasted with the wider remedial powers conferred on the tribunal in relation to an appeal under section 320 concerning a section 52 order, where it has the “power to— (a) quash the order; (b) substitute for all or part of the order any other order which could have been made by the Commission” (again, see column 3 of Schedule 6). The complaint that the appellants make in these proceedings is about the vagueness and lack of definition of the scope of the inquiry. It is submitted that the FTT would not

Judgment Approved by the court for handing down.

Watch Tower Bible v Charity Commission

have jurisdiction to grant relief in relation to that complaint by, for example, identifying how the scope should be varied or clarified. 21.

Mr Clayton submits that, when bringing its judicial review claim, the appellants were entitled to have regard to the Upper-tier Tribunal (“UTT”) decision of Regentford v Charity Commission [2014] UKUT 0364 (TCC) 0364. In that case, the intervener submitted that, even if the FTT upheld a challenge to a decision by the Commission to open an Inquiry, it would generally be inappropriate for it to direct the Commission to close the Inquiry. The UTT said at para 41: “We have concluded that the decision to open the inquiry was a reasonable one in the circumstances and that the FTT was correct to dismiss the application before it. We agree with the Intervener’s submissions at [35] above and conclude that it would generally be inappropriate for the FTT to direct the Respondent to end an inquiry in circumstances where there are significant causes for concern about a charity. We conclude that we should not set aside the FTT’s decision in this case.”

22.

Dove J said that the FTT would have power to provide the equivalent relief to that provided by a court in judicial review proceedings. He said: “35. The process would operate as follows. On the assumption that the Claimant’s contentions on the merits were accepted, it would [be] open for the First-tier Tribunal to conclude that it was an error of law for the Defendant to have opened an inquiry of the breadth which they did and in directing the Defendant to bring the inquiry to an end, they would have to explain in the reasons that they offered why that was, leaving it then open to the Defendant to initiate an inquiry with a narrower scope in accordance [with] the reasons for dismissing and ending the existing broad-scoped inquiry. 36. Alternatively, they could conclude that the Defendant had been entitled to consider that there were significant causes for concern so as to justify the opening of the inquiry under section 46, but the elements of that inquiry would not be consistent with the Defendant’s duties under section 16.4 of the 2011 Act. They would make that clear in the reasoning of their decision and would have to do so in order to deal with and dismiss the Claimant’s submissions. The Defendant would then be obliged to respect that decision as to the parameters of the section 46 inquiry in undertaking it. 37. So far so good. But, says the Claimant, what happens if they did not do that or if there is a dispute about the true perimeters which have been identified by the First-tier Tribunal? In my view, there is an answer to this contention. 38. The first answer, which is not complete, is that the Defendant is a responsible public body which should be expected to respect and properly apply the decision of the First-tier Tribunal. I accept however

Judgment Approved by the court for handing down.

Watch Tower Bible v Charity Commission

that that is, with respect to the Defendant, not a sufficient answer in and of itself. 39. In my view in the instance of intractable disagreement, whilst it is clear that the First-tier Tribunal would not have jurisdiction to act, nevertheless at that point judicial review would be available in relation to the investigative steps and insofar as the decision of the First-tier Tribunal had not been properly respected, this court would have jurisdiction to entertain the Claimant’s application both in relation to the application of the First-tier Tribunal’s decision and the Defendant’s actions in that regard.” 23.

Mr Clayton criticises this passage in two principal respects. First, there is no reason to suppose that the FTT would indeed provide detailed reasons for its conclusion on the appellants’ complaints as to the scope of the inquiry. Secondly, assuming that the FTT allowed the application and were to give detailed reasons for its decision, whether the Commission had given proper effect to the decision might itself be a matter of controversy and give rise to further litigation. Judicial review proceedings to challenge the inadequacy the Commission’s response to the decision would be undesirable. That is because (i) it would encourage satellite litigation; (ii) a rationality challenge would be difficult to mount since the Commission would be making broad evaluative judgments based on the content of the FTT’s decision; and (iii) judicial review would involve delay and additional cost. In all the circumstances, it is preferable to allow a judicial review challenge from the outset to the scope of the inquiry.

24.

I do not accept these criticisms to the judge’s analysis. The FTT would have to give reasons in order to decide the appeal. That is what is required by the common law (see English v Emery Reinbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409) and article 6 of the Convention. The judge was right to regard the fact that the Commission is a responsible public body as a relevant but not decisive factor. As Mr Steele points out, it is consistent with the approach to the grant of relief taken by the Administrative Court. Frequently, the court allows its judgment to speak for itself and does not grant relief because it knows that, as a responsible public body, the defendant will conscientiously seek to comply with the terms of the judgment without the need to be told to do so by order of the court. Nor do I consider that the limitations of judicial review in the event of disagreement as to whether the Commission had given proper effect to the decision of the FTT are a good reason for holding that the court should not insist on the statutory appeal route. First, why should it be assumed that there is a real risk that the decision of the FTT will not be expressed with sufficient clarity for the Commission to know what it may and may not do? Secondly, even if the appellants were to succeed in the present judicial review claim, the possibility of a further judicial review claim could not be ruled out altogether. The court would (i) quash the Commission’s Inquiry Decision; or (ii) decline to quash it and instead make a declaration about the legally permissible scope of the inquiry; or (iii) decline even to make a declaration and instead allow its judgment to speak for itself. It would then be open to the Commission to exercise its discretion to open a new inquiry and define its scope in a manner consistent with the court’s judgment (or if there had been no quashing order, to tailor the scope of the

Judgment Approved by the court for handing down.

Watch Tower Bible v Charity Commission

existing inquiry). If the appellants were dissatisfied with what the Commission did in the light of the judgment, they could start fresh judicial review proceedings. The possibility of fresh judicial review proceedings is often present where the court is unable or unwilling to prescribe with precision what the public body has to do. In my view, this is not a reason for saying that a statutory appeal is not an effective and convenient form of redress against a public body such as the Commission. 25.

For all these reasons, I reject the appellants’ submissions in relation to the first issue.

The second issue: the Production Order 26.

The focus of the argument before the judge (as before us) was on whether the FTT would have jurisdiction under section 320 to determine the appellants’ complaint that the Production Order was unlawful on the grounds that it was disproportionate, in breach of the Data Protection Act 1998 (“the DPA”) and/or in breach of article 8 of the Convention.

27.

The judge held that section 320 provided the appellants with a convenient and effective remedy for all of their complaints in relation to the Production Order. He dealt with the issue as follows: “21.

It is to be noted that the power of the First-tier Tribunal on an appeal directly mirrors the power which is provided to the Defendant under section 52. It is to my mind therefore entirely clear that the Firsttier Tribunal has a jurisdiction to deal with the Claimant’s complaint about both the breadth and the proportionality of the order.

22.

Turning specifically to the complaints raised in relation to the human rights aspect and Article 8, there is in my view no doubt that Article 8 is potentially very obviously engaged in relation to the extent of the documentation which has been sought. There is equally in my view no doubt that the deliberations and decisions of the First-tier Tribunal would also need to accord with the requirements of the Human Rights Act 1998. In particular, section 6 of the 1998 Act would apply to the Tribunal and require them to take that directly into account in reaching any conclusions on any appeal against the production order.

23.

Thus, in concluding whether under section 320(2) that information or documents were relevant to the discharge of the functions of the Commission, compliance with Article 8 and other relevant elements of the Human Rights Act would have to be considered in assessing the extent to which, if at all, the order is to be upheld.

24.

In my view, similar considerations apply in relation to the data protection legislation relied upon. The definition of the Defendant’s functions under section 15 does not clothe the Defendant with authority to act unlawfully or in breach of other legislation, such as the data protection legislation, which will govern its operations. This point applies with equal force to the discharge of the function of exercising the power under section 52 and therefore also applies with equal force to the appeal jurisdiction in the First-tier Tribunal.

Judgment Approved by the court for handing down.

25.

Watch Tower Bible v Charity Commission

It follows from what I have set out that I am entirely satisfied that as a matter of statutory construction and therefore as a matter of law all of the Claimant’s complaints raised in these proceedings can be raised before the First-tier Tribunal and that they will have to consider them in exercising their powers under the appeal provisions which I have set out above.”

28.

Mr Steele supports the judge’s reasoning and conclusion. The following is a summary of his submissions. The interpretation of the phrase “relevant to discharge of the functions of the Commission” must be realistic and not unduly narrow. When considering whether the information or document sought by a section 52 order is relevant to the discharge of the Commission’s functions, the tribunal must examine whether the Commission acted lawfully in issuing the order. It is no part of the Commission’s functions to act unlawfully or to require a charity to act unlawfully. If the tribunal were to conclude that the Commission had not acted lawfully in issuing the order, it is difficult to see how the tribunal could be satisfied that seeking the information or document was nevertheless relevant to the discharge of the Commission’s functions.

29.

Mr Steele submits that the 2011 Act creates a hierarchy of rights of challenge of decisions, directions and orders of the Commission before the tribunal. Section 319 provides for a full appeal on both fact and law. In determining such an appeal, the tribunal must consider afresh the decision, direction or order appealed against, and may take into account evidence which was not available to the Commission. The tribunal has wide powers to grant relief where it allows an appeal. Section 320 provides for a right appeal against a section 52 order. The tribunal does not have the power to consider the order afresh, but it may take into account evidence which was not available to the Commission. Section 321 provides for a review of a number of specified “reviewable matters” and for the application of judicial review principles on such a review. This is not a de novo appeal and, by implication, it is a process in which fresh evidence will rarely be admitted.

30.

Mr Steele submits, therefore, that a section 320 appeal is part way between a full merits appeal under section 319 (the widest form of challenge) and a review under section 321 (the narrowest form of challenge). Parliament cannot have intended the grounds of challenge in a section 320 appeal to be narrower than the grounds of challenge in a section 321 review. If a section 320 appeal cannot be made on the grounds that the section 52 order is unlawful, such an order is the only form of decision, direction or order mentioned in column 1 of Schedule 6 which cannot be challenged before the tribunal on grounds of unlawfulness. This cannot have been intended by Parliament. If a section 52 order cannot be challenged on grounds of unlawfulness, section 320 is a dead letter. It is the only kind of decision by the Commission which cannot be challenged before the tribunal on the grounds of error of law.

31.

Mr Steele has a fall back argument. He submits that the grounds of challenge sought to be made by the appellants in this case are that the Production Order was made in breach of the appellants’ procedural rights under article 8 of the Convention and in breach of the DPA. Section 3(1) of the Human Rights Act 1998 (the “HRA”) provides: “So far as it is possible to do so, primary legislation and subordinate

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legislation must be read and given effect in a way which is compatible with Convention rights”. It follows, he says, that section 320 must be interpreted to require the tribunal to entertain a HRA challenge to a section 52 order. 32.

By parity of reasoning, Mr Steele submits that the same interpretative outcome is required by the DPA. The DPA was enacted in order to implement Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data. The object of the Directive was to protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with regard to the processing of personal data (article 1(1)). The protection of personal data as embodied in the DPA is thus a fundamental right under EU law and in domestic law. It follows that the same interpretative obligation arises in respect of section 320 in relation to the DPA as in relation to Convention rights under the HRA.

33.

Attractively though Mr Steele presented his submissions, I am not able to accept them. Section 52 and section 320 must be read together. But the critical question is what is the scope of an appeal under section 320. On such an appeal, the tribunal must consider whether the information or document (a) “relates to” a charity and (b) is “relevant to the discharge of the functions of the Commission”. The phrases “relate to” and “relevant to” are ordinary words. They bear substantially the same meaning. “Relate to” means “connected with”. A section 52 order must be connected in some way with the charity in question. “Relevant to” means “connected with” or “bearing upon” or “pertinent to”. Thus a section 52 order must be connected with, bear upon and pertain to the discharge of the functions of the Commission. As a matter of ordinary language, there can be little doubt that this is what the two phrases mean.

34.

As Mr Clayton points out, the interpretation for which Mr Steele contends involves reading the phrase “relevant to the discharge of the functions of the Commission” as “relevant to the lawful discharge of the functions of the Commission”. It may be said that it is implicit in section 52 that the power to make an order is restricted to making an order for the production of information or documents relevant to the lawful discharge of the functions of the Commission. But in my view, it is clear from section 320 that the words “relevant to the discharge of the functions of the Commission” do not bear this meaning. The focus is on relevance to the discharge of the Commission’s general functions described in section 15. As a matter of ordinary language, section 320 requires the tribunal to focus on the connection between the order and the discharge of these functions. It is required to ask whether, as a matter of fact, there is any connection between the order and the discharge of one or more of the functions. It may allow an appeal only if satisfied that there is no such connection. That is consistent with section 320(2)(a) which requires the tribunal to consider whether there is any connection between the order and the charity itself. This too is a factual question. On Mr Steele’s interpretation, the focus would not be on that connection. Instead, it would be on whether the decision to make the order was lawful and/or whether the way in which the Commission reached its decision to make the order was unlawful. I would hold as a matter of ordinary language that this is not what section 320 means.

35.

In my view, if Parliament had intended that the tribunal was required under section 320 to consider whether the section 52 order was lawful (e.g. whether it was

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disproportionate, in breach of Convention or DPA rights), it would surely have listed it among the “reviewable matters” subject to a judicial review type process pursuant to section 321 or provided for a full appeal under section 319 (save for section 319(4)(a)). Either of these routes would have enabled a person to challenge a section 52 order before the tribunal on grounds of illegality. It is significant that section 319 does not identify the grounds on which an appeal may be brought. It is, therefore, implicit that an appeal may be brought under section 319 on the ground of any error of fact or law. On the other hand, section 320 permits an appeal only on the grounds stated in section 320(2). It was clearly not intended to confer a general right of appeal on the grounds of error of fact or law. And yet, if Mr Steele is right, section 320 does indeed confer a right of appeal on the grounds of any error of fact or law. If it had been intended to confer such a general right of appeal, I do not consider that Parliament would have expressed the grounds of appeal in the terms of section 320(2). If the purpose of section 320 was to confer a general right of appeal (subject only to the bar on considering the order afresh (section 319(4)(a)), one would have expected section 320 to be confined to subsection (1). That is all that would have been necessary. Instead, Parliament introduced the limitation that is found in subsection (2), and reinforced the point by stating in subsection (3) that an appeal can only be allowed if the tribunal is satisfied that the information or document does not fall within subsection (2)(a) or (b). 36.

The judge said that the definition of the Commission’s functions in section 15 “does not clothe [it] with authority to act unlawfully or in breach of other legislation”. I agree. But I do not see how this sheds any light on the meaning and scope of section 320. The whole point of conferring a right of appeal is to enable challenges against the wrongful discharge of functions to be made. The scope of a right of appeal must depend on the true meaning and effect of the provision which confers the right of appeal.

37.

Nor do I accept that Mr Steele’s hierarchy of rights of challenge sheds any light on the problem. It is true that a section 320 appeal lies somewhere between a section 319 appeal and a section 321 review. That of itself does not provide the answer to the question.

38.

There remains the question of why Parliament should have intended to exclude from section 320 the right to appeal a section 52 order on the general ground that the order was erroneous in fact or law. No explanation has been proferred. It seems to me that a possible explanation is that section 52 orders were seen as ancillary to the efficient discharge by the Commission of its functions (the conduct of a section 46 inquiry is a good example) and that Parliament either did not envisage that there would be much scope for appeals against such orders or (perhaps more likely) did not wish to permit appeals on the grounds of illegality save in the particular circumstances stated in section 320(2). As against that, it may be said that Parliament must be taken to have known that (as the present case demonstrates) there was nothing to stop an individual from seeking judicial review of a section 52 order. Notwithstanding this, I consider that Parliament may not have wished to sanction a general right of appeal against section 52 orders for the simple reason that they would be likely to impede the efficient discharge by the Commission of its functions. Suffice it to say that excluding section 52 orders from the ambit of a general right of appeal would not be irrational. It makes sense that Parliament would have intended to limit the right of

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appeal to orders purportedly made under section 52 which did not relate to the charity in question or were not relevant to the discharge of the Commission’s functions. That does not make section 320 a dead letter. It does, however, narrowly define the boundaries of an appeal against a section 52 order. 39.

I conclude, therefore, that the words “relevant to the discharge of the functions of the Commission” should be given their ordinary and natural meaning. Section 320 does not permit an appeal on the grounds that a section 52 order was unlawfully made.

40.

I would also reject Mr Steele’s alternative argument based on section 3 of the HRA. The statutory provision which he says is incompatible with the Convention is section 320 because (for the reasons I have given) it does not permit challenges to section 52 orders on Convention grounds. There is a very short answer to this submission. Subject to any article 6 or article 14 considerations, the Convention does not prescribe how a victim of breaches of Convention rights should be able to vindicate his or her rights. All that is required is that the state provides a mechanism whereby those rights can be determined by an independent tribunal. There is nothing wrong with a system which provides for the determination of those rights by different independent tribunals. That is the position here. It is not in dispute that, if section 320 does not provide an appeal to the tribunal on the grounds of illegality, the appellants can in principle challenge the Production Order by judicial review proceedings (as they have done). The answer to Mr Steele’s alternative argument in so far as it is based on the DPA is the same.

41.

Mr Steele relies on Hounslow LBC v Powell [2011] 2 AC 186, [2011] UKSC 8 in support of his alternative argument. This was a possession claim in which the defendant tenant filed a defence alleging that the decision to seek an order for possession was in breach of his rights under article 8 of the Convention. One of the issues was whether section 127(2) of the Housing Act 1996 (which permitted a landlord to bring an introductory tenancy to an end by obtaining a possession order from the court) could be read and given effect so as to permit the tenant to raise his article 8 Convention right by way of defence. The Supreme Court concluded that it was possible to read and give effect to section 127(2) compatibly with article 8 rights so as to enable the judge in the county court to deal with a defence which relied on a breach of article 8. By parity, Mr Steele submits that section 320 of the 2011 Act can and should be read and given effect so as to enable a challenge to a section 52 order to be raised on Convention or DPA grounds.

42.

But the Hounslow case is readily distinguishable. Unless section 127(2) could be read and given effect as to enable a tenant to raise an article 8 defence, there was no independent tribunal before which that defence could be raised. That is not the case in relation to section 320. The claimants can raise their challenge to the section 52 order by way of judicial review proceedings.

The Respondent’s Notice 43.

In these circumstances, it is unnecessary to deal with the issues raised by the Respondent’s Notice.

Overall Conclusion

Judgment Approved by the court for handing down.

44.

Watch Tower Bible v Charity Commission

For the reasons that I have given, I would dismiss the appeal in relation to the Inquiry Decision, and allow the appeal in relation to the Production Order.

Lord Justice McCombe: 45.

I respectfully agree with the Master of the Rolls in rejecting the appellants’ submissions in relation to the first issue.

46.

On the second issue, I confess to a considerable degree of hesitation and, indeed in the end, indecision as to which of the arguments on the point of construction of section 320 should prevail. Happily, as will appear hereafter, I do not find that my indecision has any effect on the outcome of the appeal on this point.

47.

During the hearing of the case and until receipt of the draft of the judgment of the Master of the Rolls, I felt confident in the correctness of Dove J’s decision on the point. In particular, it seemed to me that the judge was correct in finding that, in determining whether information and/or documents were “relevant” to the discharge of the Commission’s functions, it would be necessary for the Commission itself and for the Tribunal on appeal to consider compliance with Article 8 of the Convention and any issues raised under the DPA – and indeed any other issues as to the lawfulness of the Commission’s order. It seemed to me that, having regard to the definition of the Commission’s functions under section 15 of the 2011 Act, it could not be “relevant” to their discharge to make an order under section 52 requiring production of material to which the Commission was not lawfully entitled: see paragraphs 23 and 24 of the judge’s judgment. This was an argument that Mr Steele attractively supported in his submissions for the Commission before us.

48.

The arguments, however, gave rise to questions in my mind as to whether there might be differences between issues arising under the DPA and under Article 8. In the case of the DPA it might be said that the Commission could ask for documents (broadly) relevant to its functions and yet find itself faced with an objection under the DPA. In such a case, might it not well be that the order for production was not unlawful – and, therefore, relevant to the Commission’s functions, but yet there might be a valid objection to compliance with it because to do so would constitute a breach on the part of the person to whom the order was directed on the grounds that compliance would be unlawful on its part? On the other hand, would it be relevant to the discharge of the Commission’s functions, the Commission being a public body, for it to make an order which infringed the rights of third persons under the Convention? What would be the position if the Commission ordered the production of a document that was clearly the subject of legal professional privilege?

49.

I was also troubled by the obvious inconvenience caused by the bifurcation of the functions of the court and of the Tribunal in this area. It seems odd that the Tribunal should be the proper forum for resolving issues under the Convention, if raised in objection to the Commission’s decision to institute an inquiry under section 46 of the Act, and yet be jurisdictionally incompetent to decide such an issue in relation to a document ordered to be produced by order made under section 52.

50.

I did and do not find a ready answer to these questions. However, the dilemma did lead me to think that Dove J may have been incorrect in his decision on this part of the case. As the Master of the Rolls recalls in paragraph 19 of his judgment, the

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remedy of judicial review should not be used if other means of redress are “conveniently and effectively” available to the party asking for review. In my judgment, this is not a case in which such a means of redress is conveniently and effectively available. This is so either because the construction of the Act is such that the Tribunal does not have jurisdiction, for the reasons given by the Master of the Rolls, or because, as it seems to me, such jurisdiction is in doubt in view of what I find to be the obscure meaning of the inter-related provisions of the Act for these purposes. 51.

There can be no doubt that the High Court can effectively determine the matters sought to be raised by the appellants in resistance to the Production Order in this case and those matters concerning that Order should, therefore, be determined there rather than in the Tribunal, whose jurisdiction is (at best) doubtful.

52.

I would add that I respectfully agree with the Master of the Rolls’ rejection of Mr Steele’s alternative argument as to the incompatibility of section 320 with the Convention for the reasons given in paragraphs 40 and following of the judgment above.

Lord Justice David Richards: 53.

For the reasons given by the Master of the Rolls in his judgment, I agree that the appeal should be dismissed in respect of the Inquiry Decision but allowed in respect of the Production Order.

Case No: C2/2015/0041 Neutral Citation Number: [2016] EWCA Civ 156 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER UTJ Lane JR54162014 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/03/2016 Before : LORD JUSTICE LLOYD JONES and LORD JUSTICE BEATSON ——————–Between : The Queen on the application of Prashant Shankar Naidu - and Secretary of State for the Home Department

Appellant Respondent

—————————————-Amaka Nnamani (instructed by AH Law Ltd) for the Appellant William Hansen (instructed by Government Legal Department) for the Respondent Hearing date: 1 March 2016


Judgment

Lord Justice Beatson : Introduction 1.

This is the appeal of Prashant Shankar Naidu, a citizen of the Republic of India, against the decision by Upper Tribunal Judge Peter Lane dated 21 November 2014 refusing him permission to bring judicial review proceedings and refusing him permission to appeal to this court. Permission was given by Burnett LJ on 2 April 2015. Mr Naidu’s challenge is to the decision made by an Entry Clearance Officer in Mumbai on behalf of the Secretary of State on 23 January 2014 to refuse him a business visitor visa to the United Kingdom.

2.

The application for a visa which resulted in the refusal on 23 January 2014 was Mr Naidu’s second application. The second application was refused because of the basis on which the Entry Clearance Officer refused an earlier application. The earlier application had been refused on 17 December 2013 on two grounds flowing from the decision of the Entry Clearance Officer that Mr Naidu submitted a false document relating to his business, Unique Express with that application. The first ground was that Mr Naidu had not satisfied the requirements of paragraphs 46G of the Immigration Rules because the Entry Clearance Officer was not satisfied that he intended to undertake a genuine business visit. The second ground was that Mr Naidu had used deception in his application by submitting the false document so that the application had to be refused under paragraph 320(7A) of the Immigration Rules (“the Rules”).

3.

The consequence of a refusal of leave under paragraph 320(7A) is to bar those so refused from being given leave for specified periods of time, which in the case of the use of deception is for 10 years: see paragraph 320(7B)(ii). In Mr Naidu’s case he would thus be barred until December 2023. It was the second ground on which Mr Nadu’s first application was refused that led to the refusal of his second application pursuant to paragraph 320(7B).

4.

Mr Naidu is the proprietor of a courier and logistics business, Unique Express, established in 2002. Its registered head office is in Pune, India, and it has branch offices. These proceedings concern the status of the firm’s operation in Mumbai at a specified address. On 29 November 2013, Mr Naidu applied to the Entry Clearance Officer at the British Deputy High Commission in Mumbai for entry clearance to attend business meetings with Paragon Courier and Cargo (“Paragon”) at an address in Hounslow. As well as his application form, he submitted a copy of the invitation letter from Paragon and a letter relating to Unique Express’s business. The letterhead to the letter on Unique Express’s paper gives two addresses for Unique Express, one in Mumbai and one in Bangalore. The Mumbai address is “Parle Coloy … Vie Parle, (East) Mumbai 400057”. The foot of the document contains the address of “HO”, i.e. head office, which is an address in Pune. The address of the firm in the application form was the Pune address.

The decisions refusing entry clearance 5.

A letter dated 17 December 2013 refused the November application for entry clearance. The Entry Clearance Officer’s letter stated that the onus is on applicants to demonstrate that they meet the requirements of the Rules. It referred to Mr Naidu’s

declaration in the application that the information he provided is complete and true to the best of his knowledge, and then stated: “In support of your application you have submitted a letter relating to your business, Unique Express. As a result of checks made by this office, detailed in a Document Verification Report, I am not satisfied, on the balance of probabilities, that this document is genuine. This fact has damaged the credibility of your application and I am therefore not satisfied that you intend to undertake a genuine business visit or that you will be maintained and accommodated without recourse to public funds or taking employment (paragraph 46(g)(i) - (ii) of HC 395 as amended. Furthermore, because in your application you submitted what I am satisfied to be a false business letter, your application is refused under paragraph 320(7a) [sic] of the Immigration Rules. You should note that because this application for entry clearance has been refused under paragraph 320(7a) [sic] of the Immigration Rules, any future applications may also be refused under paragraph 320(7b) [sic] of the Immigration Rules until 17 December 2023 (subject to the requirements set out in paragraph A320).” Mr Naidu was given no further details of the document verification process at that time. The process was summarised in an email response dated 20 February 2014 by the Secretary of State to an emailed letter before claim from Mr Naidu’s solicitors and a redacted copy was provided with the Secretary of State’s Acknowledgement of Service dated 19 June 2014. I will summarise its contents later in this judgment. 6.

After Mr Naidu received the notice of refusal, on 6 January 2014 he submitted a second application online. In part 8, question 88, he referred to the refusal of his previous application on the ground of a false invitation letter and stated that he wished to “appeal and clarify so [the ECO] can consider my application for visa approval”. He stated that he was enclosing the invitation letter from Paragon and also adding an invitation letter from “an additional counterpart”.

7.

In addition to his online application, Mr Naidu wrote to the Deputy High Commission. His letter, dated 8 January 2014, stated that he wished to provide clarity on the business relationship between Unique Express and Paragon as he felt the decision rejecting his application was based on “less documentation”. Later in the letter, he expressed his surprise and shock that the application had been rejected on the ground that the invitation letter submitted was not genuine. He stated that he was also a director of Total Courier and Cargo Logistics PBT Ltd, which had business relations with Paragon, and enclosed clarification by Paragon and what he described as “an additional invitation” from another freight forwarding company, Maina, which is based in Middlesex.

8.

The explanation for Mr Naidu’s covering letter focusing on the status of the invitation rather than the genuineness of the covering letter relating to Unique Express may have been that there was nothing in the decision letter to indicate that the problem related

to the address given for Unique Express’s office in Mumbai. Although he did not refer to them in the covering letter, Mr Naidu also submitted an unsigned and undated document on Unique Express’s paper. It was headed “Additional Documents” and listed documents under six headings. At one stage, Ms Nnamani maintained these documents had been submitted with the first application. In view of the terms of the letter dated 8 January and the reference to the submission of “an additional invitation” from Maina, she accepted they were only submitted with the second application. 9.

The other documents were submitted in order to show that Unique Express was a genuine and subsisting business. They included many documents relating to the Pune address, the financial status of Mr Naidu and Unique Express, other property owned by him, his relationship with Total Courier, and documents about his family status. The documents relating to Unique Express showed that there was a business of that name which was registered as such with the Indian Ministry of Commerce and was also registered with the Central Board of Excise and Customs, had an import/export code number, and filed income tax returns. Given the particular concern of the Entry Clearance Officer, then unknown to Mr Naidu, those documents do not directly assist this application although they do provide evidence that the business was genuine. But another document, of direct relevance to the particular concern, was also submitted. It is a registration certificate of establishment under the Bombay Shops and Establishments Act 1948 dated 30 November 2012, giving the same Mumbai address for Unique Express as that on the letterhead with the applications.

10.

Ms Nnamani’s case was initially presented on the basis that two other relevant documents, an “Agreement of Leave and Licence” dated 4 September 2012 in which a Mr Nishar granted Mr Naidu a licence over those premises for the business, and a bill from Tata Teleservices for Unique Express at the Mumbai address, were submitted to the Entry Clearance Officer at that time. Neither of these is mentioned on the list of documents or the documents that were listed as submitted with the second application in an email dated 18 February 2014, which is stated to be a letter before claim. The bill from Tata is dated 7 January 2014, and relates to the period between 15 December 2013 and 14 January 2014. Mr Hansen is wrong to state that the bill could not have been submitted under cover of the letter dated 8 January, because it may have arrived just before that letter was posted. But the failure to refer to it in either list means the court cannot be satisfied that it was then submitted. The same is true of the Agreement of Leave and Licence.

11.

Mr Naidu’s second application was refused on 23 January 2014. The Entry Clearance Officer’s notice of the decision stated inter alia: “ … I am aware from records held that you were refused a visa on 17 December 2013 because you submitted a false document relating to your business, Unique Express. Specifically, the Mumbai address you provided for your business was found to be that of a different courier company. The fact that you previously employed deception leads me to doubt the veracity of your statement and your latest visa application. In light of this, I am not satisfied that you plan to leave the UK at the end of your visit or that you are genuinely seeking entry as a business visitor …

Furthermore, because you submitted a false document in your previous application, I have considered your application under paragraph 320(7B) and am satisfied that your application falls to be refused under paragraph 320(7B) of the Immigration Rules. You should note that any future applications will continue to be refused under paragraph 320(7B) of the Immigration Rules until 17 December 2023.” 12.

Following the second refusal, there were further exchanges, including two letters before claim dated 18 February and 6 March 2014. The response to that dated 18 February is the email dated 20 February, to which I have referred. There was also a briefer response dated 24 February 2014 to a subsequent email. The Secretary of State stated that the letter before claim dated 6 March 2014 had been received on 24 March, and a reply was sent to it by post, but that letter was not before the court. These proceedings challenging the decision dated 23 January 2014 were filed on 16 April 2014.

The investigation by the respondent 13.

In the email dated 20 February 2014 responding to the letter before claim dated 18 February 2014, the Entry Clearance Manager at Mumbai stated that during the process of the first application, investigations were conducted into Mr Naidu’s claimed business, Unique Express. It is stated: “Firstly, a telephone call was placed to the business and the person who answered stated it was Total Couriers. Secondly, a field trip was conducted to the premises themselves on 11 December 2013. At the given address, it was found there were two other courier companies, Total and GMS. A business called Unique Express was not present. Conversations with the workers within Total and GMS revealed that Unique Express did not occupy that address, and it was suggested it may be nearby. However, despite searching nearby, there was no such by the name of Unique Express found”.

14.

The response referred to the documents submitted with the second application, which is stated to have been made on 9 January 2014. The Entry Clearance Manager stated: “I note that the address on most of the documents all relate to an address in Pune, but that one document alone relates to an address in Vie-Parl, Mumbai. It appears that all correspondence relating to the business of Unique Express is sent to the applicant’s home address in Pune, and not to either the Mumbai or Bangalore business addresses. The business letters submitted with both these visa applications give branch addresses in Mumbai and in Bangalore. Unfortunately, none of the documents received so far explain why it was found on a visit by our officers that the business premises itself in Mumbai did not exist.”

15.

The email concluded that, in the light of what was said, the writer was satisfied that “the higher standard of proof required for refusals under paragraph 320(7A) and (7B) has been met … and that the decision to refuse Mr Naidu’s second business visit visa application was correct”. The Secretary of State’s summary grounds and acknowledgement of service stated that the response stated that the results of the field trip had been documented in a Document Verification Report held by the Secretary of State.

16.

I have stated that the Document Verification Report was not provided at the time of the decision. It was not in the bundle filed when the judicial review proceedings were lodged, but it was attached to the Secretary of State’s acknowledgement of service. The verifier had worked for the Deputy High Commission’s visa department since 2011 and had been trained for forgery detection. He stated in his report that when he called the telephone number for Unique Express found on JustDial and the local search engine the person who answered the call stated that it was the number for Total Couriers. When the verifier visited the address, the person he spoke to informed him that the office was that of Total Couriers and GMS Couriers but not that of Unique Express. Despite checking in the nearby vicinity, the verifier found no courier service by the name of Unique Express.

17.

The summary grounds conclude by stating that, although Mr Naidu had claimed that his application was reliant on the head office in Pune and that he is the director of MS Total Courier and Cargo Logistics, operating from the same Mumbai office premises as are on the letterhead, that did not explain why the documents stated that Unique Express is located at those premises.

The refusal of permission 18.

When refusing permission and certifying the application as totally without merit, UTJ Peter Lane stated: “The application is bound to fail. The respondent has shown unarguably that false documents were submitted in connection with the application for entry clearance, with the result that the application had to be rejected. The application material included letters from ‘Unique Express’ … on which it was clearly stated that the business has premises at addresses in Mumbai and Bangalore. Whether its head office is in Pune is immaterial. Both a telephone check and a site visit disclosed that the Mumbai address was false.”

19.

UTJ Peter Lane amplified these reasons when refusing permission to appeal. He stated that whether the applicant had a connection with some other company operating from those premises is immaterial as far as the Rules are concerned. There was, he observed, no explanation as to why, on the applicant’s story, the person contacted would have answered as he did to the respondent’s representative or why the site visit did not reveal what is claimed to be the position. It is also stated that the grounds missed the point that this is a judicial review, not an appeal.

20.

The appellant’s notice was filed in this court on 6 January 2015. A witness statement by Mr Naidu dated 9 January 2015 and an undated statement by Mr Eshwarappa, the

Managing Director of GMS Express Ltd, have also been filed. These stated that, at the material time, GMS occupied the ground floor of the premises and Unique Express occupied the first floor. Mr Naidu stated that he was a director of Total Couriers and had a 50% interest in it, and that the building had numerous offices which are mainly courier service companies, including Unique Express’s. The legal framework 21.

The position of business visitors is dealt with in paragraph 46G of the Immigration Rules (HC 395). The requirements of the category are that the person is genuinely seeking entry as a business visitor for a period not exceeding six months, and intends to attend meetings, conferences and interviews.

22.

Paragraph 320(7A) of the Immigration Rules provides that entry clearance or leave to enter should be refused where the applicant has submitted false documents or information in relation to an application. Paragraph 320(7B) provides that where a person has previously breached the UK’s immigration laws by: “… (d) using deception in an application for entry clearance, leave to enter or remain, whether successful or not, unless the applicant … (iii) left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months previously entry clearance or leave should be refused for a period of 10 years: see paragraph 320(7B)(ii). Paragraph 6 of the Immigration Rules defines “deception” in paragraph 320(7B) as “making false representations or submitting false documents (whether or not material to the application)”.

Discussion 23.

There are two grounds of appeal. The first ground is that both decisions refusing Mr Naidu entry clearance were unlawful because the Secretary of State had failed to prove to the requisite standard that Mr Naidu had used deception. The second ground has two limbs. The first limb is that the decisions were procedurally unfair because of the failure to contact the Pune head office or Mr Naidu about the concerns raised by the investigation and to ascertain the facts. The second limb is that the Secretary of State’s approach to assessing the applications was Wednesbury unreasonable having regard to the consequences of a refusal on the grounds of deception and the prejudice to Mr Naidu’s reputation and business.

24.

In respect of ground 1, in Ms Nnamani’s skeleton argument (dated 18 January 2015) she relied on authorities which state that the Entry Clearance Officer and the Secretary of State bear the burden of proving that deception has been used by an applicant: see JC (Part 9, HC 395, Burden of Proof) (China) [2007] UKIAT 00027 at [10] and [13] and Shen (Paper Appeals: Proving Dishonesty) [2014] UKUT 00236 at

[25] – [26]. Her written submissions maintain that those cases show that the validity of the decision rests on the decision-maker being able to establish a precedent or jurisdictional fact: see R v Secretary of State for the Home Department, ex p. Khawaja [1984] AC 74. She argued that, if an application is false in a material way, while that may be prima facie evidence which assists in establishing dishonesty, it is not dispositive and it is open to the person involved to proffer an innocent explanation which, once proffered, shifts the burden back to the Secretary of State. 25.

At the hearing, Ms Nnamani accepted that, in the light of this court’s decision in R (Giri) v Secretary of State for the Home Department [2015] EWCA Civ 784, it was not open for her to argue that the role of the court, in considering a decision about leave by the Secretary of State or her officials, including a decision that deception has been used, is to determine for itself as a “precedent” or “jurisdictional” fact whether deception in fact was used. She accepted that the standard of review is the Wednesbury test. She, however, submitted that, although the burden of proof is the ordinary civil standard, particular care is needed in a case where the finding is deception because of the stigma and the serious consequences of making such a finding.

26.

Ms Nnamani submitted that, in relation to the verification checks, there was no evidence regarding who was spoken to at the Mumbai premises and whether the verification officer asked for Mr Naidu by name or asked whether he was known to the people at the address, and there was no attempt to contact the head office or Mr Naidu himself. She also submitted that the second decision does not take account of the various documents provided to demonstrate the appellant’s connection with Total Courier and Cargo Services and the documents showing the link of Unique Express to the Mumbai premises. The consequence of these failings, she submitted, is that the decision that deception was used by Mr Naidu in his applications was unlawful.

27.

The Secretary of State’s case was based on three overarching submissions. The first is that the decision challenged, the second refusal of entry clearance, met the requirements of Wednesbury reasonableness. The second is that there was nothing procedurally unfair about the decision-making process. The third is that, in any event Mr Naidu did not challenge the first refusal of entry clearance and the decision that that application was supported by a false document.

28.

In relation to ground 1, unlawfulness, it is clear in the light of Giri’s case that the role of the court is to consider whether the Entry Clearance Officer’s decision was Wednesbury unreasonable in the sense that no reasonable decision-maker could have made it, applying the ordinary civil standard of proof: see Giri at [34] – [38]. In my judgment, in the light of the material submitted with the application that was before the Entry Clearance Officer and the result of the verification exercise, it is unarguable that the first decision in the Notice dated 17 December 2013 was Wednesbury unreasonable. The first decision was not challenged, but the second decision in the Notice dated 23 January 2014 refers to and relied on it. As will be seen, that makes the position more complicated.

29.

Mr Hansen placed considerable weight on the failure to challenge the first decision that deception had been used. He maintained that, where such a decision has not been challenged, the Secretary of State is entitled to rely on that decision when dealing with a further application. He argued that the structure of the Immigration Rules

means that, where a decision that false representations have been made or false documents or information have been submitted in relation to an application for leave under paragraph 320(7A) in the past, the effect of paragraph 320(7B) is that the Entry Clearance Officer is required to refuse a subsequent application within the prohibited period (here 10 years). The Secretary of State’s ability to rely on the earlier decision followed from the fact that paragraph 320(7B) provides that “where the applicant has previously breached the UK’s immigration laws … (d) using deception in an application … (whether successful or not) the application for leave must be refused”. It is also, he maintained, clear from the definition in paragraph 6 of the Immigration Rules of “deception” in paragraph 320(7B) (see [22] above) that this was the position in relation to the second application in Mr Naidu’s case. 30.

Mr Hansen acknowledged that the position was what he described as “austere”. At one stage during the hearing he had appeared to accept that, where a second application was made and overwhelming evidence was provided to show that there had in fact been no deception in the first application, the Rules did not require the decision-maker to refuse it. He maintained that there was, however, no overwhelming evidence in this case. Mr Hansen submitted, in relation to the second decision, that “having carried out a site visit and found no evidence of the business at that address”, “the SSHD was unarguably entitled to conclude as she did”: skeleton argument, paragraph 18. The documentary evidence submitted with the second application did not assist Mr Naidu because, as the Entry Clearance Manager stated when maintaining the refusal, Mr Naidu had not explained “why the business letter he submitted for Unique Express contains an address in Mumbai which, when visited, did not appear to be associated with this company”.

31.

Ultimately, however, Mr Hansen’s submission was that paragraph 320(7B) of the Rules required the Secretary of State to refuse a second application where a previous application had been refused pursuant to paragraph 320(7A). He argued that a case where overwhelming evidence was provided to show that there had in fact been no deception in the first application could be catered for by the power of the Secretary of State to grant leave outside the Rules. He maintained that the Secretary of State’s residual discretion tempered the “austerity” of the Rules in the way recently described by this court in R (Sayaniya) v Upper Tribunal (Immigration and Asylum Chamber) and Secretary of State for the Home Department [2016] EWCA Civ 85, although he recognised that in the present case, unlike that case, the notice of decision did not state that it is open to a person to submit a fresh application with full supporting evidence.

32.

At this point, I make two observations. The first is that where there is different material before the Entry Clearance Officer the position of the second decision in a case such as this is not on all fours with the first decision. On the facts of this case, it may be that, notwithstanding the documentation supplied with the second application, it would have been open to the Entry Clearance Officer to reach the same conclusion on deception. But in my judgment, leaving aside what is required by paragraph 320(7B) of the Rules, the additional documentation about Unique Express and its links to the Mumbai address on the letterhead affected the factual matrix against which the Entry Clearance Officer had to make his decision on that second occasion. The second observation is that the consequences of a finding that deception has been

used are draconian if the position is that such a finding can only be challenged on Wednesbury grounds, and at the time of the relevant decision. 33.

My reason for using the term “draconian” is the effect if, at the time of the first decision, it is not possible to say that on the material before the decision-maker the decision was Wednesbury unreasonable. This would be that, even where it is conclusively shown at a later stage that there had in fact been no deception at the time of the first decision under paragraph 320(7A), it would not be open to a court to find that a subsequent finding that paragraph 320(7B) applies is Wednesbury unreasonable. The position Mr Hansen ultimately took would mean that the Secretary of State is thereafter entitled to treat the earlier, unchallengeable but in fact factually mistaken (and possibly fundamentally mistaken) earlier decision, as a correct decision rather than a decision that, while not Wednesbury unreasonable, is factually and possibly fundamentally mistaken. That, in substance, involves reading the definition of “deception” in paragraph 6 of the Rules and thus the word “deception” in paragraph 320(7B) as glossed by qualifying the reference to “false representations” and “false documents” to include findings of such falsity which, although mistaken, are not so flawed as to be Wednesbury unreasonable.

34.

I have stated (at [32] above) that on the facts of this case, it may be that, notwithstanding the documentation supplied with the second application and the different factual matrix, it would have been open to the Entry Clearance Officer to reach the same conclusion on deception. In this case, the second decision makes no reference to those documents. It focuses exclusively on the fact that Mr Naidu’s previous application was refused because he submitted a false document. These factors are relevant to the procedural unfairness and Wednesbury unreasonableness limbs of ground 2, to which I now turn.

35.

The general principle is that it is for an applicant to provide the evidence to support an application and for the Secretary of State to make a decision on that evidence. In R (Kaur) v Secretary of State for the Home Department [2013] EWHC 1538 (Admin), on which Mr Hansen relied, the Deputy Judge stated at [31] that the selection of documentation to support an application is a matter within the responsibility of the applicant. The Secretary of State is not required to communicate doubts about a document to an applicant or to give him or her a further opportunity to supply more documents or more explanations.

36.

In Kaur’s case the claimant’s application for leave to remain as a Tier 1 (General) migrant under the points-based system was refused as a result of a verification report which had failed to verify reference letters said to be from a client and a firm of chartered accountants and a degree certificate from Maharaj University, Kampur. The application was refused on the ground that the Secretary of State was not satisfied that the specified documents had been produced. It was not, however, refused under paragraph 320(7A) or (7B) of the Rules.

37.

Mr Hansen also relied on the decision of this court in EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517. That case concerned an application for leave to remain as a Tier 4 (General Student) where, as a result of an administrative error for which the applicant had no responsibility (see [24]) the college withdrew its CAS letter. The applicant did not know this had happened, and

the Secretary of State did not know that there had been a mistake. But the result was that the applicant did not have the requisite number of points to be granted leave. 38.

This court rejected the applicant’s argument that the Secretary of State was required to give her the opportunity to regularise her application. It recognised that the general public law duty which rests on the Secretary of State to act fairly when discharging her functions is not excluded by the fact that an application falls within the pointsbased system under the Immigration Rules. But it rejected the applicant’s argument that fairness required the Secretary of State to give her the opportunity of regularising her application.

39.

EK (Ivory Coast) is now frequently invoked by those representing the Secretary of State. This is because Sales LJ stated (at [31]) that the general public law duty of fairness ought not to be applied in such a manner as to undermine the intended mode of operation of the points-based system in a substantial way. He also stated (at [32]) that, where there is no way in which the Secretary of State can tell whether what appears to be problematic in an application is the result of some administrative error by a third party, it would be an intrusion on “the intended straightforward and relatively automatic operation of decision-making by the Secretary of State under the PBS if in every case of withdrawal of a CAS letter she had to make enquiries and delay making a decision”. Sales LJ referred (at [40]) to the need to strike a fair balance between the public interest in having the points-based system operated in a simple way, and the interest of a particular individual, who may be detrimentally affected by such obligation.

40.

It should be noted that EK (Ivory Coast) did not concern a problem for which the Secretary of State was responsible, and she did not know or have reason to know the college had made an administrative error in withdrawing EK’s CAS letter. Where the problem is one of the Secretary of State’s making and within her knowledge, as where it is she who has revoked the sponsoring institution’s licence, it is clear from the decision in Patel (Revocation of Sponsor Licence – Fairness) (India) [2011] UKUT 00211 that, even in a case not involving a finding of deception, the failure to give the individual an opportunity may be unfair. While EK (Ivory Coast) disapproved the breadth of some of what was said in Patel’s case, it did not disapprove of the basic principle stated in it.

41.

Although, the issue in this case does not directly concern the points-based system, Mr Hansen argued that the number of applications and the policy in favour of efficient and expeditious decisions means that, when considering the impact of a finding under paragraph 320(7A), the Secretary of State should not be required to go back to an applicant in the position of Mr Naidu. Ms Nnamani recognised that the decision in Kaur’s case meant that the Secretary of State is not obliged to enter into a dialogue with an applicant. She, however, submitted that, in circumstances such as these, once enquiries suggest that a business is not genuine or there is a problem with a document, fairness requires the Secretary of State to engage with the applicant about the evidence before making a decision that deception has been used.

42.

The question is thus whether there should be a distinction between the position where a decision is to be refused for non-compliance with the Rules but consideration is not being given to making a finding of deception, and a case in which, as a result of the

investigations, the Secretary of State is minded to make a finding of deception. Both Kaur’s case and EK (Ivory Coast) were in the first category. 43.

A scenario based on the facts of this case illustrates my concern about the breadth of Mr Hansen’s submission about the effect of a previous unchallenged finding of deception on a later application. I have stated that on the material before the decisionmaker, the first decision dated 17 December 2013 was not arguably susceptible to review on Wednesbury grounds. That decision was unassailable on Wednesbury grounds because the material before the decision-maker at that time was evidence which assists in justifying a decision that deception has been used. Given the evidence before the decision-maker then, that decision cannot even be seen to be arguably perverse or irrational.

44.

Mr Hansen’s argument involves contending that the fact that the first decision was itself not reviewable is dispositive whatever happens in the future and however compelling the evidence subsequently put before the decision-maker. For example, subsequently indisputable evidence may be provided as to the location within the Mumbai address in which Unique Express’s business was conducted, or that several corporate entities were sharing single premises at the relevant time. There may then be a clear explanation of why the persons spoken to by the verifier did not know about Unique Express. I do not consider that the first decision should be regarded as dispositive in such circumstances. In my judgment it is open to the person involved to proffer an innocent explanation in a further application supported by evidence which was not before the decision-maker at the time of the first decision. Once proffered, that explanation and that evidence must be considered by the Secretary of State when deciding the further application. It must be addressed when considering whether to maintain the decision that deception was used on the earlier occasion. In making the further decision, weight, indeed considerable weight, can properly be given to the first decision.

45.

In determining what is required by the duty to act fairly it is relevant to take into account the fact that the decision-maker is considering making a finding of deception or acting on the basis that a previous finding of deception is true. The resolution of what fairness requires in a case where the Secretary of State is minded to make a finding that deception has been used in the past and to refuse an application under paragraph 320(7B) is, as Sales LJ stated in EK (Ivory Coast) (at [40]), an intensely fact-specific matter because the general common law public law duty of fairness operates in a “highly modulated and fact-sensitive way”.

46.

It may be that, as Mr Hansen submitted, despite the particular severity of the consequences of a decision to refuse an application under paragraph 320(7B) of the Immigration Rules, the Secretary of State is not bound to communicate doubts about a representation, document or information to an applicant. I recognise the force of his argument that to require her to do this in all cases where she is minded to refuse an application under paragraph 320(7A) or (7B) would significantly increase delays in operating the points-based system. I do not, however, consider it necessarily impractical for her to do so. But I do not consider that it is either necessary or appropriate to decide whether, on the facts of this case, the failure to go back to Mr Naidu was unfair.

47.

It is not necessary to decide whether the failure to go back to Mr Naidu was unfair because it is possible to resolve this case by focussing on the Wednesbury unreasonableness limb of the challenge to the second decision. It is, in my judgment, not appropriate to do so in the context of an appeal against a refusal to grant permission to apply for judicial review because of the fact-sensitive nature of the content of fairness because Mr Hansen suggested that, if permission is given, the Secretary of State might wish to place more material before the court. I therefore make no decision on the submissions based on the general common law public law duty of fairness.

48.

I turn to the Wednesbury unreasonableness limb of ground 2. How should an Entry Clearance Officer deal with a second application based on different evidence to that furnished where an earlier application has been refused under paragraph 320(7A) of the Rules before making a decision under paragraph 320(7B)? I do not consider that where a decision has previously been made refusing an earlier application under paragraph 320(7A) which, on the material before the decision-maker at the time of that decision is not Wednesbury unreasonable, the decision-maker can simply rely on that decision in an automatic way. I do not consider he can refuse a second application under paragraph 320(7B) whatever additional material is put before him in the second application to show that on the previous occasion there was in fact no deception.

49.

In this case the applicant, Mr Naidu, placed considerable additional material before the Entry Clearance Officer when making the second application, in particular the registration certificate dated 30 November 2012 for Unique Express under the Bombay Shops and Establishments Act giving the Vie Parle address. I have stated that, notwithstanding the documentation supplied with the second application, it may have been open to the Entry Clearance Officer to conclude that there was deception in the first application. But the problem in this case is that the notice of decision dated 23 January 2014 refers to none of the additional documentation.

50.

The second decision simply reiterates that an earlier decision was made that deception was used in a previous application. It relied on the first decision in an automatic way despite the different evidence. In these circumstances, I consider that the second decision was one that was made without taking account of relevant considerations; that is the documentation relating to the existence of Unique Express, and to the Mumbai premises and its link to Unique Express and Mr Naidu. As such, it was flawed on ordinary public law grounds. I am not able to say that, had the decisionmaker considered and taken account of the additional documentation, he would inevitably have reached the same decision as to whether a false document and deception had been used in the first application.

51.

I reject the suggestion that the email response by the Entry Clearance Manager that, even considering the additional evidence, she would have maintained her decision about deception, means that this is not an appropriate case for permission or relief. I do not consider that such ex post facto and retrospective justification suffices in the circumstances of this case, which is concerned with a finding that a document was false and deception has been used. There is an analogy with the approach of the courts to reasons given after a decision has been given. In R (Goldsmith) v Wandsworth LBC [2004] EWCA Civ. 1170, at [91] it was stated that “the court has to look at the decision at the time it was made and at the manner in which it was communicated to

the person or persons affected by it”. See also the cases summarised in Fordham’s Judicial Review Handbook, 6th ed 62.4.6. 52.

The flaw of making a decision without taking account of a relevant consideration is generally regarded as one of the limbs of the Wednesbury principles and so explained. It should, however, not be forgotten that in his rigorous analysis in Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374 (“the GCHQ case”) Lord Diplock put this flaw under his rubric of “illegality”. However it is classified, the failure to have regard to that material in my judgment took the Entry Clearance Officer and thus the Secretary of State outside the wide ambit of her power. I therefore conclude that the appellant succeeds on ground 2, albeit on its Wednesbury limb and for the reasons I have given rather than the procedural fairness limb, which was the primary way in which the case for him was put in the written and oral submissions. It is thus not necessary to decide whether, had the Entry Clearance Officer considered and taken account of the evidence before him on the second occasion, it would have been reasonable for him to conclude that the document submitted with the first application was a false document and that deception was used in that application. It suffices that it was not inevitable that he would have so concluded. For these reasons, I would allow this appeal.

53.

As to the order, section 15 of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”) deals with the Upper Tribunal’s judicial review jurisdiction. Section 16(8) of the 2007 Act deals with the position where the Tribunal has refused to grant leave to apply for judicial review, the applicant appeals against the refusal, and the Court of Appeal grants permission to appeal. It provides that the Court of Appeal may go on to decide the application for relief: see section 16(8)© and R (NB (Algeria)) v SSHD [2012] EWCA Civ 1050 per Lord Neuberger MR at [14].

54.

Mr Hansen submitted that, in this case, when granting permission, Burnett LJ did not reserve the substantive application for this court and that the Secretary of State has not therefore filed evidence. He argued that this court should remit the matter to the Upper Tribunal for a hearing of the substantive judicial review and fuller consideration of the issues. He argued that it is evident from the email response by the Entry Clearance Manager that there is material which the Secretary of State could put before a court hearing the matter to justify the decision. He also referred to the expertise of the Immigration and Asylum Chamber of the Upper Tribunal where these applications for judicial review are considered. The email was, however, before the court and he was not able to point to any additional material that would be put before the court.

55.

I have closely examined what the Entry Clearance Manager stated about the decision and why, as at the date of her email response, she would have maintained the decisions. I have also taken into account the expertise of the specialist appellate tribunal which would determine the case if remitted. In the context of a decision which has not taken account of relevant material, I do not consider either factor to justify remitting this case. I have therefore concluded that this is a case in which this court should decide the application for relief pursuant to the power given to it by section 16(8)© of the 2007 Act. Had the issue been what procedural fairness required in this situation, the case for remission would have been much stronger because of the fact-sensitive nature of the content of the duty to act fairly.

56.

The consequence, if my Lord agrees, is that permission will be granted, the decision will be set aside, and the matter remitted to the Secretary of State. She (through her officials) is the primary decision-maker and it is she who should reconsider whether Mr Naidu is to be regarded as barred from applying for entry clearance or leave to enter the United Kingdom for a 10 year period in all the circumstances of his case. Those circumstances include both the material before the Entry Clearance Officer when the second decision was made and the material not before or possibly not before him, such as the “Agreement of Leave and Licence” and the telephone bill. The question before her will be whether the material provided at the time of the second decision and when she remakes her decision suffices to show that deception was not in fact used on the first occasion, even though the original decision that the document containing the covering letter was a false document was one which, at the time of that first decision, could not be said to be Wednesbury unreasonable.

Lord Justice Lloyd Jones: 57.

I agree.

Case No: C4/2014/1424 Neutral Citation Number: [2016] EWCA Civ 159 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE (ADMINISTRATIVE COURT) His Honour Judge Sycamore [2014] EWHC 33 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/03/2016 Before : LORD JUSTICE LONGMORE LORD JUSTICE TOMLINSON and LORD JUSTICE McCOMBE ——————–Between : SECRETARY OF STATE FOR THE HOME DEPARTMENT - and ISIAS GAVIRIA-MANRIQUE

Appellant Respondent

—————————————-Julie Anderson (who did not appear below) (instructed by the Government Legal Department) for the Appellant Philip Nathan (instructed by Scudamores) for the Respondent Hearing date: 16 December 2015


Judgment

Lord Justice McCombe: (A) Introduction 1.

This is an appeal from an order/orders (dated 16 January and 15 April 2014) of His Honour Judge Sycamore (sitting as a Judge of the High Court) whereby the judge ordered that the Respondent’s detention by the Appellant in the periods between 21 January and 18 March 2008 and between 27 August and 17 September 2008 were unlawful, giving rise to a claim to general damages in respect of the first period and (by agreement of the parties recited in the court’s second order) to nominal damages in the case of the second period. The drafting of the two orders mentioned above leaves something to be desired and gave rise to some confusion at the hearing as to the extent to which those orders reflected the judge’s ultimate conclusions. The points of substance now to be resolved on this appeal are not, however, difficult to identify. The appeal is brought by permission finally granted by Sales LJ on 21 February 2015. (B) Background Facts

2.

The summary that follows was helpfully provided in the skeleton argument of Miss Anderson for the Appellant as to which there seemed to be no dispute.

3.

The Respondent is a Colombian national who entered the United Kingdom unlawfully and made an asylum claim on 1 May 1999. The claim was refused on 28 November 2001 and an initial appeal was dismissed on 31 January 2003. After appeal from that decision, the case was remitted for reconsideration but the Respondent’s claim was dismissed again on 10 February 2005. The Respondent was found not to have given credible evidence. After those proceedings, the Respondent’s appeal rights expired on 1 March 2005. In the meantime, and in the course of the proceedings just outlined, on 2 April 2003, in the Central Criminal Court after a trial before His Honour Judge Machin QC and a jury, the Respondent was convicted of kidnapping and blackmail and was sentenced to a total term of 5 years imprisonment; he was recommended for deportation. Notice of decision to deport was given to the Respondent on 8 March 2005. On 19 May 2005, on conclusion of the custodial portion of the criminal sentence, the Respondent was detained for the first time under immigration powers. On 27 July 2005 a deportation order was served and removal directions were set for 4 September 2005. Unfortunately, the Respondent’s disruptive behaviour prevented removal being effected on that occasion. On 6 September 2005 solicitors on his behalf submitted further representations to the Appellant, purporting to be a “fresh claim”, but those representations were rejected. That decision was challenged by judicial review leading to a new decision being taken by the Appellant, again rejecting the claim, on 6 February 2006. On 29 August 2006, the Respondent was released from the detention to which he had been subject since the May of the previous year.

4.

On 17 September 2007 the Appellant served the Respondent with further notice of liability to deportation, inviting representations as to why such deportation should not be carried out. That led to further representations on the Respondent’s behalf, based upon assertion that he was unlikely to re-offend and relying upon Article 8 rights based upon his relationship with his partner and the birth of a child on 25 August 2007, and upon Article 3 arguments not dissimilar it seems from points made in the earlier failed asylum claims. These representations were rejected on 25 November

2007. A letter of that date was apparently served on the Respondent on 4 December 2007. However, at this stage, it seems things started to go wrong. 5.

What the Appellant failed to do was to serve, at the same time as the letter of 25 November, a “Notice of Decision” (AIT1), notifying the Respondent of a decision to refuse to revoke the deportation order of 26 July 2005. Such a notice would have informed the Respondent in precise terms of a right of appeal. It is accepted by the Appellant that this was an oversight. In evidence in the current proceedings, the Respondent stated that, notwithstanding this omission, he asked an interpreter (whom he identified by name) to assist in the lodging of an appeal. It seems that, if the Respondent had been served with proper notice of such a decision, any right of appeal would have expired on 19 December 2007.

6.

At this time the Respondent was on bail from immigration detention and was detained once more, on complying with reporting requirements of that bail, on 21 January 2008. He was then served with removal directions for 25 January 2008. On the same day, solicitors on his behalf, believing that notice of a relevant decision had been duly served, applied to the Asylum and Immigration Tribunal (as it then was) (“AIT”), under rule 10 of the Immigration and Asylum Appeals (Procedure) Rules 2005, for permission to appeal out of time. The application was rejected, also on the same day, by a Senior Immigration Judge who concluded that there were “no special circumstances” disclosed which would permit the grant of an extension of time in which to appeal. However, that evening Mr Nathan for the Respondent managed to persuade the duty judge of the Queen’s Bench Division that the Respondent’s removal from the country should be stayed, pending judicial review proceedings, and an order was made accordingly.

7.

In accordance with an undertaking given to the duty judge at the time of the making of the order on 25 January 2008, the present proceedings were issued on 29 January 2008, challenging the removal directions and the Tribunal’s order refusing an extension of time in which to appeal.

8.

In the meantime, the Respondent remained in detention and his position was reviewed on 21 February 2008. It appears that he had applied to the AIT for bail on 6 February, but had withdrawn that application. On the review, it was decided to continue detention on the grounds that there was reason to believe that the Respondent would fail to comply with release conditions, because of his previous failure to leave the UK when required to do so and because of his absence of ties rendering it unlikely that he would stay in one place.

9.

On or about 6 March 2008, as we are told, the error in December 2007 in failing to serve the notice of decision came to light – how this happened is not clear. It seems that it was decided in the Appellant’s department to serve the Respondent with such a notice. A copy document of that character (undated) appears in the appeal bundle; the appeal bundle index states that its date was 14 March 2008. We are told that, following service of that notice, the Respondent initiated another appeal. The Respondent was released on bail on 18 March, thus bringing to an end the first period of detention.

10.

On 2 May 2008, the Respondent was arrested in connection with an assault on his former partner and on 27 August he pleaded guilty to a criminal charge (unidentified

in the papers) and was sentenced to 6 months imprisonment. Given the date of his arrest, it seems that the custodial part of that sentence was immediately at an end, but he was then detained again under immigration powers on 28 August and remained so detained until 17 September when he was again released on bail. That was the second period of detention ultimately challenged in the proceedings. 11.

On 8 October 2008, on the determination of his appeal against the decision of November 2007 triggered by the subsequent notice in March, a reconsideration was ordered once more. On that reconsideration, which, for some unexplained reason, was not completed until 13 July 2010, the Appellant again refused to revoke the deportation order made 5 years previously in July 2005.

12.

A further appeal followed and we are told that it was successful (on 24 May 2011) to the limited extent of permitting the Respondent to remain in the UK until the completion of proceedings relating to his child. However, on 26 July of that year the Respondent was convicted of yet another offence, this time burglary and was sentenced to 1 year and 8 months imprisonment; he was once more recommended for deportation. Notwithstanding that recommendation which no doubt the Appellant received with enthusiasm, it took until 8 March 2012 for a further decision to be made not to revoke the deportation order that was nearing seven years of age.

13.

On 19 February 2013, the Respondent was finally deported to Colombia. (C) The Proceedings

14.

As indicated already, the proceedings as originally issued were fairly narrowly limited to a challenge to the removal directions of January 2008 and to the Tribunal’s refusal to extend time for the bringing of an appeal against what was thought to have been an immigration decision served on 4 December 2007. There was no challenge to the lawfulness of detention.

15.

In the light of the history that I have outlined, these first issues lapsed and the proceedings, as finally amended, were confined to seeking declarations as to the unlawfulness of the detention of the Respondent, in the two periods which I have mentioned, and damages. It appears that permission to apply for judicial review in this amended form had been granted by Stewart J on 10 May 2013. In his judgment under appeal, Judge Sycamore records that the Appellant had at that stage conceded that the Respondent had been unlawfully detained pursuant to the operation of the unlawful and unpublished policy considered in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, but was entitled to nominal damages only, on the basis that he would have been lawfully detained in any event. The Respondent continued to assert that the Appellant had also failed to comply with the relevant published policy and that he was entitled to general damages.

16.

The Appellant’s stance before the judge (recorded in paragraphs 12 and 13 of the judgment) was that while no notice of decision not to revoke the deportation order had actually been served in December 2007 it was believed that there had been such service and that the Respondent also believed that he had been given such notice, this being demonstrated by his asking the translator for assistance with an appeal. Thus, the Appellant argued, sufficient notice had been given or, if it had not, the omission was immaterial.

17.

The judge noted in his judgment that the letter actually served in December 2007 had not said expressly that the Appellant had decided not to revoke the deportation order, which was the decision that would have triggered the statutory right of appeal. The judge recited the requirements in the regulations that notice of an immigration decision must be given and that the notice must contain, or be accompanied by, advice as to the right of appeal. He noted that the document eventually served in March 2008 contained this information. Thus, the judge found the Appellant had failed to serve notice of an appealable immigration decision and that, without it, there was never any prospect of “imminent removal” sufficient to justify detention.

18.

The crux of the judge’s decision in respect of the first period of detention can be found in paragraphs 20 and 22 of the judgment where the judge said this: “20. As can be seen the justification for detention was a combination of likelihood to abscond and imminent removal. Given my findings in respect of the significance of the absence of a formal Notice of Decision at the time the defendant made her decision to detain removal could not be effected and as such could not be said to be imminent. The defendant sought to argue that she was entitled to make that decision because both she and the claimant believed that he had been correctly informed in a manner which was regulation compliant. For the reasons which I have already given I disagree. The only possible legitimate justification for detention would have been as to the suggested risk of absconding. In any event I observe that by 21 February 2008, when the defendant prepared a monthly progress report in relation to the claimant, the reasons given for continuing detention no longer referred to imminent removal. By this time judicial review proceedings had been commenced but the defendant had not discovered that she had failed to serve the Notice of Decision. ... 22. In my judgment, against the background of the claimant’s bail record, the availability of an address and the fact that he was subsequently bailed by the defendant it cannot be said, as the defendant sought to argue, that any lack of materiality in respect of the procedural flaw is demonstrated. Had the Notice of Decision been correctly served at the appropriate time and had, the claimant exercised his right of appeal then, absent the prospect of imminent removal, it cannot be said that the Secretary of State would have detained the claimant in those circumstances. I agree with the submission made on behalf of the claimant that the failures on behalf of others, including the claimant, to notice the absence of the Notice of Decision may go to the question of quantum of damages but have no bearing on the assessment as to whether the claimant’s detention was unlawful as a consequence.”

He further concluded that from 6 March 2008, when it must have been obvious to the Appellant that the Respondent would have wished to appeal against the decision of which he was to have notice, the Appellant delayed unreasonably in releasing him. Thus, the whole period of detention up to the date of release (18 March) was unlawful and sounded in more than nominal damages. 19.

In respect of the second period, the judge held that detention would have been justified for the prevention of disorder and crime and there was, therefore, no claim to general damages in respect of that period. Thus, taking account of the concession, the court’s order of 16 April 2014 somewhat opaquely records as follows: “It is agreed by the parties THAT: The physical detention of the Claimant by the Defendant between 21st January and 18th March 2008, and between 27th August and 9th September 2008, was unlawful for the reasons given in R(oao Lumba) v Secretary of State for the Home Office [2012] 1 AC 245 §§ 16-18, and 39. ... The Claimant was otherwise lawfully physically detained between 27th August and 17th September 2008 but remains entitled only to nominal damages in respect of that period due to the foregoing agreement.”

20.

Permission to appeal to this court was initially granted, on 14 July 2014, by Sir Stanley Burnton on the basis that, as he saw the matter, the order of 16 April 2014 did not reflect the judgment handed down, in that the judge appeared to reject entirely the claim in respect of the second period. This may have been because he shared my initial failure to appreciate the limited concession by the Appellant in respect of the impact of Lumba, as recited in that order. A further order, granting permission to appeal more generally, was made by Sales LJ on 10 February 2015. (D) The Appeal and my conclusions

21.

On the present appeal, Miss Anderson for the Appellant took three points.

22.

First (“Ground 1”), she argued that the Judge erred in not finding that the Appellant’s authority to detain derived from the recommendation for deportation made by Judge Machin QC in sentencing the Respondent in April 2003 so that (under the statute) any alleged public law error by the Appellant in making the decision to detain could not give rise to any liability in damages. In this respect she relied upon the decision of this court in R (Francis) v Secretary of State for State for the Home Department [2014] EWCA Civ 718.

23.

Secondly (“Ground 2”), it was submitted that the Appellant was entitled to rely in good faith on prior administrative acts and a decision of the statutory appellate authority as both being valid when making the decision in issue. In the absence of evidence that the decisions taken were obviously wrong they could properly be relied upon. The Appellant, it was argued, was entitled to rely on the decision of the AIT

refusing to extend time for an appeal even if it transpired that there was a flaw in that decision which invalidated it. Miss Anderson relied upon Secretary of State for the Home Department v Draga [2012] EWCA Civ 842. 24.

Thirdly (“Ground 3”), it was argued there was no material public law error in this case since (as per ground 1) the authority to detain derived from the recommendation for deportation, and, in any event “the allegations did not permit the quashing of the Secretary of State’s decision in retrospect” (skeleton argument paragraph 47). It followed that the question was whether the Respondent would have been detained (absent any relevant error) and whether such a decision would have been lawfully open to the Appellant. Miss Anderson argued that the judge assumed that the Respondent would not have been detained in any event and that that assumption was wrong.

25.

Summarising the further points made in support of this third submission, Miss Anderson’s point (taken from paragraph 52 of the skeleton argument) was that a correct application of the Lumba case would have required the judge to ask whether the Respondent would have been detained had the procedural error not been made, i.e. if the notice of decision had been properly served at the appropriate time. She argued that the failure to serve the notice of decision at the correct time had caused no material error because all parties worked on the hypothesis that valid notice of a right of appeal had been given. On an application of the “but for” test, if there had been no error in service the appeal would still not have been effectively exercised and detention would have followed in any event.

26.

Miss Anderson’s skeleton argument contained certain points arising out of the “concession” (to which I have referred) made by the Appellant during the course of the proceedings that the Appellant had been detained under the unlawful policy considered in Lumba. However, she did not pursue those points at the hearing and, as it seems to me, in any event, they do not take the argument any further than the three grounds which I have tried to summarise above. Moreover, the Appellant’s Notice only challenges the order of (sic) 14 January 2014 and the finding of entitlement to general damages in respect of the first period of detention. The entitlement to nominal damages in respect of the second period, recorded in the order of 15 April 2014 is not called into question.

27.

It will be seen, therefore, that the arguments for the Appellant before this court were considerably wider in range than those presented to Judge Sycamore. Ground 1

28.

Miss Anderson’s first point – that the Appellant’s power to detain arose and continued from the obligation to detain flowing from the recommendation for deportation itself – depends upon the proper construction of the relevant detention powers and obligations. These are to be found in section 5(5) of, and Schedule 3 to, the Immigration Act 1971. Section 5(5) provides: “(5) The provisions of Schedule 3 to this Act shall have effect… with respect to the detention or control of persons in connection with deportation.”

29.

The relevant parts of schedule 3 at the relevant time were (as was common ground) those set out in Miss Anderson’s skeleton argument at paragraph 23 as follows: “2.(1) Where a recommendation for deportation made by a court is in force in respect of any person, [and that person is not detained in pursuance of the sentence or order of any court], he shall, unless the court by which the recommendation is made otherwise directs [or a direction is given under sub-paragraph (1A) below,] be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case [or he is released on bail]. (1A).. (2) Where notice has been given to a person in accordance with regulations under [section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision)] of a decision to make a deportation order against him, [and he is not detained in pursuance of the sentence or order of a court], he may be detained under the authority of the Secretary of State pending the making of the deportation order. (3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal of departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless [he is released on bail or] the Secretary of State directs otherwise).”

30.

The absolute obligation (and hence power) to detain, arising from the recommendation for deportation, upon which Miss Anderson relied for this first ground, is to be found in paragraph 2(1) of Schedule 3. It can be seen that when a recommendation for deportation has been made, and until a deportation order is made, the subject of the recommendation is required by this provision to be detained under this paragraph, if he is not already detained pursuant to a sentence or order of the court. This obligation applies unless the Secretary of State directs release or the subject of the recommendation is released on bail.

31.

In this case, the sequence of events was: sentence and deportation recommendation (2 April 2003), end of custodial part of sentence (19 May 2005) deportation order (27 July 2005), release on bail (29 August 2006).

32.

Thus, sub paragraph (1) required that the Respondent be detained until the making of the deportation order from 2 April 2003 until 27 July 2005, unless he was already detained serving his sentence. In fact, he was in custody serving his sentence until 19 May 2005. Therefore, looking at the language of the statute alone, sub-paragraph 2(1) bit from that date in May until 27 July when the deportation order was made. This is

because the recommendation for deportation was in force and he was no longer detained in pursuance of his sentence. Accordingly, sub-paragraph 2(1) directed that “he shall… be detained pending the making of a deportation order in pursuance of the recommendation…”, unless certain exceptions applied, which they did not. When the order was made on 27 July 2005, at that stage under sub-paragraph 2(3), there was still an obligation to detain him because he was “already detained by virtue of subparagraph (1)…”: see the words in parentheses in sub-paragraph (3), “unless he [was] released on bail or [the Appellant] direct[ed] otherwise”. 33.

On 29 August 2006, however, the Respondent was released on bail. Accordingly, on the statutory language, it seems to me that the obligation to detain the Respondent under sub-paragraph 2(1), which began with the recommendation for deportation and continued pending the making of the deportation order, came to an end on 29 August 2006 when he was released on bail. Thereafter, by virtue of the deportation order being in place, the Appellant retained a discretion to detain the Respondent under subparagraph 2(3). Indeed, it appears from the documents that it was that discretion which the Appellant expressly invoked on 10 January 2008 when deciding to take the Respondent back into detention, a decision implemented on 21 January.

34.

For her part, however, Miss Anderson argued that on the return to detention in January 2008, the relevant authority to detain still derived from sub-paragraph 2(1) as being a mandatory obligation to detain under that paragraph. Accordingly, no error of public law by the Appellant in making the decision to detain or to continue to detain could give rise to any liability in damages. For this purpose she relied upon the decision of this court in R (Francis) v Secretary of State for the Home Department [2015] 1 WLR 567.

35.

In that case, the court held that there was a contrast between the discretionary power to detain under sub-paragraph 2(2) and the obligation to detain under sub-paragraph 2(1). Further, sub-paragraph 2(3) had the effect that, following the making of a deportation order in respect of a person already detained under either sub-paragraph 2(1) or 2(2), the detention was to continue on the same basis. Thus, the detention of a person who had been detained under sub-paragraph 2(1) continued, under subparagraph 2(3), to be pursuant to the statutory authority and, so long as that authority lasted, an action for false imprisonment could not be maintained in respect of the detention so authorised.

36.

In my judgment, however, that is not to say that the authority/obligation to detain under sub-paragraph 2(1), which is expressly provided to terminate upon a decision of the Appellant to release or upon a release on bail, revives when the Secretary of State decides to detain once more (as in this case) or when bail is revoked.

37.

It is to be noted moreover that the Francis case can be immediately distinguished from the present case on its facts. The detainee in that case remained in continuous detention from the date of the recommendation for deportation, through the expiry of his criminal sentence and up to and beyond the making of a deportation order, until his ultimate release on bail. All the periods of detention under challenge in his case related to periods prior to that final release. The detention had begun under subparagraph 2(1) and the obligation to detain under that sub-paragraph continued under sub-paragraph 2(3), because he remained in detention at the time of the deportation order and there had been no release either on bail or by decision of the Secretary of

State. It was not a case, like the present, where there had been detention pursuant to sub-paragraph 2(1), continued under sub-paragraph 2(3), followed by a release on bail and then a new detention thereafter. It seems to be, therefore, that the statutory obligation to detain ended with that release. 38.

It should be noted further, in my judgment, that even the detention under the statutory authority of sub-paragraph 2(1) is not unlimited. In Francis it was held that the final period of detention, although found to be pursuant to an authority conferred by subparagraph 2(1) and continued by virtue of sub-paragraph 2(3), was subject to a presumed intention of Parliament to restrict the authority to detain to cases for which that authority to detain was conferred. As Moore-Bick LJ put it in that case (at [47][48]: “47. I have no doubt that he Hardial Singh principles apply to detention under paragraph 2(I) of Schedule 3 to the 1971 Act. The purpose of detention under that paragraph is to facilitate deportation and in the absence of any indication to the contrary Parliament must be taken to have intended that persons should be detained only for that purpose. Once the purpose of detention has become incapable of being achieved, detention can no longer be justified and it cannot have been Parliament’s intention that it should then continue. In my view Parliament must also have expected the Secretary of State to act with reasonable diligence and expedition to remove the detainee and must, in the absence of any contrary indication, be taken to have intended and detention should continue only for a reasonable period. In so far as paragraph 2(I) (and, on the making of a deportation order, paragraph 2(3)) contains a statutory obligation to detain, the Hardial Singh principles can be understood as implied limitations on the scope of an otherwise unqualified direction. 48. It follows that in my view the statutory authority for the detention of the claimant ran out on 1 June 2010 and his detention became unlawful. In the light of Lord Brown’s analysis in R (Khadir) v Secretary of State for the Home Department [2006] 1 AC 207 I would accept that the power to detain did not wholly cease to exist and, if the Secretary of State is able at some time in the future to make arrangements for the claimant to travel to Jamaica, it may be open to her to detain him once more to ensure that he leaves the country. However, between 1 June 2010 and 29 September 2011 his detention was in my view unlawful and an action for false imprisonment will lie. ”

39.

I, therefore, do not accept Miss Anderson’s first argument. Grounds 2 and 3

40.

Given the broad ambit of the various arguments raised under this head of appeal and the rather different area of dispute decided by the learned judge below, it seems to me

to be the easiest and fairest course to analyse the position in law, as it appears to me to be, with regard to the situation as it developed from 25 November 2007 to 18 March 2008 on the facts as found by the judge. 41.

It was common ground here and below that on 25 November 2007, the Appellant reached a decision to reject the Respondent’s latest applications for asylum, humanitarian protection and Article 8 claims. It was also accepted that at or about the same time the Appellant had decided once more not to revoke the deportation order of April 2005 and had intended to serve notice of that decision also. The letter communicating the first decision was served on or about 4 December 2007. The Appellant’s officials also thought that notice of the second decision had been served at the same time (although, to my mind, the wording of the subsequent detention minute of 10 January 2008 is somewhat opaque on this point). Accordingly, working on the assumption that any rights of appeal had expired on the 19 December 2007, the Appellant decided on 10 January 2008 to detain the Respondent, because his removal was thought to be imminent and he was likely to abscond. That decision was served (together with removal directions for 25 January) on 21 January 2008 and the Respondent was detained on that day.

42.

Given the existence of the deportation order, there was clearly a power to detain under paragraph 2(3) of Schedule 3 to the Act, and given the situation as the Appellant thought it to be, it is difficult to see how that decision to detain was rendered unlawful, simply because of an omission formally to serve the notice of the decision not to revoke the deportation order. It seems to me that so much is clear from the judgment of Millett LJ in Ullah v Home Office [1995] Imm AR 166 (quoted in Draga at [45]) as follows: “Accordingly, [Counsel for the Secretary of State] rightly concedes that if the person served with the notice was not a person liable to deportation, or if the Secretary of State had not made a decision to make a deportation order against him, or had made such a decision in bad faith, then the notice would be bad and the detention would be unlawful. In none of those cases would there have been a decision of the kind contemplated by paragraph 2(2). What the paragraph does not require, however, is that the decision should be the right decision, or without flaw, or otherwise impervious to successful challenge by way of judicial review. A decision made by the Secretary of State in good faith against a person liable to be deported is a decision within the contemplation of the paragraph even if it later appears that it is a decision which he should not have made or which he should not have made without further consideration.”

43.

At this stage there was no question of the Appellant relying upon the decision of the AIT which was only made subsequently on 25 January 2008. Equally, however, when that decision did become known to the Appellant, clearly demonstrating that the Respondent’s advisers believed that a right of appeal had arisen which they had sought to invoke on the Respondent’s behalf, the Appellant can hardly be blamed for thinking that continued detention was justified. I accept Miss Anderson’s submission

that the Appellant was entitled to consider that any right of appeal had been exhausted and that detention remained justified: see by analogy Draga at [65]-[66] per Sullivan LJ, deciding that the Secretary of State would be entitled to consider the end of a right of appeal against the decision to make a deportation order as a lawful basis to make a deportation order and to detain the subject under sub-paragraph 2(3) of Schedule 3. 44.

Next, the present judicial review proceedings were launched on 29 January 2008, contesting the removal directions and the AIT’s refusal of an extension of time in which to appeal, but no challenge was made to the lawfulness of the detention. As already noted, on 6 February 2008, the Respondent made an application to the AIT for bail but that was withdrawn on 11 February. Again, this hardly suggests that the continuation of detention was unlawful at that time. The detention was reviewed on 21 February when it was decided to continue it because of an asserted reason to believe that conditions attached to temporary admission would not be complied with. (It was not then said by the decision-maker that removal from the country was imminent).

45.

No doubt at this stage question marks would have begun to arise as to whether detention could be justified much longer in view of the pending judicial review proceedings. Indeed, it was on or shortly after 21 February 2008 (the first amended grounds of claim are so dated) that the first challenge to lawfulness of detention was made, but then only on the basis that the decision maker had been wrong in deciding that the Respondent would not comply with conditions of temporary admission. No complaint was made on the basis that it was no longer being said by the Appellant that removal from the UK was imminent. The review of 21 February indicated that the case would continue to be reviewed further on a regular basis.

46.

As I have already said, no explanation has been given of how the failure to serve the original notice of decision (as intended on 4 December 2007) came to light. The fact that the error had been made was known by 6 March 2008. The judge found that there was no justification for detention beyond that date: see paragraphs 23 and 24 of the judgment. The judge made that assessment after perusal of “case record sheets” kept by the Appellant, which we have not seen. In the circumstances, I can see no basis for interfering with the judge’s decision on the facts in respect of the period from 6 March until the Respondent’s release on 18 March 2008.

47.

On the analysis above, it seems to me that the original decision to detain made on 10 January 2008 was not unlawful and only came into question shortly after the 21 February 2008 review at about the time when detention was first challenged.

48.

Miss Anderson’s ground 3 was, it seems, directed to the possibility that the original decision was unlawful because of the failure to serve the notice of decision. On this basis, she submitted that one must ask what would have happened if that notice had been served (see Lumba) and the answer (she said) was “it was plain that no valid appeal would have been lodged in time”, because “all parties…considered that a valid appeal right had been given”: see paragraph 52 of the skeleton argument. However, while (with respect) I have not found this section of Miss Anderson’s argument at all easy to follow, it does not seem to me that it takes her case any further than the view that I have taken so far on the lawfulness of the detention decision when originally made. I have accepted her submission that by 25 January 2008 the Appellant was entitled to assume that appeal rights had expired. That, however, would not

necessarily relieve the Appellant from any failure to take a different decision at a later date. 49.

In all the circumstances, therefore, I consider that the judge was wrong to hold that the first period of detention was unlawful when initiated on 10 January 2008 or at any time until the administrative error in failing to serve a formal notice of decision was appreciated on 6 March 2008. However, as already indicated, I can see no basis on which to interfere with his finding in respect of the period after that date until the Respondent’s release on 18 March 2008.

50.

Accordingly, I would allow the appeal to the extent of declaring that the Respondent was unlawfully detained, so as to give rise to a claim for general (as opposed to nominal) damages, in respect of the period from 6 to 18 March 2008 only, instead of for the whole period from 21 January to 18 March 2008 as found by the judge. The agreement, recited in the order of 15 April 2014, that the Respondent was unlawfully detained in the two periods giving rise to nominal damages only should, in my view, remain undisturbed.

51.

In proposing the resolution of this appeal as I do, it will be apparent that the arguments and citation of authority before us have been very different and far more extensive than were deployed before the judge and, for my part, I can well understand why the judge reached the decision that he did.

Lord Justice Tomlinson: 52.

I agree.

Lord Justice Longmore: 53.

I also agree.

Case No: C4/2014/2829 Neutral Citation Number: [2016] EWCA Civ 166 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM QUEEN’S BENCH DIVISION, ADMINISTRATIVE COURT Ms GERALDINE CLARK (SITTING AS A DEPUTY) HIGH COURT JUDGE Royal Courts of Justice Strand, London, WC2A 2LL Date: 22/03/2016 Before : LORD JUSTICE LAWS LORD JUSTICE DAVIS and SIR TIMOTHY LLOYD ——————–Between : R on the Application of CK (Afghanistan) & Others - and The Secretary of State for the Home Department

Appellant Respondent

—————————————-Mr Greg Ó Ceallaigh (instructed by Samars Solicitors) for the Appellant Miss Catherine Rowlands (instructed by The Government Legal Department) for the Secretary of State for the Home Department Hearing date: 9 February 2016


Judgment

LAWS LJ: INTRODUCTION 1.

This is an appeal, with permission granted by Sharp LJ on 17 June 2015, against the decision of Ms Geraldine Clark sitting as a Deputy High Court Judge in the Administrative Court on 30 July 2014. The Deputy Judge dismissed the appellants’ applications for judicial review brought to challenge the refusal of the Secretary of State to exercise her discretion (as the Deputy Judge put it) under the Dublin II Regulation to allow their asylum claims to be examined in the United Kingdom.

2.

The appellants are Sikhs of Afghan nationality. The first and second appellants, born in the 1980s, are man and wife. The third appellant is one of their daughters. Her attributed date of birth is 1 January 2009. They claim to have been victimised by the Taliban in Afghanistan on account of their religion. It is said in particular that the second appellant was raped by members of the Taliban in front of her husband and mother-in-law. The first appellant’s father is said to have been murdered, and the first appellant himself kidnapped and only released after payment of a bribe. The Deputy Judge summarised their fortunes after leaving Afghanistan as follows: “2… Following a long and difficult journey from Afghanistan, they arrived in France in August 2012 where they were briefly detained and fingerprinted as asylum seekers. 3. However they chose not to remain in France. The First Claimant had an adult brother and sister living in London who had come to the United Kingdom as refugees some 16 years ago and who are now British citizens. The First Claimant entered the United Kingdom using a false passport and, when his presence in London was discovered on 23 September 2012, he claimed asylum here. He was subsequently joined by the Second and Third Claimants who entered the United Kingdom on 29 October 2012 and immediately claimed asylum here. Around November 2012 the Second Claimant became pregnant with her second child, who was born on 19 August 2013. She discovered that she was pregnant in mid-December 2012. On 16 December 2012 the Claimants moved to accommodation in Bolton.”

DUBLIN II 3.

The Dublin II Regulation (Council Regulation (EC) No. 343/2003) laid down, in the words of Article 1, “the criteria and mechanism for determining the Member State [of the European Union] responsible for examining an asylum application lodged in one of the Member States by a third-country national”. A hierarchy of criteria for determining the responsible Member State is set out in Chapter III (Articles 5 – 14). While the overall aim of the Regulation was to establish an effective regime constituted by these criteria (see in particular Recitals (1), (3) and (4)), provision was made for departures from the regime in certain circumstances. Thus Article 3, which appears in Chapter II (“General Principles”), provides:

“1. Member States shall examine the application of any third country national who applies at the border or in their territory to any one of them for asylum. The application shall be examined by a single Member State, which shall be the one that the criteria set out in Chapter III indicate is responsible. 2. By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility…” Chapter IV is headed “Humanitarian Clause”. paragraphs (1) and (2) of which provide:

Its only content is Article 15,

“1. Any Member State, even where it is not responsible under the criteria set out in this Regulation, may bring together family members, as well as other dependent [sic] relatives, on humanitarian grounds based in particular on family or cultural considerations. In this case, the Member State shall, at the request of another Member State, examine the application for asylum of the person concerned. The persons concerned must consent. 2. In cases in which the person concerned is dependent on the assistance of the other on account of pregnancy or a new-born child, serious illness, severe handicap, or old age, Member States shall normally keep or bring together the asylum seeker with another relative present in the territory of one of the Member States, provided that family ties existed in the country of origin.” THE APPELLANTS’ REPRESENTATIONS AND THE SECRETARY OF STATE’S DECISION 4.

Under the ranked criteria set out in Chapter III of Dublin II it was France, where the appellants had first entered the European Union, which was responsible for examining their asylum claims. In those circumstances the appellants were liable to be removed to France under powers conferred by the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. On 1 October 2012 in the case of the first appellant and 31 December 2012 in the case of the second and third appellants, France accepted responsibility for examining their claims. Directions for their removal to France were issued on 26 February 2013.

5.

On 28 February 2013 the appellants’ solicitors made written representations to the Secretary of State. They sought a decision that their clients’ asylum claims be dealt with in this jurisdiction, having regard to Articles 3 and 15 of Dublin II. They relied also on Article 8 of the European Convention on Human Rights, and on s.55 of the

Borders, Citizenship and Immigration Act 2004. They stated that the second appellant was then 16 weeks pregnant and had been suffering from “severe symptoms of stress and anxiety”. The solicitors’ letter continued: “[The first appellant] has a brother… and a sister… in the United Kingdom. Both are British citizens who were originally recognised as refugees… Our clients have received considerable comfort from their family members in the United Kingdom and are anxious not to be returned to a country in which they know no one and have no familial support.” 6.

The appellants’ applications were refused by the Secretary of State on 15 March 2013. As regards Article 3.2 of Dublin II, the Secretary of State considered that there were no “exceptional circumstances” to justify an exercise of discretion in the appellants’ favour. Article 15 did not arise because it only fell for consideration upon a request being made by the State that would otherwise be responsible. As for Article 8, the Secretary of State observed that the first and second appellants had “only been in the UK since September 2012 and in such a short time it is not accepted that your client[s have] established any meaningful or significant private life in the UK”. I should also set out this passage cited by the Deputy Judge at paragraph 43 of her judgment: “Your client [has] not been financially, physically, or emotionally dependant on her brother in law and sister in law as they had clearly been apart for a considerable time. There is not any evidence of anything beyond what is usually expected of adult relatives. Your client can maintain contact with her brother in law and sister in law by way of telephone calls and emails. Your client’s brother in law and sister in law can also visit your client in France as they are British Citizens.” The Secretary of State certified the human rights claims as clearly unfounded, with the consequence that the appellants might not appeal against the decision while they remained in the United Kingdom.

THE JUDGMENT BELOW 7.

The Deputy Judge concluded, in light of authority which she summarised, that “decisions taken under the Dublin II Regulation are not susceptible to challenge by judicial review proceedings save where the enforcement of the decision would lead to inhuman or degrading treatment, which is not alleged in this case” (paragraph 17). However, in case she was wrong about that, she proceeded (paragraphs 31 ff) to consider the merits of the case. She accepted that the Secretary of State had made a legal error in concluding that Article 15 of Dublin II only fell for consideration upon a request being made by the State that would otherwise be responsible: the decision of the Court of Justice of the EU in K v Bundesasylamt [2013] 1 WLR 883 (to which I will come) showed that that was so as regards Article 15.2. However, the Deputy Judge concluded (paragraph 38) that even if the Secretary of State had proceeded to a decision under Article 15.2 it was “inevitable” that she would still have declined to examine the asylum claims in the UK; and as I have indicated the Judge cited (paragraph 43) the passage from the decision letter which I have set out above. Overall the Deputy Judge concluded that had the appellants been entitled to bring a

judicial review claim, it would have failed on the merits. She addressed Articles 3.2 and 15.2 of Dublin II, ECHR Article 8 and s.55 of the 2009 Act. THE ISSUES IN OUTLINE 8.

In his skeleton argument (paragraph 60) Mr Ó Ceallaigh for the appellants submitted that “the decision as to whether to apply the humanitarian clause in Article 15.2 is subject to challenge on ordinary public law grounds”. This was somewhat refined at the hearing, where he argued that a Dublin II decision to remit an asylum claim to another Member State is justiciable on Wednesbury grounds ([1948] 1 KB 223) or by reference to ECHR Article 8. The position taken by Miss Rowlands for the Secretary of State was, with respect to her, a little difficult to discern precisely. She was at pains to insist that a decision taken under Dublin II was not justiciable at the suit of the affected individual; but there might – in theory, I think she would say – be an Article 8 claim if it did not depend on or imply a putative violation of Article 15 of Dublin II. She submits that no such claim can lie in the present case. Both parties accepted (correctly on the authorities) that a claim might lie under ECHR Article 3 if it were shown that the asylum seeker’s transfer to another Member State would expose him to a real risk of inhuman or degrading treatment: in such a case the very premise of Dublin II – that every Member State may be relied on to administer asylum claims properly – would be negated.

9.

These rival contentions, refined and qualified as they were, expose an issue of principle which, as I shall show, is a recurrent theme in the cases. ECHR Article 3 aside, what if any is the scope for challenge to the removal of the affected individual to another Member State following a decision under Dublin II that the other State is responsible for the examination of his asylum claim? The issue is one of principle because its resolution requires the court to find an accommodation between two competing legal imperatives: (1) the vindication of Dublin II as a regime for the distribution at an inter-State level between the Member States of responsibility for the determination of asylum claims, and (2) the vindication of individual claims of right which might be denied by a rigorous enforcement of the inter-State regime. Miss Rowlands says the first of these predominates; Mr Ó Ceallaigh the second. The learning, unfortunately, swims between the two.

10.

If the court concludes that it is open to the appellants to challenge the Secretary of State’s certificate that their Article 8 claims were clearly unfounded, there remains an issue as to the substantive merits of the case.

THE INTER-STATE REGIME 11.

Here I will give some account of the cases which apparently favour the view that a Dublin II decision cannot be challenged by an individual (save in effect on ECHR Article 3 grounds). In AR (Iran) v Secretary of State [2013] EWCA Civ 778 Sir Richard Buxton (with the agreement of Underhill and Moore-Bick LJJ) stated at paragraph 29: “The whole point of the Dublin II arrangements is that they assume that it will not matter to the outcome where in the Community an asylum application is heard. If… the member states cannot pick and choose amongst themselves as to the

validity and reliability of particular state systems, a fortiori an individual applicant cannot do so.” And at paragraph 31: “The whole point of the Dublin II jurisprudence is that while member states may complain of defects in procedure the asylum seeker may not do so.” 12.

In G v Secretary of State [2005] EWCA Civ 546 the question was whether the appellant’s removal from this country to Italy for her asylum claim to be examined in that jurisdiction would violate her rights guaranteed by ECHR Article 8. It was submitted that the decision to remove her “flew in the face” of Article 15 of Dublin II. Maurice Kay LJ (with whom Neuberger and Buxton LJJ agreed) stated at paragraph 25: “[t]he effect of Article 15 is not to confer a freestanding substantive right on individual applicants. Rather, it is to regulate the relationship between two or more Member States”. I shall have to return to the case of G. It was cited by Stadlen J in Kheirolliahi-Ahmadrogani v Secretary of State [2013] EWHC Admin 1314, in which the judge undertook a comprehensive review of the authorities. At paragraph 47 he stated: “… [T]he words ‘only insofar as those provisions affect the course of proceedings between Member States’ in paragraph 2.2 of Com (2001) 447 final [a reference to the travaux préparatoires of Dublin II] are to my mind powerful support for the proposition that the intention was that [Dublin II] should not confer rights on individuals and it was not intended that alleged breaches of the provisions of [Dublin II] should be actionable at the suit of asylum seekers or other individuals.”

13.

As regards the English authorities Stadlen J concluded (paragraph 166): “In my judgment as a matter of construction of the Dublin II Regulation and in the light of the travaux preparatoires, the Regulation does not confer on individuals a right to require Member States to allocate responsibility for examining their asylum application in accordance with the provisions of the Regulation and alleged breaches of those provisions are not actionable at the suit of an individual. Further I do not consider that there is binding Court of Appeal authority which would compel the contrary conclusion…” Other first instances decisions are Habte [2013] EWHC 3295 (Admin) (Lewis J) and Jeyarupan [2014] EWHC 386 (Admin) (Mr Philip Mott QC sitting as a Deputy High Court Judge).

14.

Ms Clark giving judgment in the present case also cited the decision of the Court of Justice in Abdullahi v Bundesasylamt (Case C-394/12). It is instructive to note the facts. Having travelled through Greece and Hungary the applicant, a Somali national, claimed asylum in Austria. The Austrian authorities mistakenly believed that Hungary had been the first Member State she had entered. Hungary agreed to take

charge of her. She claimed that Greece, not Hungary, was responsible for her asylum application; but because of Greece’s human rights record the Austrian authorities should examine her case. The Austrian court referred to the Court of Justice the question whether an asylum claimant was entitled to seek a review of the determination of the responsible Member State on the ground that the Chapter III criteria in Dublin II had been misapplied. 15.

The judgment of the Court of Justice has these passages: “57. Thus, article 3(2) of [Dublin II] … and article 15(1)… are designed to maintain the prerogatives of the member states in the exercise of the right to grant asylum, irrespective of the member state responsible for the examination of an application on the basis of the criteria set out in that Regulation. These are optional provisions which grant a wide discretionary power to member states… 60… [T]he only way in which the applicant for asylum can call into question the choice of that criterion [sc. under Article 10(1)] is by pleading systematic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum in that latter member state, which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment…”

16.

It can be seen, then, that there is a consistent line of authority demonstrating that the choice of responsible Member State for the purpose of Dublin II is ascertained and regulated at the inter-State level. This learning supports the view that Dublin II confers no rights on individual asylum-seekers to challenge the decision as to the responsible Member State or to require a particular Member State to examine their asylum application. But that is not the only line of authority which bears on this appeal.

INDIVIDUAL CLAIMS OF RIGHT 17.

At paragraph 28 of her judgment the Deputy Judge noted Mr Ó Ceallaigh’s submission that “this line of authorities cannot survive the decision in K v Bundesasylamt Case C-245/11 [2013] 1 WLR 883”, and indeed this was the first authority referred to by Mr Ó Ceallaigh in argument before us. In that case the Austrian authorities rejected the applicant’s asylum application on the ground that Poland was the responsible Member State. On the applicant’s appeal the Austrian court sought a preliminary ruling on the interpretation of Dublin II Article 15, asking (inter alia): “whether Article 15 of [Dublin II] must be interpreted as meaning that, in circumstances such as those in the main proceedings, in which the daughter-in-law of the asylum seeker is dependent on the asylum seeker’s assistance because that daughter-in-law has a new-born baby and suffers from a serious illness and handicap, a Member State which is not the State

responsible for examining the asylum request according to the criteria laid down in Chapter III of that regulation can automatically become the responsible State on humanitarian grounds. If the answer to that question is in the affirmative, [the Austrian court] wishes to know whether that interpretation remains valid where the Member State which is responsible in accordance with those criteria did not make any request pursuant to the second sentence of Article 15(1) of the regulation.” 18.

The Court of Justice held (paragraph 38) that the scope of Article 15 was not limited to ties between the asylum-seeker and “family members” as defined in Article 2(i) of Dublin II (which I will not set out). The court’s essential conclusions are effectively given at paragraphs 47 and 54: “47. Where the conditions stated in Article 15(2) are satisfied, the Member State which, on the humanitarian grounds referred to in that provision, is obliged to take charge of an asylum seeker becomes the Member State responsible for the examination of the application for asylum. 54. In the light of all the foregoing considerations, the answer to the first question is that, in circumstances such as those in the main proceedings, Article 15(2)… must be interpreted as meaning that a Member State which is not responsible for examining an application for asylum pursuant to the criteria laid down in Chapter III of [Dublin II] becomes so responsible. It is for the Member State which has become the responsible Member State within the meaning of that regulation to assume the obligations which go along with that responsibility. It must inform in that respect the Member State previously responsible. This interpretation of Article 15(2) also applies where the Member State which was responsible pursuant to the criteria laid down in Chapter III… did not make a request in that regard in accordance with the second sentence of Article 15(1) of that regulation.”

19.

Mr Ó Ceallaigh referred to some observations of mine in AA (Afghanistan) [2006] EWCA Civ 1550: “13… I certainly accept in general terms that an asylum claimant cannot challenge (save perhaps on human rights grounds) the allocation of responsibility between States for the determination of his claim where that has been effected by proper application of Dublin I or II. But it by no means follows that where as here there has been a gross breach of the time limit given by Article 11(5) of Dublin I yet the receiving State continues to accept responsibility for the claim, there can be no challenge on Wednesbury grounds to the Secretary of State’s decision to send the claimant back…

14. In the course of his submissions before us Mr McCullough accepted that if in a case such as this the decision to transfer the claimant to the other State were shown to be irrational, then it would be unlawful and open to challenge as such; but he opined that it was difficult (I think he would say impossible) to find an instance where that might be so which did not engage ECHR rights. That may be correct. In any event it is common ground that if the respondent’s transfer to Austria would violate his Convention rights, it would be unlawful and the court could interfere…” 20.

AM (Somalia) [2009] EWCA Civ 114 is an important case from Mr Ó Ceallaigh ’s point of view. The appellant was a Somalian national who came to the UK after having claimed asylum in Italy. He had mental health difficulties and was very reliant on his two brothers and sister-in-law who were in this country. The Italian authorities accepted responsibility for the examination of his asylum claim, and the Secretary of State proposed to remove him to Italy. The appellant appealed to the tribunal, asserting a prospective violation of ECHR Article 8. The Secretary of State issued a statutory certificate that the appellant’s objection to removal to Italy was manifestly unfounded, so that (if the certificate were good) he would have no in-country right of appeal. The appellant sought judicial review of the certificate.

21.

This court entered into the merits of the Article 8 case. However, given that the challenge was to the validity of the certificate, “the question for the court [was] not whether in all the circumstances removal is nevertheless proportionate: it is whether the Home Secretary can properly decide that the contrary argument is bound to fail” (per Sedley LJ at paragraph 20). Sedley LJ continued: “22. The Dublin system has nothing to do with the merits of individual cases: it is designed simply to prevent forumshopping while ensuring that every asylum claim is properly processed. By itself it does not address the problem of removals which may violate Convention rights. That is catered for by the separate obligation of the Home Secretary not to act inconsistently with such rights. 23. Thus the question in the present case is whether an independent adjudication could find substance in the contention that to follow the Dublin procedure in this appellant’s case would be disproportionate. In my judgment it undoubtedly could. … 25… [I]f, as is distinctly possible…, he is given asylum in Italy, all that will lie ahead there is a life of isolation and probable relapse. In other words, this is a case in which, on appeal, an immigration judge might well hold that the lawful purpose of the Dublin Regulation was not sufficient to justify the damaging effect on this appellant of disrupting what is now

his private and family life by compelling him to present his asylum claim in Italy rather than here.” Jacob and Lloyd LJ agreed, and the certificate was quashed. 22.

The last case I need cite is a recent decision of the Upper Tribunal in judicial review proceedings, ZAT & Ors v Secretary of State [2016] UKUT 00061 (The President, McCloskey J, and Mr Ockelton, Vice President). There were seven applicants, all Syrian nationals. The first four, having fled Syria and got as far as Calais, desired to join the last three, who had been granted asylum in this country. All seven were related, had previously enjoyed family life in Syria, and sought to be reunited in the UK.

23.

At paragraph 31 of the determination McCloskey J observed that it was “common ground among the parties… that all of the applicants are entitled, in principle, to invoke Article 8…; and the central question to be determined is whether the Secretary of State’s refusal is a proportionate means of achieving [the] legitimate aim [of effective and orderly immigration control]”. It is at once to be noted, however, that the case proceeded under Dublin III, which entered into force as the successor to Dublin II on 1 January 2014. Article 27 of Dublin III confers an express right of “an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal”. In setting out the tribunal’s conclusions at paragraphs 49 ff McCloskey J addressed in terms the relationship between the two regimes of the Dublin Regulation and of the ECHR. Though ZAT was concerned with Dublin III the discussion is, with respect, of some value for present purposes: “50. It is not suggested, correctly in our view, that either of these regimes has any inherent value or status giving one precedence over the other. They are not in competition with each other. However, as this litigation demonstrates, they may sometimes tug in different directions. Where this occurs full cohesion, or harmonisation, is unlikely to be achievable and some accommodation, or compromise, must be found. 51… [T]he question to be determined in [a] case of this kind is whether a disproportionate interference with the Article 8 rights of a person claiming to be a victim within the compass of s.7 of the Human Rights Act 1998 is demonstrated. 52. What is the correct approach to the Dublin Regulation in a case of this kind? We consider that the Dublin Regulation, with its rationale and overarching aims and principles, has the status of a material consideration of undeniable potency in the proportionality balancing exercise. It follows that vindication of an Article 8 human rights challenge will require a strong and persuasive case on its merits. Judges will not lightly find that, in a given context, Article 8 operates in a manner which permits circumvention of the Dublin Regulation procedures and mechanisms, whether in whole or in part. We consider that such cases are likely to be rare.”

McCloskey J’s observation that the Dublin and ECHR regimes “may sometimes tug in different directions” is in line with my reference in paragraph 9 to the need to find an accommodation between two competing legal imperatives. CONCLUSIONS ON THE ISSUE OF PRINCIPLE 24.

At paragraph 9 I described the issue of principle in the case thus: ECHR Article 3 aside, what if any is the scope for challenge to the removal of the affected individual to another Member State following a decision under Dublin II to the effect that the other State is responsible for the examination of his asylum claim?

25.

Stadlen J was surely right to state at paragraph 67 of KA that there is “a fundamental inconsistency between the proposition that the Regulation is designed to prevent asylum shopping and the proposition that at the same time the Regulation was intended to confer rights on asylum seekers to require a particular Member State to examine their asylum application”. However the difficulty in this case, and the explanation of the apparent tension between the two lines of authority I have discussed (on the inter-State regime and on individual claims of right), arises from a non sequitur which needs to be exposed: the proposition that Dublin II confers no right on the affected individual to challenge a decision as to which Member State is responsible for the determination of his asylum claim does not entail the further proposition that the decision to remove him to the responsible State may not be challenged on grounds other than the terms of Dublin II.

26.

The cases on the inter-State regime vouch the first proposition, not the second. Thus in G at paragraph 25: “[t]he effect of Article 15 is not to confer a freestanding substantive right on individual applicants”. In KA at paragraph 166: “alleged breaches of those provisions [sc. of Dublin II] are not actionable at the suit of an individual”. In Abdullahi v Bundesasylamt at paragraph 60: “T]he only way in which the applicant for asylum can call into question the choice of that criterion [sc. under Article 10(1)] is by pleading systematic deficiencies in the asylum procedure…” These formulations deny the conferment of individual rights by Dublin II. I have considered whether K v Bundesasylamt is to contrary effect, and allows for a challenge by the affected individual to the Dublin II decision as to the responsible State, on the footing that the proceedings giving rise to the preliminary ruling in that case were by way of an appeal by the applicant against the Austrian authorities’ refusal of her asylum application on the ground that Poland was the responsible Member State; and the Court of Justice did not conclude that the questions asked of them did not arise because the issue raised was not justiciable.

27.

But this, I think, would be to misread K v Bundesasylamt. The fact that the asylum seeker’s daughter-in-law was dependent on the asylum seeker’s assistance was a given – a premise – of the first question asked of the court (which I have cited at paragraph 17), not an issue which fell for decision. The Court of Justice then had to decide whether the referring Member State (Austria) “can automatically become the responsible State on humanitarian grounds”. The issue was as to the interpretation of Article 15(2). The court’s judgment opens no door to the possibility of a merits challenge to the Dublin II determination. In the course of argument my Lord Davis LJ posed the question, what the position would be if the Dublin II decision maker reached a wholly unsustainable conclusion that Article 15(2) had no application when on the facts it plainly did. This is not, of course, the K v Bundesasylamt case; but

were it to arise I think the court would consider it through the prism of ECHR Article 8, to whose viability in the Dublin II context I now turn. 28.

The cases on the inter-State regime are in my judgment perfectly consistent with the enjoyment of a right in the hands of the affected individual to challenge his removal to the responsible State on grounds having nothing to do with Dublin II – notably Article 8; and the cases on individual claims show that in principle such a challenge may be brought.

29.

The distinction between a challenge to the Dublin II decision itself, which is not justiciable, and an Article 8 claim directed to the affected person’s removal, which is, has not been altogether lost in the cases, though it is not always spelt out. It is uncovered in Sedley LJ’s reasoning at paragraph 22 of AM (Somalia), which I have cited above. In G, to which I said I would return, the question for this court concerned the appellant’s claim that her removal to Italy would violate her rights guaranteed by Article 8, though I have cited the case for Maurice Kay LJ’s observation at paragraph 25 that “[t]he effect of Article 15 is not to confer a freestanding substantive right on individual applicants. Rather, it is to regulate the relationship between two or more Member States”. However the learned Lord Justice so stated in rejecting the submission for the appellant recorded in the previous paragraph, “that the certificate that the claim by reference to Article 8 of the ECHR is clearly unfounded is defective, because there is an interference with G’s family life which is not ‘in accordance with the law’ because is flies in the face of Article 15 of the Regulation.” At paragraph 27 he concluded that “G is wholly unable to point to any contravention of Article 15”; but he proceeded at once to consider (paragraphs 28 ff) issues appertaining to Article 8 – legitimate aim and proportionality. Thus in G the distinction between a right purportedly arising under Dublin II and a right arising otherwise is implicit, though not, I think, articulated in terms. The distinction is also apparent in the reasoning of McCloskey J in ZAT: see in particular paragraph 50 of the determination, which I have cited above at paragraph 23.

30.

This duality – a right under the ECHR to challenge a removal decision alongside the absence of any right to challenge a Dublin II determination as to the responsible State – is wholly unsurprising. It cannot conceivably have been the intention of the European legislature in enacting Dublin II, or of the Court of Justice in passing judgment upon it, to prohibit the autonomous application of ECHR Article 8 to decisions to remove persons from one Member State to another. If it were, we should have to consider whether such a prohibition would be repugnant to the Human Rights Act 1998 and therefore of no legal effect in this jurisdiction. I am inclined to think that would be the position, though of course a final decision would require the benefit of argument. It would be no answer to claim, by analogy with Factortame (No 1) [1990] 2 AC 85 (per Lord Bridge at 140), that the Act of 1998 must give way to the European enactment, since the Human Rights Act establishes basic rights which the European Communities Act 1972 does not authorise the European institutions to abrogate.

31.

The existence of the Dublin II regime, however, has in my judgment a profound impact on the application of Article 8 to a case where the claimant is to be removed to another Member State following a decision that the other State is responsible for the determination of his asylum claim. McCloskey J described the Regulation as “a material consideration of undeniable potency in the proportionality balancing

exercise” in such a situation (ZAT paragraph 52). He continued (I repeat the passage for convenience): “Judges will not lightly find that, in a given context, Article 8 operates in a manner which permits circumvention of the Dublin Regulation procedures and mechanisms, whether in whole or in part. We consider that such cases are likely to be rare.” I would express the force of the Regulation in stronger terms. It is a legal instrument of major importance for the distribution of responsibility among the Member States for the administration of asylum claims. If it were seen as establishing little more than a presumption as to which State should deal with which claim, its purpose would be critically undermined. In my judgment an especially compelling case under Article 8 would have to be demonstrated to deny removal of the affected person following a Dublin II decision. 32.

I should add this. As I have said, Dublin II has now been succeeded by Dublin III which includes the right of appeal or review given by Article 27. In a helpful note submitted after the hearing counsel has provided some information concerning outstanding Dublin II cases. There are some 231 of these, of which however the “vast majority” raise issues of “systemic deficiency” (see Abdullahi v Bundesasylamt at paragraph 60). There are apparently two outstanding cases awaiting judicial determination which raise issues of the decision’s justiciability. So the present case is not quite of historic interest only.

CONCLUSIONS ON THE MERITS 33.

Given (if my Lords agree) that it is in principle open to the appellants to assert Article 8, we are required to consider the merits of their claim. Because the Secretary of State has certified the human rights claims as clearly unfounded, the question on this part of the case is (as it was in AM (Somalia)) whether the Secretary of State could properly decide that the Article 8 claim was bound to fail; or, to put it another way, whether a reasonable immigration judge might uphold the claim. On the approach to Article 8 which I have outlined, an especially compelling case would have to be established.

34.

In my judgment there is no reasonable possibility of such an outcome. The Article 8 case is unsustainable. I have already cited the passage from the decision letter addressed to the second appellant, set out by the Deputy Judge at paragraph 43 of her judgment: “Your client [has] not been financially, physically, or emotionally dependant on her brother in law and sister in law as they had clearly been apart for a considerable time. There is not any evidence of anything beyond what is usually expected of adult relatives. Your client can maintain contact with her brother in law and sister in law by way of telephone calls and emails. Your client’s brother in law and sister in law can also visit your client in France as they are British Citizens.”

I do not consider that a reasonable immigration judge could depart from this view to any substantial extent. The appellants’ solicitors’ statement in their letter of 28 February 2013 that “[o]ur clients have received considerable comfort from their family members in the United Kingdom” does not, with respect, advance the case by any significant distance. Nor, in my view, does the witness statement of the first appellant’s elder brother. Paragraphs 8 and 9 certainly describe frequent family contact and assert the appellants’ need of emotional support and reassurance. But in my judgment there is nothing which could justify a refusal on Article 8 grounds to give effect to the Dublin II determination that France should be responsible for their asylum claims. 35.

I would dismiss the appeal.

Lord Justice Davis 36.

I agree.

Sir Timothy Lloyd 37.

I also agree.

Neutral Citation Number: [2016] EWCA Civ 175 Royal Courts of Justice Strand, London, WC2A 2LL Date: 22/03/2016 IN THE COURT OF APPEAL (CIVIL DIVISION) Before : LORD JUSTICE DAVIS LORD JUSTICE LLOYD JONES and LORD JUSTICE UNDERHILL Case No: C5/2013/3360 ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) Judge Deborah Taylor and Deputy Judge David Taylor AA/04774/2013 Between : MA (BANGLADESH) - and SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant Respondent

Case No: C4/2014/2292

ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN’S BENCH DIVISION, ADMINISTRATIVE COURT Andrews J. CO/2557/2014 Between : AM (BANGLADESH) - and UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBERS) - and SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant Respondent

Interested Party

Zane Malik and Shahadoth Karim (instructed by SEB, Solicitors and Malik Law Chambers, Solicitors) for the Appellants Paul Greatorex (instructed by the Government Legal Service) for the Secretary of State for the Home Department The Upper Tribunal did not appear and was not represented. Hearing dates: 21 January 2016

Further submissions received: 1 February 2016


Judgment

Judgment Approved by the court for handing down.

LORD JUSTICE LLOYD JONES : 1.

There are before the court two appeals which raise a common issue concerning the principles established in Tanveer Ahmed v Secretary of State for the Home Department [2002] INLR 345 in relation to the authenticity and reliability of documents in asylum cases. MA appeals, with permission of Maurice Kay LJ, from a decision of the Upper Tribunal promulgated on 4 September 2014 dismissing his appeal. AM appeals, with permission of Briggs LJ, from the decision of the Administrative Court made on 30 June 2014 to refuse permission to apply for judicial review. In addition both appellants seek permission to rely on a further ground of appeal to the effect that the decisions of the Upper Tribunal and the Administrative Court respectively, display a lack of anxious scrutiny.

The proceedings relating to MA 2.

MA is a national of Bangladesh. He arrived in the United Kingdom on 12 July 2001 concealed in the back of a lorry. In 2009 he made an application for leave to remain based on Article 8 ECHR which was rejected without a right of appeal. In December 2012 he was discovered working illegally. He was arrested and detained. It was only after this that he made the asylum claim which gives rise to his appeal.

3.

The basis of his claim for asylum is his alleged fear of persecution by the Bangladeshi State due to his political opinions as a member of the Bangladesh National Party (BNP). He claims that in 1997 he was kidnapped by members of the Awami League, an opposing party, by whom he was tortured. He further claims that he was accused by Abu Misar, the leader of the Awani League, of the murder of an Awami League activist, Bilayat Hussain, at a rally on 10 February 1998. He claims that he was found guilty of this murder in his absence and was sentenced to 12 years imprisonment. He claims that he went into hiding on the day after the murder and remained in hiding in the Sylhet District for three years staying in various villages and at the homes of relatives before he went to Dhaka in March 2001 where he stayed for nearly three months before travelling to the United Kingdom.

4.

The Secretary of State refused his application for asylum setting out her reasons in a letter dated 2 May 2013. MA appealed to the First-tier Tribunal. In a decision promulgated on 27 June 2013 the First-tier Tribunal (Judge Wellesley-Cole) dismissed his appeal. MA was “comprehensively disbelieved” and the judge found his testimony “mendacious”. The judge referred in particular to the following unsatisfactory features of his evidence. (1) In 2010 MA had attended at the Bangladesh High Commission in London in order to obtain a new passport. He was unable to provide a satisfactory explanation as to why he would attend at the High Commission if he feared imprisonment in Bangladesh. (2) The judge drew attention to an attempt by MA to interfere with the oral testimony of a witness called on his behalf. (3) The judge regarded his alleged fear of return to Bangladesh because of a 12 year prison sentence for murder as implausible having regard to the timing and the circumstances of his claim for asylum.

Judgment Approved by the court for handing down.

(4) There were internal and external inconsistencies in relation to the documents and the events he described. (5) The fact that he remained in Bangladesh until 2001 indicated that he did not fear his kidnappers. (6) The judge rejected his claim that he had been convicted of murdering Bilayat Hussain. His oral testimony on this was contradictory. On the basis of Tanveer Ahmed and against a background of obviously conflicting evidence, the judge placed no weight on what was claimed to be an English translation of a judgment in those proceedings. (7) The Judge considered that if he was wanted by the police before he left Bangladesh it would have been virtually impossible for him to leave the country on his own passport. 5.

In rejecting MA’s appeal the First-tier Tribunal refused to rely on certain documents said to be supportive of MA’s evidence about his conviction including, in particular, what purported to be a translation of a judgment given by the Additional District and Session Judge of the Third Court in Sylhet on 2 May 2001, on the grounds of his inconsistent accounts as to its provenance and the background of conflicting evidence. In particular the judge referred to the contradictory explanations tendered by MA as to the language of the document. So far as concerned the other documents on which MA sought to rely Judge Wellesley-Cole placed no weight on these documents because of the discrepant nature of MA’s evidence. She observed: “I have already called into question his credibility and therefore do not rely on any of the documents itemised above as they could have come from any source. This is compounded by the fact that he remained in the country not only after his 1997 alleged kidnapping which I have not accepted. (sic) Furthermore I question whether if he had been convicted of murder he would take the risk of living in any part of Bangladesh not leaving the country until 2001 if he was genuinely being sought. This does not bear scrutiny.” (at [18])

6.

On appeal the Upper Tribunal held that there had been a limited error of law consisting of a failure by the First-tier Tribunal, after having correctly found that MA did not meet the provisions of Appendix FM, to go on to consider his Article 8 claim more generally. The Upper Tribunal formally set aside the decision of the First-tier Tribunal and remade the decision. It went on to conclude that under the second stage of the analysis there was nothing to consider because the evidence of family and private life was scant in the extreme. The other grounds of appeal were dismissed.

7.

An application for permission to appeal against that decision was refused by the Upper Tribunal on the ground that it was out of time. The Upper Tribunal refused to extend time and said that it would have refused permission in any event.

Judgment Approved by the court for handing down.

8.

MA then applied to the Court of Appeal for permission to appeal. Once again the application was out of time. On 5 February 2014 permission to appeal was refused on the papers by Sir Stanley Burnton who observed: “The First-tier Tribunal in its thorough determination satisfied the requirement of anxious scrutiny. It gave overwhelming reasons for rejecting the credibility of the applicant. On the basis of the matters on which it relied, it was and is impossible to place any credence on the document produced by the applicant. Furthermore, unlike Singh v Belgium, this was not a case in which the documents could be reliably, easily and swiftly checked…”

9.

On 21 May 2014 Maurice Kay LJ gave permission to appeal. In doing so he noted that, applying the Tanveer Ahmed principles, the First-tier Tribunal and the Upper Tribunal were plainly entitled to come to the view that they did, having formed a negative impression of MA’s credibility. However the question was raised as to whether Tanveer Ahmed was still good law. Maurice Kay LJ considered the point of sufficient importance and topicality to require consideration by the full court.

Proceedings in relation to AM 10.

AM is also a national of Bangladesh. He entered the United Kingdom on 29 September 2013. On 19 November 2013 he claimed asylum and humanitarian protection. He sought asylum on the basis of his fear that if returned to Bangladesh he would face persecution due to his political opinions. His claim for humanitarian protection was based upon his fear that if returned he would face a real risk of the death penalty or unlawful killing, torture or inhuman or degrading treatment or punishment.

11.

AM claimed that he had been an active member of the Jamaat e Islami Party since 1995. He claimed that after coming to power in January 2009 the government began to target the leaders of his party. He claimed that the judiciary was virtually under the complete control of the government and that it had passed death sentences on senior leaders of his party. AM claimed that on 20 March 2013 he had organised a protest, that the police had shot at the protestors and one man had been killed. AM claimed that one of his opponents from the Awami League had seen him and threatened to kill him. A charge had been brought against him as the senior organiser of the march. Police had raided his house but they had failed to capture him. He had moved from place to place in order to avoid the authorities. People had gone to his house on many occasions to capture him but he had escaped every time. He claimed that on 1 April 2013 he and his legal representative went to the High Court where he was granted temporary bail for 42 days. He did not surrender to that bail because he was advised that most judges in the High Court were politically biased and he would not have been granted further bail. Thereafter he was in hiding from the police and moving from place to place. He decided to come to the United Kingdom. He successfully applied for a visit visa at Sylhet. He booked tickets for him and his family to travel to the United Kingdom. They left together on 29 September 2013 in the early morning. He claimed this was a safe time to leave the country and they were not noticed on their way to the airport.

Judgment Approved by the court for handing down.

12.

AM had not claimed asylum on arrival in the United Kingdom. He said this was because he had no legal knowledge and because he feared the authorities might immediately return the family to Bangladesh.

13.

His claims for asylum and humanitarian protection were rejected by the Secretary of State in a letter dated 31 January 2014.

14.

The First-tier Tribunal dismissed his appeal in a determination promulgated on 17 March 2014. Judge of the First-tier Tribunal Fisher did not find AM a credible witness. In this regard he drew attention in particular to the following matters: (1) AM gave inconsistent and implausible evidence as to when he had started organising the March 2013 demonstration. (2) The FIR which he produced stated that the leader of the demonstration on 20 March 2013 was someone other than AM. Having initially accepted that the police would not have been aware that he was the leader, AM subsequently tried to deny that he had given this answer and to distance himself from such a damaging admission. (3) The judge found discrepancies as to whether he had returned to his home following the demonstration. His claim that he had never returned home after the demonstration was inconsistent with his witness statement. He had then tried to correct this “little mistake”. The judge was unable to accept that he could be mistaken as to whether he ever returned home or not. (4) The judge found AM’s evidence vague. As Vice President of the Party he ought to have been able to give more detailed answers. (5) In the light of his findings as to AM’s credibility, the judge was not prepared to accept his bare assertion that a list he produced included the names of individuals whom he had sought to enlist. (6) His failure to claim asylum on arrival in the United Kingdom was not the conduct of a person claiming to have fled persecution. His claim that he did not know about asylum was plainly incorrect. (7) There was inconsistency between AM and the witnesses called on his behalf as to when they had last met. (8) The judge found it incredible that AM had not ascertained from his solicitor and his friend how they had obtained the FIR documents. He had given inconsistent accounts as to how it had been obtained. (9) The judge found incredible his account that, notwithstanding the fact that on his case he was a wanted man, spending time in hiding, he was able to visit the High Court to obtain temporary bail. (10)The judge found it incredible that he would be sufficiently comfortable in terms of his liberty to obtain visit visas for himself and his family, to book air tickets, to travel to the airport and leave on their own passports without apparently attracting any interest whatsoever.

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(11)There was insufficient reliable evidence to show that he had been a recent member of Jamat e Islami and the judge rejected his claim he was a Vice President, that he had arranged the demonstration on 20 March 2013, that he was wanted as a result or that he would be at risk of persecution on his return to Bangladesh. 15.

In the course of his judgment the judge referred to the documentary evidence, in particular in the form of a newspaper article, relied on by AM. He referred to a significant prevalence of fraudulent documents in Bangladesh and continued “The appellant’s account was riddled with inconsistency, and aspects of it were lacking in general credibility. I am not satisfied that the documents produced by him are capable of carrying weight as reliable. Even if a demonstration did take place on 20 March 2013, the Daily Star report… indicates that it took place in Sylhet. There was no reliable evidence before me to show that the appellant’s home area of Biswanath is part of Sylhet. I find it more likely that the appellant had taken a known event in the form of a demonstration and then fabricated account around it in the hope that it would be found credible.” (at [36])

16.

AM applied for permission to appeal. Permission was refused by the First-tier Tribunal on 15 April 2014 and by the Upper Tribunal on 15 May 2014. The draft grounds complained of failure to make findings in respect of crucial evidence including the newspaper articles. However, no reference was made to Tanveer Ahmed or to Singh v Belgium.

17.

On 3 June 2014 AM issued an application for permission to apply for judicial review of the decision refusing permission to appeal against the determination of the First-tier Tribunal. Permission was refused by Andrews J. on 30 June 2014.

18.

AM then applied to the Court of Appeal for permission to appeal against the order of Andrews J. In the skeleton argument in support of the application for permission it was contended that following MJ (Singh v Belgium: Tanveer Ahmed unaffected) Afghanistan [2013] UKUT 253 (IAC) (1 May 2013) it is arguable that there was a duty on the interested party to verify the newspaper report. It was submitted that the First-tier judge was obliged to take into account this evidence and make findings in respect of it and where there appeared an inconsistent oral narrative but objective evidence supported the claim, the benefit of doubt ought to be given to the claimant.

19.

On the 29 October 2014 Briggs LJ granted permission to appeal on this ground only. He observed: “It is just arguable that this appeal raises the same issue about the requirement to verify documents as has arisen in MA (Bangladesh) v SSHD… namely whether it was an error of law for the FtT to have dismissed as lacking in weight unverified documents, in particular a newspaper report, suggesting that the applicant had been charged as the result of his participation in the political demonstration as he alleged.”

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Briggs LJ directed the case be linked with the appeal in MA “to assist the Court of Appeal to give guidance on the tension (if any) between Tanveer Ahmed and Singh v Belgium by reference to more than one fact situation”. The hearing on 24 June 2015. 20.

The appeals of MA and AM came on for hearing together on 24 June 2015 before Kitchin and McCombe LJJ and Kenneth Parker J. The appellants sought to develop arguments to some of which the Secretary of State objected. The court concluded that the appellants needed formally to amend their grounds of appeal in order to advance the points made in their skeleton argument. Accordingly the hearing was adjourned and case management directions were given including a direction to the appellants to file amended grounds of appeal. Amended grounds of appeal were filed on 30 June 2015.

The law. 21.

In Tanveer Ahmed v Secretary of State for the Home Department [2002] UK IAT 00439; [2002] INLR 345 Collins J. (President) delivering the judgment of the Immigration Appeal Tribunal, laid down the following approach in the case of contested documents. The Tribunal noted from experience and country information that there are countries where it is easy and often relatively inexpensive to obtain “forged” documents. Some are false in that they are not made by whoever purports to be the author and the information they contain is wholly or partially untrue. Some are “genuine” to the extent that they emanate from a proper source, in the proper form, on the proper paper, with the proper seals, but the information they contain is wholly or partially untrue. Courts and Tribunals need to differentiate between form and content i.e. whether a document is properly issued by the purported author and whether the contents are true. It is necessary to shake off any preconception that official looking documents are genuine, based on experience of documents in the United Kingdom, and to approach them with an open mind.

22.

Referring to Rule 39(2) of the Immigration and Asylum (Procedure) Rules 2000 the Tribunal stated that it is for the individual claimant to show that a document is reliable in the same way as any other piece of evidence which he puts forward and on which he seeks to rely. There is no legal justification for an argument that if the Secretary of State alleges that a document relied on by an individual claimant is a forgery and the Secretary of State fails to establish this on the balance of probabilities or even to the higher criminal standard, then the individual claimant has established the validity and truth of the document and its contents. Such an argument is manifestly incorrect, given that whether the document is a forgery is not the question at issue. The only question is whether the document is one upon which reliance should properly be placed. Collins J. continued “35. In almost all cases it would be an error to concentrate on whether a document is a forgery. In most cases where forgery is alleged it will be of no great importance whether this is or is not made out to the required higher civil standard. In all cases where there is the material document it should be assessed in the same way as any other piece of evidence. A document should not be viewed in isolation. The decision-maker should

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look at the evidence as a whole or in the round (which is the same thing). 36. There is no obligation on the Home Office to make detailed enquiries about documents produced by individual claimants. Doubtless there are costs and logistical difficulties in the light of the number of documents submitted by many asylum claimants. In the absence of a particular reason on the facts of an individual case, a decision by the Home Office not to make enquiries, produce in-country evidence relating to a particular document or scientific evidence should not give rise to any presumption in favour of an individual claimant or against the Home Office.” 23.

In conclusion he set out the following principles: “(1) In asylum and human rights cases it is for an individual claimant to show the document on which he seeks to reply can be relied on. (2) The decision-maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round. (3) Only very rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it. The allegation should not be made without such evidence. Failure to establish the allegation on the basis of abilities to the higher civil standard does not show that a document is reliable. The decision-maker still needs to apply principles (1) and (2).” (at [38]) These principles have been consistently applied since 2002 by courts and tribunals in a host of decisions.

24.

The question whether a national authority is under an obligation to take steps to verify documents relied on by asylum seekers arose for consideration by the European Court of Human Rights in Singh v Belgium (33210/11) 2 October 2012. The petitioners alleged that their deportation from Belgium to Russia would entail a risk of repatriation to Afghanistan in breach of Article 3 ECHR. The petitioners’ claims for refugee status were refused because they had not proved their Afghan nationality. They appealed and sought to rely on new documents, namely e-mails between their solicitor and a representative of the Belgium Committee for the Support of Refugees, the latter enclosing e-mails from an official of the UNHCR in New Delhi which had as attachments attestations which stated that the petitioners had been recorded as refugees under the UNHCR mandate on their departure from Afghanistan. The emails also stated that the second petitioner had asked for naturalisation in India and that she had a valid Afghan passport issued by the Afghanistan Embassy in New Delhi. The Aliens Disputes Board (“CCE”) rejected the appeals. It considered that the petitioners had failed to prove their Afghan nationality and that they were in reality under the protection of the UNCHR. It considered that UNHCR documents

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were easy to falsify and because the petitioners failed to provide originals they were of “no convincing value”. 25.

The Strasbourg Court observed that the original decision-making body (CGRA) had not carried out any investigation as to authentication of the identity documents presented by the petitioners. It did not seem to the Court that the CCE had remedied this failing. The petitioners had presented to the CCE documents which raised doubts concerning the findings of the CGRA. In the Court’s view these documents were “not insignificant” because they included attestation that petitioners had been recorded as refugees under the UNHCR mandate and confirmed the dates given by the petitioners to support their claimed journey. The Court continued: “103. Thus, the Court insists on the fact that, given the importance it gives to Article 3 and the irreversible nature of the harm likely to be caused in case of the realisation of the risk of ill treatment, it is the responsibility of the national authorities to show that they are as rigorous as possible and carry out a careful investigation of the grounds of appeal drawn from Article 3 without which the appeals lose their efficiency…Such an investigation must remove all doubt, legitimate as it may be, as to the invalidity of a request for protection regardless of the competencies of the authority responsible of the control. 104. Thus, the steps taken in this case which consisted of the removal of documents which were at the heart of the request for protection not only by the CGRA but also CCE, by judging them not to be convincing, without previously checking their authenticity, when it would have been easy to do this at the UNHCR, these steps cannot be viewed as a careful and rigorous investigation expected of national authorities within the meaning of Article 13 of the Convention and does not give an effective protection against any treatment contrary to Article 3 of the Convention. 105. It results from what precedes that the internal authorities have not investigated the validity of the grounds of appeal, in accordance with the requirements of Article 13, that the petitioners were arguing were defendable under Article 3. Thus, there was a breach of Article 13 combined with Article 3 of the Convention…”

26.

In MJ (Singh v. Belgium: Tanveer Ahmed unaffected) Afghanistan [2013] UKUT 00253 (IAC) the Upper Tribunal (Immigration and Asylum Chamber) considered Singh and Belgium and expressed its conclusion as follows: “50. [Tanveer Ahmed] is a starred decision of the IAT and we are bound by it. It is relevant however to consider it in the context of what was said in Singh v Belgium. Upon consideration we do not think that what was said in Singh is inconsistent with the quotation we have set out above from

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paragraph 35 of Tanveer Ahmed. Tanveer Ahmed does not entirely preclude the existence of an obligation on the Home Office to make enquiries. It envisages, as can be seen, the existence of particular cases where it may be appropriate for enquiries to be made. Clearly on its facts Singh can properly be regarded as such a particular case. The documentation in that case was clearly of a nature where verification would be easy, and the documentation came from an unimpeachable source. We do not think that Ms Laughton has entirely correctly characterised what was said in Singh in suggesting that in any case where evidence was verifiable there was an obligation on the decision maker to seek to verify. What is said at paragraph 104 is rather in terms of a case where documents are at the heart of the request for protection where it would have been easy to check their authenticity as in that case with the UNHCR. That is a very long way indeed from the difficulties that would have been involved in this case in attempted verification by the Home Office of documents emanating from Hizb-i-Islami. We do not think that what is said in Singh v Belgium in any sense justifies or requires any departure from the guidance in Tanveer Ahmed which is binding on us and which we consider to remain entirely sound.”

27.

In PJ (Sri Lanka) v Secretary of State for the Home Department [2015] 1WLR 1322 this Court (Arden, McFarlane, Fulford LJJ) considered the compatibility of Tanveer Ahmed with Singh v Belgium. In his judgment, with which the other members of the court concurred, Fulford LJ provided the following guidance: “29. In my judgment, there is no basis in domestic or European Court of Human Rights jurisprudence for the general approach that Mr Martin submitted ought to be adopted whenever local lawyers obtain relevant documents from a domestic court, and thereafter transmit them directly to lawyers in the UK. The involvement of lawyers does not create the rebuttable presumption that the documents they produce in this situation are reliable. Instead, the jurisprudence referred to above does no more than indicate that the circumstances of particular cases may exceptionally necessitate an element of investigation by the national authorities, in order to provide effective protection against mistreatment under article 3 of the Convention. It is important to stress, however, that this step will frequently not be feasible or it may be unjustified or disproportionate. In Ahmed’s case [2002] Imm AR 318 the court highlighted the cost and logistical difficulties that may be involved, for instance because of the number of documents submitted by some asylum claimants. The inquiries may put the applicant or his family at risk, they may be impossible to undertake because of the prevailing local situation or they may place the UK authorities in the difficult position of making covert local inquiries without the permission of the relevant authorities.

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Furthermore, given the uncertainties that frequently remain following attempts to establish the reliability of documents, if the outcome of any inquiry is likely to be inconclusive this is a highly relevant factor. As the court in Ahmed’s case observed, documents should not be viewed in isolation and the evidence needs to be considered in its entirety. 30. Therefore, simply because a relevant document is potentially capable of being verified does not mean that the national authorities have an obligation to take this step. Instead, it may be necessary to make an inquiry in order to verify the authenticity and reliability of a document—depending always on the particular facts of the case—when it is at the centre of the request for protection, and when a simple process of inquiry will conclusively resolve its authenticity and reliability: see Singh v Belgium given 2 October 2012, paras 101–105. I do not consider that there is any material difference in approach between the decisions in Ahmed’s case and Singh v Belgium , in that in the latter case the Strasbourg court simply addressed one of the exceptional situations when national authorities should undertake a process of verification. 31. In my view, the consequence of a decision that the national authorities are in breach of their obligations to undertake a proper process of verification is that the Secretary of State is unable thereafter to mount an argument challenging the authenticity of the relevant documents unless and until the breach is rectified by a proper inquiry. It follows that if a decision of the Secretary of State is overturned on appeal on this basis, absent a suitable investigation it will not be open to her to suggest that the document or documents are forged or otherwise are not authentic. 32. Finally, in this context it is to be emphasised that the courts are not required to order the Secretary of State to investigate particular areas of evidence or otherwise to direct her inquiries. Instead, on an appeal from a decision of the Secretary of State it is for the court to decide whether there was an obligation on her to undertake particular inquiries, and if the court concludes this requirement existed, it will resolve whether the Secretary of State sustainably discharged her obligation: see NA v Secretary of State for the Home Department [2014] UKUT 205 (IAC). If court finds there was such an obligation and that it was not discharged, it must assess the consequences for the case.” Ground 1: The approach of the First-tier Tribunal in each case to the issue of the authenticity and reliability of documents was unduly restrictive and inconsistent with Singh v. Belgium as applied in PJ (Sri Lanka).

Judgment Approved by the court for handing down.

28.

In PJ (Sri Lanka) this court considered whether the approach to verification of documents laid down in Tanveer Ahmed was compatible with the decision of the Strasbourg court in Singh v. Belgium and decided that there is no material difference in approach between the two decisions. PJ (Sri Lanka) is binding on this court and accordingly Mr. Malik, while reserving his position should either of these appeals go further, accepted that it is not open to him to submit before this court that PJ (Sri Lanka) fails to give effect to Singh. The argument before us has, therefore, proceeded on the basis of PJ (Sri Lanka), with Mr. Malik submitting that the approach of the First-tier Tribunal in each case was unduly restrictive and inconsistent with Singh v. Belgium as applied in PJ (Sri Lanka).

29.

The statement in PJ (Sri Lanka) (at [29]) that “the circumstances of particular cases may exceptionally necessitate an element of investigation” does not, to my mind, lay down a legal requirement that a case must be “exceptional” before such a duty can arise. Rather, I take Fulford LJ to be describing the situation in which such a duty will arise only exceptionally. In the great majority of cases no such duty will arise.

30.

PJ (Sri Lanka) permits an approach which is sequential in nature. In determining whether the circumstances of a particular case may necessitate an investigation, national authorities may first consider whether a disputed document is at the centre of the request for protection before proceeding to consider whether a simple process of inquiry will conclusively resolve its authenticity and reliability. If these conditions are satisfied it may be necessary for a national authority to make an enquiry to verify a document. It does not necessarily follow, however, that such a duty will arise; the judgment in PJ (Sri Lanka) makes clear that the evidence, including the documentary evidence, must be considered in its entirety. If the court or tribunal concludes that there was such a duty, it will proceed to consider whether it has been discharged and, if not, it must assess the consequences for the case.

MA 31.

MA complains of the failure of the Secretary of State to take any steps to verify the following documents which, it was eventually established at the hearing before us, were all before the Secretary of State and the First-Tier Tribunal. (1)

A document in English which purports to be a translation of a judgment or order given by the Additional District and Session Judge of the 3rd Court in Sylhet on 2 May 2001 sentencing MA to 12 years rigorous imprisonment with a fine of TK8000, with a further term of 9 months rigorous imprisonment in default of payment. (MA1)

(2)

A letter dated 12 October 2002 from Mr. M.A. Hussain, a lawyer practising in Bangladesh. (MA 2)

(3)

A letter dated 28 October 2002 from Mr. M.A. Hussain. (MA3)

(4)

A letter dated 15 December 2012 from Mr. M.A. Haque, President of the Bangladesh Nationalist Party, Sylhet District Bar. (MA4)

(5)

A legal notice dated 18 December 2013 from Mr. Ziaul Haque, a lawyer practising in Bangladesh. (MA5)

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(6)

Newspaper reports from the Daily Uttor Purbo and the Daily Sylheter Dak. (MA6)

In addition there was before the First-tier Tribunal a further document which was not before the Secretary of State: (7)

A document in Bengali with an English translation which purports to be a letter dated 22 May 2013 from the Bangladesh Ministry of Home Affairs. (MA7) The letter refers to a report of the Superintendent of Police, Sylhet and the order of the 3rd Court in Sylhet and confirms that MA and others were convicted and sentenced and that MA is a fugitive and an arrest warrant has been issued for him. The English translation bears a seal, a stamp and a signature stating that it has been attested by Mr. Mohammed Abdul Muqtadir an Advocate and Notary Public in Bangladesh and bears the date 22 May 2013. This document and the translation post-date the Secretary of State’s decision which was challenged before the First-tier Tribunal. No witness statement from Mr. Muqtadir was produced.

32.

At the hearing before us Mr. Malik’s submissions concentrated on MA 1 and MA7 as he accepted that if MA’s claim failed on the basis of these documents it could not succeed.

33.

On its face, MA1 is a judgment in the criminal proceedings against MA in respect of the murder of Balayet Hussain. It sets out the judge’s reasons for his decision and records his verdict that MA is guilty of the murder and the sentence. MA1 is a document in English but each page of which is on paper which is heavily embossed with an oriental pattern and which appears to bear a stamp or seal. In his witness statement before the First-tier Tribunal MA stated that the documents he submitted in support of his claim were genuine and obtained through his lawyers and relatives from Bangladesh.

34.

Judge Wellesley-Cole considered that MA had not been consistent about the language of MA1. However, it is not clear from paragraph 16 of the determination precisely what point was being made here. It does appear that MA claimed before the Tribunal that the documents were sent to him by his solicitor in Bangladesh who also provided the translation. He said that in 2002 he lost the original documents but failed to explain how that came about. No explanation was provided to the First-tier Tribunal, or indeed to us, as to the stamps or seals.

35.

In the title at the head of MA1 the proceedings are described as: “Mr. [MA] & others

accused

versus State

Prosecution”

However, the other five accused are named in the summary of evidence in the judgment where their part in the events is described and their names also appear in the

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order with which the document concludes; they are each sentenced to 5 years rigorous imprisonment. The names correspond with the names of the co-accused in MA7. 36.

On its face MA7 is an official statement by the Ministry of Home Affairs of Bangladesh confirming, by reference to a police report and the order of the 3rd Court in Sylhet, the conviction of MA. It refers to the criminal proceedings by the same reference number which appears on MA1. It names MA and five other defendants all of whom, it states, were convicted. The names of the co-accused correspond to those named in MA1. In his witness statement of 13 June 2013 prepared for the hearing before the First-tier Tribunal, MA states that, as the Secretary of State has disregarded the supporting documents he produced, he is now providing further documents for the consideration of the Immigration Judge.

37.

It is a curious feature of this case that MA7 is not referred to in the determination of the First-tier Tribunal. This gave rise to an issue before us as to whether MA7 was before the First-tier Tribunal at all. However, it was eventually established by reference to the index to the bundle before the Tribunal that MA7 was produced.

38.

The fact that this document was not before the Secretary of State does not render PJ (Sri Lanka) inapplicable in my view. MA was not precluded from relying before the First-tier Tribunal on evidence which was not before the Secretary of State. Although MA7 was not expressly referred to in the determination, it must follow from the rejection of MA’s case that it was not accepted as authentic.

39.

Following the hearing on 21 January 2016 it occurred to me that, on its face, MA1 was inconsistent with the account given by MA in his evidence. In his witness statement dated 13 June 2013, prepared for the hearing before the First-tier Tribunal, MA states: “On 10/02/98 I was organised a rally with my fellow members in sylhet campaigning against the government for free and fair election. When we were passing Awami league office Zinda Bazar, the Awami League members attacked us with various dangerous weapons. The fight broke out and I left he place with some other party members as the situation became violent. Unfortunately one member of ruling Awami Leage named Balayet Hussain seriously injured and died on his way to hospital. A false allegation was made against me including others by the leader of Awami League although I was not involved in the murder of Balayat Hussain. I went into hiding on the day after the murder. An arrest warrant was issued against me. I fled from Sylhet fearing for my life because I will not get a fair trial. On 02/05/2001 I was convicted for murder in absentia for 12 years imprisonment. I then advised and helped by the senior leaders of BNP for my safe passage to Western Europe. (sic)” (at para. 4) By contrast, the purported judgment in MA1 includes no reference to the fact that MA was tried in his absence. On the contrary it states: “Charge was framed against all the accused U/S 302/34 of B.P.C. & explosive substance Act section 4. The charge was read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. The prosecution has examined 10 witnesses out of 11 witnesses mentioned in the charge sheet.

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After closing the evidence of the prosecution witnesses the accused person was examined U/S. 342 of Cr. P. C. in which they pleaded not guilty and refused to produce any evidence. The trend of cross-examination of defence lawyer the defence case appears to be that they have falsely implicated in this case out of Political gain. (sic)” On its face, MA1 contradicts MA’s claim that he was tried in his absence. This was not referred to in the Secretary of State’s decision or in either of the Tribunal determinations. Moreover, it was not referred to in argument before us. 40.

As a result the court invited the parties to make further written submissions on this point. On behalf of the Secretary of State Mr. Greatorex submits that this is a further serious and unexplained inconsistency and yet another reason why MA’s appeal should be dismissed. On behalf of MA Mr. Malik submits that it has been MA’s case throughout that he was tried in his absence and that this is consistent with his asylum interview where MA maintained that he was in hiding and was represented by his lawyer at the trial. It is said that MA1 is consistent with MA’s having been tried in his absence but represented by his lawyer at the trial. In this regard I also note that MA2 and MA3, which purport to be letters sent in 2002 from Mr. M.A. Hussain, MA’s lawyer, inform him of his conviction in his absence.

41.

The suggested inconsistency raised by the court was not raised by the Secretary of State in refusing MA’s application or by her representative when cross examining MA before the First-tier Tribunal. In these circumstances it is not possible for this court to come to a concluded view on the point.

42.

Are documents MA1 and MA7 at the centre of the request for protection? Considered at one level, they are. If authentic they provide strong support for MA’s claim that he was convicted of a murder which took place in the context of violence between two rival political organisations and that he was sentenced to imprisonment. These documents, without more, however, would not establish that MA has a well-founded fear of persecution because of his political opinions or allegiance. The evidence against MA may have been truthful and his conviction and sentence may be no more than the just operation of the Bangladeshi criminal justice system. Nevertheless, these documents are potentially probative of elements at the heart of his case. They do not address the entirety of the central issue but they relate directly to an important part of it. Moreover, MA7 can on one view be considered to be precisely the sort of document which one might obtain and rely upon in circumstances where one’s account had been disbelieved and the authenticity of one’s documentary evidence rejected by the Secretary of State.

43.

Would a simple process of inquiry conclusively resolve the authenticity and reliability of these documents? It seems to me that cases will be rare in which a court could be completely confident that a simple process of inquiry will conclusively resolve the issue. In Singh it was adjudged that a request of UNHCR would have been extremely likely to resolve the issue in that case once and for all. By contrast, the documents in the present case may well prove difficult to verify.

44.

The approach formulated by this court in PJ (Sri Lanka) also requires a consideration of whether in all the circumstances of the particular case the Secretary of State was under an obligation to make enquiries into the authenticity and accuracy of the

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documents. In this context Mr. Greatorex placed great emphasis on the finding of Judge Wellesley-Cole that MA was a mendacious witness whom she comprehensively disbelieved. The judge was well placed to come to this conclusion for which, as we have seen, she gave detailed reasons unrelated to the contested documents. This may undoubtedly reflect on the authenticity of the documents on which MA seeks to rely. The process can, nevertheless, work in both directions and in a case where documents are eventually shown to be genuine, this may be capable of having an important impact on the assessment of the truthfulness of an appellant’s case. 45.

There is, however, force in Mr. Greatorex’s reliance on uncontested features in the history of MA’s case. If MA has a well-founded fear of persecution on grounds of his political opinion, as he alleges, it is in a high degree improbable that he should have remained in Bangladesh after he was kidnapped and tortured in 1997, that he should have remained in Bangladesh for three years after going into hiding the day after the death of Balayet Hussain, that he should have left the country on his own passport, that he made no claim for asylum on arrival in the United Kingdom or when making an Article 8 claim in 2009, that he made an application to the Bangladeshi High Commission in London for a new passport in 2010, and that he applied for asylum only after he was found working illegally here in 2012. This court in PJ (Sri Lanka) emphasised that, while the circumstances of particular cases may exceptionally necessitate an element of investigation of documents by national authorities, documents should not be viewed in isolation but considered in the context of all the evidence. The uncontested evidence of MA’s conduct is compelling evidence that his claim for asylum is not genuine. In these circumstances, I conclude that the Secretary of State was under no obligation to make further enquiries, which in any event may give no certainty of outcome, as to the authenticity of these documents.

46.

I consider that the decision of the First-tier Tribunal is not open to challenge on PJ (Sri Lanka) grounds.

AM 47.

AM’s appeal is founded on a failure by the Secretary of State to take any steps to verify certain newspaper reports. Following some uncertainty, it was finally established during the hearing that the reports in question were before the Secretary of State when she made her decision and before the First-tier Tribunal. Mr. Malik was content to base his appeal on four of these reports. (1) The first (AM1) is a report in Bengali which, it is said, appeared in The Weekly Bangladesh on 29 March 2013. It includes a photograph which is said to be of AM. The English translation with which the Secretary of State was provided bears the heading “Demand for withdrawal of case against lecturer [AM] in Biswanath”. The translation continues with a statement that “many social organization of Biswanath in the UK along with Biswanath Development Trust, Biswanath Aid and Khajanchi Union Trust” have condemned the file of false cases against AM. It states that “some ultra enthusiastic police officials” have filed false claims against respected persons. It is signed by six individuals whose names and representative capacities are set out at the foot of the article. (2) The second (AM2) is a report in Bengali, which, it is said, appeared in The Daily Notun Din, 5-11 April 2013. It includes the same photograph of AM and the

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translation of the text is identical to AM1 save that the words “press release” appear at the end.

(3) The third (AM3) is a report in English which, on its face, purports to be a download of an online report in The Daily Star. It is undated. The text states that members of the Awami League have bulldozed the houses in Satkhira of Jamaat chiefs in the presence of law enforcers. (4) The fourth (AM4) is a report in English which on its face purport to be a download of an online report in The Daily Star from a staff correspondent in Sylhet. It is undated. The text states that Golam Rabbani was shot dead as JamaatShibir men clashed with law enforcers. It refers to a procession and states that when protesters threw brick chips at the police, the police fired into the crowd killing Golam Rabbani. 48.

49.

I am unable to accept Mr. Malik’s submission that these documents are at the centre of AM’s request for protection. On the contrary, while certain of them may provide some support for his claim, they seem to me to be totally peripheral to the substance of his case. (1)

AM1 provides some support for AM’s claim of involvement in the Jamaat al Islami party and that he has been the subject of a false charge. However, it is not a statement by a newspaper or its correspondent but a statement by a number of persons, acting in various representative capacities, who have subscribed to it. As such it is of very limited probative value.

(2)

The same is true of AM2, the translation of which bears the words “press release”.

(3)

It is difficult to see what relationship AM3 bears to the claim, beyond providing some evidence that law enforcers have acquiesced in the destruction by members of the Awami League of the homes of certain leaders of Jamaat al Islami. It makes no reference to AM.

(4)

AM4, if authentic and accurate, provides support for AM’s claim that a protest took place and that a man named Golam Rabbani was killed when police opened fire on the protesters. In his determination Judge of the First-tier Tribunal Fisher referred specifically to AM4. He emphasised the need to consider documentary evidence in the round. He found it more likely that AM had taken a known event in the form of a demonstration and then fabricated an account around it in the hope that it would be found credible. However, in any event, AM4 does not support AM’s claim that he was an organiser or that he has been charged with any offence in relation to this event. In my view, it is certainly not at the centre of AM’s request for protection.

In an attempt to avoid this obstacle in his path, Mr. Malik in reply sought to place reliance on the fact that AM1 and AM2 included a photograph of AM. This, he submitted, would expose AM to risk if he were to return to Bangladesh. While I accept that one of the points which AM has made before the First-tier Tribunal and

Judgment Approved by the court for handing down.

the Upper Tribunal is that because of the publication of his photograph he would be at risk of recognition and victimisation, this is not the heart of his claim for protection and could not possibly justify requiring the Secretary of State to seek to verify these newspaper reports. In any event, I am unable to accept that these newspaper reports from 2013, the first of which, if authentic, was in a newspaper published in the United Kingdom, could at this distance in time expose AM to any real risk on his return to Bangladesh. 50.

In his reply, Mr. Malik very fairly accepted that it would be unrealistic to expect the Secretary of State to verify these newspaper reports and their contents. However, he once again fell back on his submission that AM would be at risk in Bangladesh because of the publication of his photograph. As explained above, this was at best a peripheral element of his claim and it is unrealistic to suppose that he would be at risk by reason of the appearance of his photograph in these reports.

51.

For these reasons I have come to the conclusion that there was no duty on the Secretary of State to seek to verify the documents relied on by AM. The claim fails to satisfy both the qualifying tests. Moreover, I consider that, taking the evidence in its entirety, the First-tier Tribunal dealt with the issue of the authenticity of documents correctly in accordance with Tanveer Ahmed.

Ground 2: The decisions of the First-tier Tribunal and the Upper Tribunal in both cases display a lack of anxious scrutiny. 52.

At the hearing before us we granted leave to MA and AM to rely on a second ground of appeal alleging a lack of anxious scrutiny on the part of the First-tier Tribunal and the Upper Tribunal in both cases.

53.

The requirement to apply anxious scrutiny in the decision making process in asylum cases is well established. (See, for example, YH v. Secretary of State for the Home Department [2010] EWCA Civ 116; [2010] 4 All ER 448; ML (Nigeria) v. Secretary of State for the Home Department [2013] EWCA Civ 844.) On behalf of the appellants it is submitted that the principle of anxious scrutiny placed an obligation on the Secretary of State to verify the authenticity and reliability of the documents relied upon and upon the First-tier Tribunal to attach weight to them in the absence of such verification.

54.

I consider that the principle of anxious scrutiny informs the approach laid down by this court in PJ (Sri Lanka). For the reasons given earlier in this judgment, there was no obligation on the Secretary of State to take steps to verify the documents relied upon in the case of either appellant.

Conclusion 55.

For the reasons set out above, I would dismiss both appeals.

LORD JUSTICE DAVIS : 56.

I agree.

LORD JUSTICE UNDERHILL :

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57.

I also agree.

Neutral Citation Number: [2016] EWCA Civ 176 Case No: B6/2016/0548 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT FAMILY DIVISION MR JUSTICE HAYDEN FD14F00410 Royal Courts of Justice Strand, London, WC2A 2LL Date: 22/03/2016 Before: THE MASTER OF THE ROLLS LADY JUSTICE KING and LORD JUSTICE HAMBLEN ——————–Between: WALID AHMED AL-JUFFALI - and CHRISTINA ESTRADA

SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS

Appellant Respondent

Intervener

—————————————-Martin Pointer QC, Martin Chamberlain QC and Nicholas Wilkinson (instructed by Mischon de Reya LLP) for the Appellant Charles Howard QC, Tim Owen QC, Deepak Nagpal and Tom Hickman (instructed by Hughes Fowler Carruthers) for the Respondent Tim Eicke QC, Jessica Wells and Guglielmo Verdirame (instructed by Government Legal Department) for the Intervener (intervening by written submissions only) Hearing date: 03/03/2016


Judgment

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Estrada v Al-Juffali

Master of the Rolls: 1.

This is an appeal against the order of Hayden J dated 8 February 2016 dismissing the application of the appellant (“H”) to strike out the claim of the respondent (“W”) for financial relief pursuant to Part III of the Matrimonial and Family Proceedings Act 1984 (“the 1984 Act”). H’s application was made on the basis that he was entitled to immunity as Permanent Representative of St Lucia to the International Maritime Organisation (“IMO”), a position to which he was appointed on 1 April 2014. The judge held that (i) He is not entitled in principle to immunity because he had not discharged any functions as a Permanent Representative and his appointment was an “artificial construct” designed to defeat the jurisdiction of the court; and (ii) in any event, he is not entitled to immunity because he was “permanently resident” in the UK and so, if he was in principle entitled to immunity, it was only in respect of official acts performed in the exercise of his functions. In this appeal, H contends that both of these conclusions were wrong on the grounds that (i) he is entitled in principle to immunity and (ii) he is not permanently resident in the UK.

2.

The parties were married on 18 September 2001. They have one daughter, who was born on 30 October 2002. During their marriage, they lived a cosmopolitan life. W has been based in the UK. H has been engaged in his substantial business interests, mostly in Saudi Arabia. He is a Saudi national and has never sought or been granted any extended or permanent rights to remain in the UK. The marriage broke down in 2012. H married again in February 2012. It will be necessary to examine the facts in more detail in relation to the question of whether he is permanently resident in the UK.

IS H ENTITLED TO IMMUNITY IN PRINCIPLE? General International Framework 3.

The IMO is an international organisation established by treaty and a specialised agency of the United Nations. As an international organisation, it has legal and operational autonomy which, inter alia, enables it to establish its own procedures for the appointment and accreditation of Permanent Representatives of Member States. The immunities and privileges of the IMO itself, its officials, and the Permanent Representatives of its Member States are governed, as a matter of international law, by a combination of the UN Convention on the Privileges and Immunities of Specialised Agencies (“the Specialised Agencies Convention”) and the Headquarters Agreement between the UK and the IMO as amended by (i) the Exchange of Notes dated 20 January 1982 and (ii) the Exchange of Notes dated 4 January 2002 (“the Headquarters Agreement”).

4.

The UK’s obligations under the Headquarters Agreement in relation to the immunities and privileges of Permanent Representatives to the IMO are given effect in domestic law by the International Maritime Organisation (Immunities and Privileges) Order 2002 (SI 2002/1826) (“the IMO Order”).

5.

The Vienna Convention on Diplomatic Relations (“the VCDR”) codifies the rules for the exchange of embassies among sovereign States. It does not therefore govern the immunities and privileges of Permanent Representatives to the IMO (or of IMO officials). However, where the relevant rules of international or domestic law so

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require or permit, it is common ground that reference may be made to the VCDR in the determination of the nature and extent of the immunities and privileges conferred, as a matter of law, on Permanent Representatives. In the court below, the argument of W focussed on the VCDR, in particular Articles 38 and 39. It is now common ground that the relevant international instruments are the Specialised Agencies Convention and the Headquarters Agreement. Material International and Domestic Law Provisions 6.

The UK is required, as a matter of international law, to grant privileges and immunities to Personal Representatives of Member States to the IMO in accordance with the Specialised Agencies Convention and the Headquarters Agreement.

7.

Article 13 bis of the Headquarters Agreement provides: “(1) Every person designated by a Member of the Organisation as its Permanent Representative or Acting Permanent Representative and the resident members of its mission of diplomatic rank shall enjoy, for the term of their business with the Organisation, the privileges and immunities set out in Article V, Section 13 of the [Specialised Agencies Convention]. (2)… (2A) In addition to the immunities and privileges specified in paragraphs (1) and (2) of the article, the Permanent Representative and acting Permanent Representative shall enjoy, in respect of themselves and members of their families forming part of their households, for the terms of their business with the Organisation, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law. (3) The provisions of Article V, Sections 14 and 16 and of Article VII, Section 25 of the [Specialised Agencies Convention] shall apply to the persons mentioned in paragraph (1) of this Article. Following completion of the procedures laid down by Section 25 in respect of any person, the privileges and immunities of that person shall cease on expiry of a reasonable time in which to leave the United Kingdom. (4) The Government shall be notified by the Secretary-General, in accordance with a procedure established by the Council, of the appointment of a Permanent Representative or an Acting Permanent Representative and of each member of the mission. Paragraphs (1) to (3) of this Article shall not apply to any person unless and until his name and status are duly notified to the Government,

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(5)…Paragraphs (2) and (2A) shall not apply to any person who is permanently resident in the United Kingdom; paragraphs (1) and (2A) shall only apply to a person so resident while exercising his official functions. ” 8.

Article V of the Specialised Agencies Convention provides for immunities from legal process for Personal Representatives of Member States.

9.

Article 13 bis of the Headquarters Agreement is given effect in domestic law by the IMO Order, Article 15 of which provides: “(1) Except in so far as in any particular case any privilege or immunity is waived by the Government of the member whom he represents, every person designated by a member of the Organisation as its Principal Permanent Representative or acting Principal Permanent Representative to the Organisation in the United Kingdom, and members of their family forming part of their household, shall enjoy for the term of his business with the Organisation: (a) the like immunity for suit and legal process as is accorded to the head of a diplomatic mission; (b) … © … (d) … (e) … (f) … (g) … Provided that sub-paragraphs (d) to (h) of this paragraph shall not apply to any person who is a permanent resident of the United Kingdom, and subparagraphs (a) to © shall apply to any such person only while he is exercising his official functions.”

10.

I accept the submission of the Secretary of State that “the like immunity from suit and legal process as is accorded to the head of a diplomatic mission” in Article 15(1)(a) of the IMO Order is a reference to the provisions of the VCDR establishing the nature and material scope of immunities, such as Article 31 (on the immunity from jurisdiction of diplomatic agents).

11.

By contrast, other provisions of the VCDR, particularly those governing procedural aspects of acquiring immunity as a head of a diplomatic mission, are not those which the reference to “like immunity” in Article 15(1)(a) of the IMO Order is intended to import. As a consequence, Article 8(1), Article 38(1), Article 39(1) and Article 43 of the VCDR, each cited by the judge, are among the VCDR provisions which are not transposed or imported into the plane of UK/IMO relations.

12.

I should, however, refer to Articles 31 and 39 of the VCDR. Article 31 provides that a diplomatic agent “shall enjoy immunity from suit” except in certain cases which is it not necessary to describe. Article 39 provides:

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“1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed. ” 2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist. 3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country. 4. In the event of the death of a member of the mission not a national of or permanently resident in the receiving State or a member of his family forming part of his household, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission. 13.

The procedure for accreditation of Permanent Representatives to the IMO is governed by Annex 3 to IMO Assembly Resolution A.908(22) of 5 June 2002 (“the IMO Procedures”). These provide inter alia: “1. For the accreditation of a Permanent Representative to IMO the Member Government concerned shall make known in writing to the Secretary-General the name and rank of the person designated for that purpose.” 2. (a) Where a Member Government wishes to accredit as Permanent Representative a person who is not already or will not be accredited to the Government of the United Kingdom, it shall inform the Secretary-General of the name and rank of such person before accreditation… (b) The Secretary-General shall inform the Government of the United Kingdom of the nomination and the Government may express its views thereon to the Secretary-General.

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© Where the Government of the United Kingdom raises an objection to a person so nominated, consultations shall take place between the Secretary-General and the Government of the United Kingdom.” 14.

If a question arises in any proceedings before the English courts as to whether a person is or is not entitled to any privilege or immunity, section 8 of the International Organisations Act 1968 (“the 1968 Act”) provides that: “….a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact.”

15.

In the light of the foregoing, the following principles are applicable to persons appointed as Permanent Representatives to the IMO in the UK. First, the sending State is free to appoint anyone as a Permanent Representative, subject to the terms of the Headquarters Agreement and the IMO Procedures. Secondly, under the IMO Procedures, the Government of the UK may express its views on an appointment and, if it raises an objection, consultations shall take place between the Secretary-General of the IMO and the UK Government. These procedures do not, however, provide for any other way for the UK to raise objections to, override or reject appointments. The only other relevant power is conferred on a host government under Article VII, Section 25 of the Specialised Agencies Convention, which provides a mechanism for dealing with abuses of privileges and immunities which may result in a representative of Member States being required to leave the country “in accordance with the diplomatic procedure applicable to diplomatic envoys accredited to that country” (i.e. to be declared persona non grata). Thirdly, it is a matter entirely within the discretion of the UK Government whether it wishes to express views or raise an objection to the appointment of a Permanent Representative, as contemplated under the IMO Procedures. Fourthly, under Article 13 bis of the Headquarters Agreement (and Article 15 of the IMO Order), Permanent Representatives enjoy immunities and privileges “for the term of their business with the Organisation”. Neither Article 13 bis of the Headquarters Agreement nor Article 15 of the IMO Order makes as detailed provisions on the commencement of immunities and privileges as are found in Article 39(1) of the VCDR. Reference to this provision may nonetheless be appropriate by analogy, save to the extent that there is any inconsistency between the two sets of provisions. Fifthly, a Permanent Representative is entitled to the same immunity from suit and legal process as that accorded to the head of a diplomatic mission, subject to the limitation, pursuant to Article 15 of the IMO Order, that a Permanent Representative who is “permanently resident” in the UK is only entitled to such immunities and privileges in respect of his official acts.

The appointment of H 16.

On 1 April 2014, H was appointed as “Ambassador and Permanent Representative” of St Lucia to the IMO in the UK with effect from 15 April 2014. The appointment was made by the Governor-General of St Lucia: see the warrant of appointment of 1 April. The appointment was officially notified by the Minister of External Affairs to the Secretary-General of the IMO and was duly notified to the Foreign and Commonwealth Office (“FCO”). His name appears in the diplomatic list published by the FCO as St Lucia’s Permanent Representative to the IMO.

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17.

During the hearing, the judge requested the FCO to provide a certificate under section 8 of the 1968 Act. He requested the Secretary of State to certify (i) whether, and if so when, the FCO had been notified of the appointment of H as Permanent Representative of St Lucia to the IMO; (ii) whether, and if so when, Dr Juffali was accredited by the FCO as St Lucia’s Permanent Representative; and (iii) whether the FCO had been notified that the diplomatic functions of Dr Juffali had been terminated.

18.

The Secretary of State provided a document which certified the following facts: “(i) the Secretary-General of the [IMO] informed the UK Government of the appointment of Dr Juffali as Permanent Representative of St Lucia to the [IMO] on 8 May 2014; (ii) the appointment of Dr Walid Ahmed Juffali as St Lucia’s Permanent Representative to the [IMO] was subsequently notified to the [FCO] by the Head of Mission at the High Commission of St Lucia in London. Dr Juffali’s arrival date was notified as 14 April 2014; (iii) the [FCO] has not been notified that the diplomatic functions of Dr Juffali as St Lucia’s Permanent Representative to the [IMO] have been terminated.”

19.

The judge accepted at para 13 of his judgment that, on the face of it, the certificate “is ‘conclusive’ evidence of the stated fact i.e. the appointment”. However, he went on to consider whether, as a matter of fact, H had “taken up his appointment” before concluding that he had not acquired diplomatic immunity by his status as Permanent Representative.

20.

Having referred to a number of cases in which the compatibility of the grant of immunity from jurisdiction with Article 6 of the European Convention of Human Rights (“the ECHR”) has been considered, the judge concluded at para 34: “The cumulative impact of this case law is, in my judgement, to identify a balance that has evolved, designed to protect the ‘functionality’ or ‘effectiveness’ of a mission and to recognise the need to minimise abuse of diplomatic immunity. It is this balance which both underlies the policy considerations and establishes the proportionality of the restriction in ECHR terms. If ‘functionality’ is extracted from the equation, because no functions have been discharged or, to adopt Diplock LJ’s terms, the diplomat is not ‘en poste’, there can remain only unjustified privilege or immunity linked solely to the private activities of an individual. If such is the case both the policy considerations and the proportionality of restriction cannot be justified in Convention terms and cannot be said to pursue a legitimate claim sufficient to eclipse W’s right of access to a court.”

21.

The reference to Diplock LJ was to Empson v Smith [1966] 1 QB 426 at p 429C. At para 35(vi) of his judgment, the judge found that since his appointment, “H has not undertaken any duties of any kind in the pursuit of functions of office”. He said that W had provided persuasive evidence that H’s health was such that he was not in a position at present to fulfil any ambassadorial duties. At para 36, he said: “H has sought and obtained a diplomatic appointment with the sole intention of defeating W’s claims consequent on the

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breakdown of their marriage. H has not, in any real sense, taken up his appointment, nor has he discharged any responsibilities in connection with it. It is an entirely artificial construct. I draw back from describing it as a ‘sham’, mindful of the forensic precision required to support such a conclusion.” 22.

At para 40, he said that he was “not prepared to accede to H’s request to strike out W’s Part III claim on his spurious assertion of diplomatic immunity, as I find it to be.”

WAS H ENTITLED TO IMMUNITY IN PRINCIPLE? 23.

Mr Chamberlain QC submits that the judge’s finding at para 36 was based on a misunderstanding of the evidence and was not open to him. More fundamentally, however, Mr Chamberlain and the Secretary of State submit that the judge was wrong in law to investigate the question of whether H had discharged the functions of a Permanent Representative, i.e. to conduct a functional review. They say that such an approach is unsupported by authority and, if correct, would have far-reaching undesirable consequences for international relations. These consequences would not be limited to claims to immunity by Permanent Representatives to the IMO. They would apply equally to claims to immunity by diplomatic agents. The judge’s approach would mean that an English court faced with a claim to diplomatic immunity would be entitled (and obliged) to receive and assess evidence in order to determine whether a properly appointed and properly accredited diplomat has in a real sense taken up his post and discharged his responsibilities and what motivated him to seek the post in the first place. If the Government of the sending State chose not to submit evidence of the responsibilities discharged (for example, because, it refused to account for the activities of its diplomatic agents to the courts of another State), it would risk a finding by an English court that its appointment was an “artificial construct” or a “sham”.

24.

The Secretary of State highlights the risks that would arise if the judge’s approach were adopted by the courts of other States. The position of the UK’s diplomats and Permanent Representatives in other countries might be scrutinised, and their status unjustifiably curtailed, by the courts of receiving States asserting a power to undertake a functional review. The conduct of foreign relations and the work of international organisations could be seriously hampered if the acceptance of accreditation of diplomats and Permanent Representatives was not regarded as conclusive, but was open to scrutiny by the courts.

25.

There is no support in the relevant international instruments or the case law for a functional review by a court where there is a challenge to a claim to immunity by a diplomat or Permanent Representative. The Specialised Agencies Convention, on which the immunities and privileges of Permanent Representatives to the IMO are in part based, provides (at Article V, Section 16) that: “Privileges and immunities are accorded to the representatives of members, not for the personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions in connection with the specialised agencies. Consequently, a member not only has the right but is under a duty to waive the immunity of its representatives in any case

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where, in the opinion of the member, the immunity would impede the course of justice, and where it can be waived without prejudice to the purpose for which the immunity is accorded. ” 26.

It is thus envisaged that circumstances might arise in which a claim of immunity might be unjustified on the facts of a particular case. In fact, Article VII, Sections 2425 provides for specific (and exclusive) mechanisms for dealing with abuses of privilege and immunities. Moreover, Article V, Section 16 provides that the sending State has a duty to waive the immunity in certain circumstances. However, it is not envisaged that the correct response to such a situation is for the domestic courts to look behind the status of the representative. The decision whether or not to waive the immunity is a matter which is solely within the executive discretion of the sending State or the courts of the sending State. I accept the submission of the Secretary of State that, if the sending State does not waive immunity, the courts of the receiving State are required to grant immunity.

27.

The provisions of the VCDR do not provide any support for the judge’s approach either. Quite the contrary. Article 39 makes it plain that diplomatic immunity starts before the diplomat begins to perform any diplomatic functions when he enters the receiving State “on proceeding to take up his post” or “from the moment when his appointment is notified to the Ministry of Foreign Affairs”. Accordingly, as Mr Chamberlain submits, Article 39 identifies the starting point for diplomatic immunity and it is on any view before the diplomat has taken up his post.

28.

Article 43 of the VCDR identifies two circumstances in which a diplomat’s functions “come to an end”: first, on notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end; secondly, on notification by the receiving State to the sending State that, in accordance with paragraph 2 of Article 9, it refuses to recognise the diplomatic agent as a member of the mission. This latter procedure is the means by which a receiving State designates a diplomat as persona non grata. As Mr Chamberlain points out, these are not the only two circumstances in which a diplomat’s functions can come to an end. No doubt the death of a diplomat would be another (hence the need for the protection for family members provided in Article 39(3)). But they do show that the VCDR envisages a formal process by which the functions of the diplomat can be brought to an end. Once they have been brought to an end, the diplomat retains his privileges and immunities in accordance with Article 39(2) until he leaves the country or until the expiry of a reasonable period in which to do so. But all of this is fundamentally inconsistent with the judge’s approach, according to which immunity depends on a factual finding by the courts of the receiving State as to whether the diplomat is “en poste” in the sense of having begun to discharge his functions.

29.

I acknowledge that Article 43 has not been incorporated into our domestic law by the Diplomatic Privileges Act 1964 (“the 1964 Act”). But I agree with what Blake J said in Al Atiyya v Al Thani [2016] EWHC 212 (QB) at para 39 that it is legitimate to construe the terms of the VCDR that have been incorporated into domestic law by reference to all of its provisions, including those that have not been so incorporated. The VCDR has an autonomous international meaning. It is irrelevant to its proper interpretation whether any of its provisions have been incorporated into any particular domestic legal system.

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30.

Article 13 of the VCDR is also important. It provides that a head of mission is “considered as having taken up his functions in the receiving State either when he has presented his credentials or when he has notified his arrival and a true copy of his credentials has been presented to the [receiving State]”.

31.

Mr Hickman submits that Article 39(1) of the VCDR draws a distinction between a person who is “entitled” to diplomatic privileges and immunities and a person who “enjoys” them. A person appointed as a diplomatic agent to a permanent mission does not enjoy immunity until he has entered the receiving country to take up his post. If after appointment he enters the country for other reasons and/or does not proceed to take up his post, no immunity will arise. It follows, he submits, that there are cases in which appointment as a diplomatic agent is not sufficient for a person to enjoy immunities under Article 39(1). This will be the case even where the diplomatic agent has been notified to the UK Government, accredited and placed on the diplomatic list. The same is true of Article 39(2), which does not refer to the “appointment” of a diplomatic agent coming to an end, but the “functions” of a person “enjoying privileges and immunities” coming to an end. There are circumstances in which the functions of a diplomatic agent can come to an end other than by his appointment coming to an end. Death and incapacity are obvious examples.

32.

There is superficial force in these points. But in my view, the contrary arguments based on the language of the VCDR, which I have summarised at paras 27 to 30 above are unanswerable.

33.

I come back to the practical implications of the judge’s approach. In Al Atiyya, Blake J rejected submissions which were very similar to those advanced by W in the present case. I agree with what he said: “74. In the previous cases where a FCO certificate or letter has been issued, the court has treated the question of whether a person is a diplomatic agent as settled by the question of whether the receiving state has accepted the accreditation of the sending state or not. Whilst acceptance is not an act that itself affords the immunity, it is regarded by the courts as good evidence of the fact of membership of diplomatic staff. The fact that the courts have not previously asked more searching questions and sought evidence of the precise activity that has been performed suggests that such an inquiry was considered unnecessary. 75. There would be real difficulties and uncertainties if the court were to undertake the inquiry that the claimant contends it should. The sending state is not obliged to provide evidence and the nature of any exchanges in which the person concerned may have engaged might well be something that both states would prefer not to disclose. A functional inquiry may well result in information not known to the FCO being examined and opens the door to the real possibility that conflicting factual findings are made between the court and the FCO, with the result that the one voice principle is undermined.

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76. If the FCO has good reason to believe that the status of diplomat and membership of the staff of a mission is being abused by the sending state to promote the personal convenience of the propositus, there may be representations made that immunity is waived by the sending state or that the person ceases to be a member of a mission. In the last resort, a person may be declared persona non grata, but even in those circumstances I anticipate that in the light of VCDR Art 9 (2) and 39 (2) some time to leave the country would be afforded before any immunity ceased. 77. Leaving the control mechanism for termination of an appointment in the hands of the FCO, if it considers appropriate, avoids the risk of inconsistency and leaves the exercise of the prerogative untrammelled by a rival judicial enquiry. The prerogative power of conducting foreign relations is exercised by the executive through the FCO and not by the courts; that power includes the exercise of waiver where considered expedient. If private commercial activity by a member of the diplomatic staff of a mission has been taking place in breach of Article 42,that may be the subject of waiver by the receiving state. Equally a receiving state may be content to accept a member of diplomatic staff even if that person is not engaged in such a function full time. 78. The sending state’s freedom of appointment under Article 7 goes beyond the identity of the appointee and extends to the rank to which the person is appointed, as well as the instructions as to the activity to be appointed to and the degree of time spent on it. If both the receiving and sending state are aware that a diplomat is spending significant periods of time on other matters, that may be a reason to terminate the appointment but it does not follow that immunity does not apply while the person remains an accredited diplomat.” 34.

This is consistent with the common law approach to establishing entitlement to diplomatic immunity which was authoritatively explained by the House of Lords in Engelke v Musmann [1928] AC 433. As the Attorney General said at p 437: “if the court can go behind [a statement made on behalf of the UK Government that a person has or has not been recognised as a member of the diplomatic staff of a foreign ambassador] and themselves seek to investigate the facts, compelling the person on behalf of whom immunity is claimed to submit to legal process, it would be impossible for His Majesty to fulfil the obligations imposed on him by international law and the comity of nations, since the steps taken to investigate the claims would in themselves involve a breach of diplomatic immunity which in the event the Court might decide to have been established.” This was accepted by the House: see per Lord Buckmaster at p 446-7, Viscount Dunedin at p 448 and Lord Phillimore at p 455.

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35.

Mr Hickman submits that the common law is irrelevant because the position is now governed by statute. But it would be surprising if Parliament had intended to effect the fundamental change in the law relating to diplomatic immunity for which Mr Hickman contends. We have seen nothing to indicate that Parliament intended to effect such a change, which would potentially hamper the conduct of foreign relations and the work of international organisations. No reason has been advanced to suggest why Parliament would or might have wished to do this.

36.

Mr Hickman relies on a trilogy of cases in support of his submission that, in investigating the factual basis of H’s claim to immunity, the judge adopted an approach that was correct in law. These are R v Governor of Pentonville Prison ex p Teja [1971] 2 QB 274, R v Secretary of State for the Home Department ex p Bagga [1991] QB 485 and Apex Global Management Ltd v Fi Call & Others [2013] EWHC 587 (Ch).

37.

In Teja an Indian national claimed immunity as a member of a diplomatic mission of Costa Rica. There was a certificate before the court from the FCO stating that the applicant “has not been accredited to the Court of St James as a diplomatic agent”. It was held by the Divisional Court that he was not entitled to immunity. A foreign State’s unilateral action in appointing a diplomatic agent did not confer diplomatic immunity. Until the receiving State had accepted and received the intended representative as a persona grata, he was not immune from proceedings in the English courts. In addition, Parker CJ observed at p 283F: “I would add for my part that even if I felt that both of those prior points were wrong, it is almost impossible to say that a man who is employed by a government to go to foreign countries to conclude purely commercial agreements, and not to negotiate in any way or have contact with the other government, can be said to engaged on a diplomatic mission at all.”

38.

These observations were obiter dicta. They are not binding on this court. The ratio of the decision does not assist W, because it is clear that H has not only been appointed by the St Lucia Government, but has also been accepted and received by the FCO.

39.

Bagga was an immigration case which was concerned with the question of whether persons entering the UK as members of missions could be granted leave to remain under the Immigration Act 1971. This did not turn on the question whether the applicants enjoyed immunities under the 1964 Act. As Parker LJ said at p 496F: “so far as immigration is concerned, the Home Office are not in any way involved in what may be the diplomatic niceties as to when a head of mission or other diplomat begins to enjoy the benefits conferred by the [1964 Act]”. In any event, Parker LJ went on to disapprove the reasoning in Teja that both appointment by the sending State and acceptance by the receiving State were required for immunity to apply. In the light of Articles 1 and 39 of VCDR, he said at p 497F that “[i]t could not, I think, be contended that if an embassy chooses to employ a secretary who is already in this country, anything more is required than notification before that person is entitled to enjoy immunities”. In my view, Bagga is inconsistent with the proposition that, in

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deciding whether immunity applies, the court can enquire into the nature of an individual’s activities. 40.

Mr Hickman also relies on Apex Global as a useful source of guidance as to the role of the court when immunity is asserted by a foreign State. But as Mr Chamberlain points out, that was not a case about diplomatic immunity at all. It concerned State immunity. The question at issue was whether individuals were “members of [the Saudi Head of State’s] family forming part of his household” within the meaning of section 20(1)(b) of the State Immunity Act 1978. The Court of Appeal held that, in the absence of a certificate from the Secretary of State under section 4 of the 1964 Act in relation to the princes, there was no basis in law for treating a letter from the Saudi Arabian ambassador stating that the princes formed part of the Saudi Arabian King’s household as conclusive of the immunity issue. They said that the question whether, and when, a diplomat is entitled to immunity is very different. It is a question on which the view of the Secretary of State is conclusive by virtue of section 8 of the 1968 Act.

41.

Section 8 of the 1968 Act provides that, if a question arises in any proceedings before the English courts as to whether a person is entitled to any privilege or immunity, a certificate issued under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact. I have set out at para 18 above the facts the truth of which is conclusively proved by the certificate in the present case. If the immunity of a Permanent Representative or diplomatic agent depends on establishing whether he has in fact performed the relevant diplomatic functions, then the certificate issued in this case is of little value. It does not purport to say anything about the functions performed by H. That is not surprising. The policy reasons justifying the conclusiveness of FCO certificates has been discussed most frequently in the context of issues relating to State immunity. For example, in The Arantzazu Mendi [1939] AC 256, Lord Atkin said: “Our state cannot speak with two voices on such a matter [that is state sovereignty and matters flowing from it], the judiciary saying one thing, the executive another. Our sovereign has to decide whom he will recognise as a fellow sovereign in the family of states; and the relations of the foreign state with ours in the matter of state immunities must flow from that decision alone.”

42.

I accept the submission of the Secretary of State that the same considerations of law and policy apply in the present context. In this case, the Secretary of State certified that (i) he had been notified of H’s appointment and of H’s “arrival date” and (ii) he had not been notified that H’s diplomatic functions had been terminated. The certificate was conclusive evidence of the truth of (i) and (ii). It was also powerful evidence of the truth of the facts themselves, i.e. the appointment, (particularly where, as here, the warrant of appointment was primary evidence of the appointment), H’s “arrival date” and the fact that his diplomatic functions had not been terminated. The judge’s factual determinations were inconsistent with this powerful evidence.

Article 6 of the ECHR

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43.

It seems that the judge considered that a functional review was mandated by Article 6 of the ECHR. However, in my view, there is no suggestion in the jurisprudence of either the ECtHR or the domestic courts that it is necessary or permissible, in determining whether a diplomat or Permanent Representative is in principle entitled to claim immunity, for a court to consider whether that person has “taken up” his post or is fulfilling the requisite functions of the post.

44.

On the contrary, the clear and consistent position taken by the courts is that for a claim to immunity to be regarded as a proportionate restriction on the right of access to a court enshrined in Article 6 of the ECHR, it is necessary to do no more than determine whether the grant of immunity reflects generally recognised rules of public international law. This test was developed by the ECtHR in the context of State immunity. But its application in the context of diplomatic immunity has been expressly endorsed by the decision of this court in Al Malki v Reyes [2015] EWCA Civ 32, [2015] ICR 931 where I said at para 70: “In short, the court held that compliance with a state’s international law obligations is conclusive on the issue of proportionality. In my view, although there are important differences between state immunity and diplomatic immunity, these differences are immaterial to the point of principle that the court enunciated at para 36 [of the ECtHR decision in Fogarty]. The central point is that restrictions on the right of access to court which reflect generally recognised rules of public international law cannot in principle be regarded as disproportionate. The court added that this is so even if international practice as to the meaning or scope of an international obligation is inconsistent, provided that the interpretation applied by the state in question is reasonable and falls within currently accepted international standards.”

45.

In Stichtung Mothers of Srebrenica v Netherlands (2013) 57 EHRR SE10 at para 139 the ECtHR said much the same thing: “(e) the Convention, including art.6, cannot be interpreted in a vacuum. The Court must be mindful of the Convention’s special character as a human rights treaty, and it must also take the relevant rules of international law into account (see, among other authorities and mutatis mutandis, Loizidou v Turkey (1997) 23 E.H.R.R. 513 at [43]; Al-Adsani at [55]; and Nada v Switzerland (2013) 56 E.H.R.R. 18 AT [169]). The Convention should so far as possible, be interpreted in harmony with other rules of international law of which it forms part, including those relating to the grant of immunity to a state (the Court would add: or to an international organisation) (see Loizidou at [43]; Fogarty at [35]; Cudak at [56]; and Sabeh el Leil at [48]); (f)

measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity (the Court would add: or the immunity of international

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organisations) cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in art.6(1). Just as the right of access to a court is an inherent part of the fair trial guaranteed in that article, so some restrictions on access must likewise be regarded as inherent. Examples are those limitations generally accepted by the community of nations as part of the doctrine of immunity from domestic jurisdiction, whether it concerns the immunity of a foreign sovereign State or that of an international organisation (see Fogarty at [36]; and Cudak at [57]);” 46.

The grant of immunity to Permanent Representatives of the IMO, which like diplomatic immunity, is largely governed by international treaties, reflects generally recognised rules of international law. In particular, the UK is required to accord to Permanent Representatives of the IMO the immunities and privileges referred to in Article 13 bis of the Headquarters Agreement. These privileges and immunities are, in turn, themselves delimited by reference to (i) the Specialised Agencies Convention and (ii) those accorded to diplomatic agents under international law.

47.

Mr Hickman submits that the terms of the Headquarters Agreement go well beyond the requirements of the Specialised Agencies Convention. The Headquarters Agreement was amended in November 2001 by the insertion of Article 13 bis (2A) which it is convenient to repeat: “In addition to the immunities and privileges specified in paragraphs (1) and (2) of this Article, the Permanent Representative and acting Permanent Representative shall enjoy, in respect of themselves and members of their families forming part of their households, for the term of their businesses with the Organisation, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.”

48.

This amendment was given effect in the IMO Order and is the source of the immunity claimed by H in this case. Mr Hickman submits that, prior to the amendment, there had been no such general immunity for Permanent Representatives to the IMO. Article 13(1) of the Headquarters Agreement had simply given effect to the immunities and privileges set out in Article V, Section 13 of the Specialised Agencies Convention. Mr Hickman submits that Article V, Sections 13 to 16 set out more limited immunities relating to the official activities of representatives to international organisations which would not avail H in this case. He says that Article 15 of the IMO Order on which H relies represents a fairly recent extension of privileges and immunities and does not reflect international law; nor does it represent a reasonable interpretation of what international law requires.

49.

I reject Mr Hickman’s submission on this point for the reasons given by Mr Chamberlain. The Explanatory Notes to the IMO Order explain that the immunity conferred on principal Permanent Representatives reflects an Exchange of Notes between the UK Government and the IMO. When the IMO Order was placed before Parliament, the Minister said that it:

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“…brings the United Kingdom into step with accepted practice for UN specialised agencies based elsewhere in the world and will allow senior representatives and officials at the IMO to enjoy the same status as they would enjoy if attached to UN specialised agencies in, for example, Paris, Geneva, Vienna or Rome” (HL Deb 10 July 2002, vol 637, col 766). 50.

Immunity for the principal Permanent Representatives derives from the amended Headquarters Agreement. Article 13 bis (2A) provides for Permanent Representatives to receive full diplomatic immunity in the same terms as Article 15 of the IMO Order.

51.

Although the Headquarters Agreement is a bilateral agreement between the UK and the IMO, there are strong indications that full diplomatic immunity for principal Permanent Representatives to the IMO is required by customary international law.

52.

First, Article 30 of the Vienna Convention on the Representation of States in their Relations with International Organisations of a Universal Character 1975 (“the 1975 Convention”) provides full diplomatic immunity for Permanent Representatives of Specialised Agencies. The 1975 Convention applies to all UN specialised agencies (Articles 1.1(2) and 2(1)). A head of mission is defined by Article 1.1(17) as a “permanent representative or permanent observer”. A permanent representative is defined as “the person charged by the sending State with the duty of acting as the head of the permanent mission” (Article 1.1(18)). That would include principal Permanent Representatives of the IMO. It is true that the 1975 Convention has not come into force. That is because it has only received 34 of the necessary 35 ratifications by Member States (not including the UK). Nevertheless, it is reflective and evidence of customary international law.

53.

Secondly, there is good evidence of State practice of conferring full immunity on the principal Permanent Representatives of international organisations, including UN specialised agencies. For example, see the Headquarters Agreements between (i) the United Nations and the US which provides full immunity to “principal permanent representatives”; (ii) NATO and its Member States, which provides full immunity to “every person designated by a Member State as its principal permanent representative”; (iii) the WTO and the Swiss Confederation, which provides full immunity to members of “permanent missions”; (iv) the UN Food and Agriculture Organisation and Italy, which provides full immunity to “principal resident representatives”; (v) the UN Industrial Development Organisation and Austria, which provides full immunity to “members of permanent missions”; (vi) the International Atomic Energy Agency and Austria, which provides full immunity to “permanent missions” and “permanent representatives”; and (vii) the UN Economic Commission for Africa and Ethiopia, which provides full immunity to “resident representatives of government”.

54.

The UN Special Rapporteur on Relations between States and International Organisations has expressed the view that, although there are differences between the immunities enjoyed by different agencies, there is a consensus that such agencies must be given such immunities as they require to enable them to perform their functions effectively; and that is why the immunities to be accorded to each agency are often set out in headquarters agreements: see Leonardo Diaz-Gonzalez, “Fourth

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report on relations between States and international organisations” (April 1989) UN Document No. A/CN.4/424. 55.

It is therefore clear that there is a well-established practice of host States granting full diplomatic immunity to (at least) the principal Permanent Representatives of international organisations, including UN specialised agencies. That State practice is reflected in the 1975 Convention, which, although not universally accepted, commands a considerable degree of international support. The immunity conferred by Article 15 of the IMO Order was expressly conferred to bring the UK into line with State practice in relation to other UN specialised agencies. These facts indicate that the immunity conferred by Article 15 reflects international law, or at least that the view that it reflects international law is “reasonable and falls within currently accepted international standards” (Al-Malki para 70).

56.

For all these reasons, I reject the submission that Article 15 is incompatible with Article 6 of the ECHR. I do not, therefore, need to deal with Mr Chamberlain’s submission that the judge’s finding at para 36 of his judgment was not open to him on the facts.

Conclusion on whether H is entitled in principle to immunity 57.

For the reasons that I have set out, I would hold that the judge erred in his approach to the immunity issue and was wrong to hold that H was not in principle entitled to immunity from W’s claim for financial relief pursuant to Part III of the 1984 Act. It remains to be considered whether, as the judge held, H was “permanently resident” in the UK. If he was, then it is clear that he would not be entitled to immunity since W’s claim does not arise in respect of official acts performed by H in the exercise of his functions.

THE PERMANENT RESIDENCE ISSUE The meaning of “permanently resident” 58.

Subject to the exceptions set out in Article 31(1)(a) to © of VCDR, a diplomatic agent is immune from the jurisdiction of the receiving State. Article 38 provides: “1. Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.”

59.

The permanent residence issue was addressed in the court below by reference to Article 38(1) of the VCDR. In fact, it should have been addressed by reference to Article 13 bis of the Headquarters Agreement and Article 15 of the IMO Order. But there is no material difference between the relevant parts of these provisions and Article 38(1) of the VCDR.

60.

It seems that there is no authority on the meaning of “permanently resident” from any senior court in the UK.

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61.

Estrada v Al-Juffali

Soon after becoming a party to the VCDR in 1964, the UK Government decided that the most satisfactory interpretation of the term “permanently resident” depended on asking the question whether, but for his employment with the mission, the person concerned would choose to remain in the receiving State (the so-called “but for test”). After a few years, the FCO formulated some general rules and in January 1969 a Circular Note (“the Circular”) was sent to all diplomatic missions in London by the Secretary of State. It included the following guidance: “When determining whether or not a particular member of your staff should be regarded as a permanent resident of the United Kingdom the test should normally be whether or not he would be in the United Kingdom but for the requirements of the sending State. In applying this test, I suggest that you should be guided by the following considerations: (i) The intention of the individual: a person should be regarded as permanently resident in the United Kingdom unless he is going to return to his own country as soon as his appointment in the United Kingdom ends. It is suggested that points which may be relevant to this question include the links of the individual with the State which he claims as his home, e.g. payment of taxes, participation in social security schemes, ownership of immovable property, payment of return passage by the sending State. (ii) The prospect of the individual being posted elsewhere as a career member of the service: he should be regarded as permanently resident in the United Kingdom if his appointment in the United Kingdom is likely to continue or has continued for more than five years, unless the Head of Mission states that the longer stay in the United Kingdom is a requirement of the sending State and not a result of personal considerations. (iii) Local recruitment of the individual: a person who is locally engaged is presumed to be permanently resident in the United Kingdom unless the Head of Mission concerned shows that he is going to return to his own country or to proceed to a third country immediately on the termination of his appointment in the United Kingdom; and (iv) Marital status of the individual: a woman member of the Mission who is married to a permanent resident of the United Kingdom is presumed to be herself permanently resident in the United Kingdom from the time of her marriage unless the Head of Mission shows that in addition to her satisfying the other criteria, there remains a real prospect in view of the special circumstances of her case that she will be posted as a normal career member of the service.”

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62.

Estrada v Al-Juffali

Satow’s Diplomatic Practice (6th ed) states of the Circular: “This guidance has been followed by the UK in administering privileges since 1969 and, although consultations as envisaged have sometimes taken place, it has not generally been challenged by missions in London…..The key test in the Circular was whether the individual was resident in the receiving State for a purpose unconnected with the holding of the status of membership of the mission…. A number of other countries have since 1969 drawn up practice guidelines on the meaning of ‘permanently resident in the receiving State’ which are broadly similar to those applied by the United Kingdom.” (paras 10.17 and 10.18)

63.

The judge said at para 64 that, in this international context, the intention of the propositus was highly relevant, but not determinative. It would be necessary to survey the wider picture of H’s life, both to evaluate his degree of integration into any particular place as well as to infer his intentions from the facts.

64.

Mr Pointer QC on behalf of H submits that the phrase “permanently resident” must be given its ordinary meaning. He places some reliance on what Lord Evershed MR said in Re Gape [1952] Ch 743 at p 749: “the conditions of taking up permanent residence in England was another way of saying making England your permanent home; that is to say, residing in England with the intention of continuing to reside there until you die”. That was said in relation to the construction of the phrase “permanent residence” in a will. Mr Pointer submits that the exception in Article 38 of the VCDR applies to “nationals” as well as those who are “permanently resident”. The latter should be construed eiusdem generis with the former. Like nationals, permanent residents are persons whose status vis-à-vis the receiving State makes it appropriate for the receiving State to continue to exercise jurisdiction over them notwithstanding their diplomatic status. There is nothing to suggest that the phrase “permanently resident” includes those (like H) who neither have, nor intend to obtain, any right permanently to reside in the receiving State.

65.

With reference to the Circular, Mr Pointer submits that the FCO cannot determine the true meaning of “permanently resident”. In any event, it does not address the situation of a person such as H who has always had the use of property in the UK and spent some time here, but who has never had the right, or intention, to make the UK his permanent home. Nor does it deal with the situation of an individual who has the means to maintain properties in several jurisdictions including the UK, and who chooses the UK as the place to educate his children.

66.

In my view, the Circular provides valuable guidance as to the meaning of “permanent residence”. It has the imprimatur of general international acceptance: see para 62 above. I see no basis for accepting the test put forward by Mr Pointer of whether the person has or intends to apply for the right to remain in the receiving State. That is too narrow an approach. Nor do I consider that, in order to establish permanent residence, it must be shown that the person intends to live in the country until he dies (the Re Gape test). Indeed, I did not understand Mr Pointer in the end to be contending for such an absolutist approach.

Judgment Approved by the court for handing down.

67.

Estrada v Al-Juffali

In Jimenez v IRC [2004] STC 371, Mr John Walters QC, sitting as a Special Commissioner of Income Tax said, with reference to the Circular, that he was “not surprised” that “permanently resident” means “resident for a purpose unconnected with the holding of the status of membership of a mission.” It seems to me that this may be another way of expressing the “but for” test stated in the opening paragraph of the Circular. In my view, it is a necessary condition of being “permanently resident” in a host country that the individual would be resident in that country even if he had not been a Permanent Representative or diplomatic agent. But it is not a sufficient condition, because what is required is permanent residence. Thus, it is difficult to see how an individual who (i) would be resident in a host country even if he were not appointed a Permanent Representative or diplomatic agent and yet (ii) intends to leave the host country as soon as his appointment comes to an end can be said to be permanently resident in the host country. That is why other factors, such as those identified in the Circular, should be borne in mind when applying the “but for” test. It is clear from the Circular that what is required is a degree of permanence, not a settled intention to reside in the host country until death.

The facts relating to permanent residence 68.

By way of evidence, the judge had before him two statements filed by W. By contrast, notwithstanding that it was his application to strike out W’s Part III claim, H failed to file a statement. He filed a number of statements made by his solicitor, Sandra Davis, but largely relied on a statement filed by Turki Alammari, his office manager. Mr Alammari is responsible for H’s personal and business schedule and maintains inter alia details of his international movements.

69.

In the light of H’s challenge to the findings of fact made by the judge, it is necessary to examine the statements and supporting documentation in order to consider the submission that the judge drew inferences of fact which were not open to him and should not therefore have informed the outcome of the case. Much of the evidence is found in the largely unchallenged statements filed by W.

70.

H was born in the Lebanon in 1955. He is a Saudi national and domiciled in Saudi Arabia. He is a member of a large Saudi family of immeasurable wealth. The family has, throughout his life, had a close connection with the UK. In particular, a substantial property, Bishopsgate House, near Windsor Great Park was bought many years ago by H’s father as a family estate for use in summer holidays. The family also had a flat in London. For a time H attended Oxford University before going on to university in the US.

71.

For many years H has had a visa which enables him to spend 180 days in the UK each year without compromising his non-resident tax status. In common with men of his wealth and background, he crosses and re-crosses the world, largely by private jet, staying in properties in various countries owned by, or on his behalf, through elaborate financial structures. The figures produced by Mr Alammari show the division of H’s time over recent years to have been largely spent between Saudi Arabia, Switzerland and the UK; the majority of his time over the period being spent in Switzerland closely followed by Saudi Arabia.

72.

H has been married three times. His first marriage in 1980, was to Basma Sulaiman, a Saudi national. There were three children by that marriage, M, D & H; each of whom

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(in common with all H’s children) were born at the Portland Hospital in London. It is common ground that at least the eldest of those children has a British passport. 73.

Critical to his ultimate finding that H was permanently resident in the UK, the judge found in relation to this marriage (as with each of his marriages) that ‘the family home was based in the UK’ and that the children were educated in England and speak English.

74.

Mr Pointer submits that this finding of fact was not open to the judge as it goes further than the evidence of Mr Alammari who said: “M, D and H have at times studied in the UK and Dr Juffali did travel to the United Kingdom to visit them during their studies.” Mr Alammari did not however address, obliquely or at all, the issue of where the children lived during their childhood, the period with which the judge was concerned.

75.

The judge had W’s written evidence that, when she first met H, he was living in a property at Wilton Crescent in London, SW1. Her statement does not specifically say that also living at that address was H’s first wife, to whom he was still married. That this was the case is supported by the report of Sulaiman v Juffali [2002] 1 FLR 479, a decision of Munby J on H’s challenge to the court’s jurisdiction in relation to the divorce from his first wife. The report quotes from the divorce petition filed by Ms Sulaiman on 22 June 2001; in the petition she stated that she had last lived with H as man and wife at an address in London, and that she was habitually resident in the UK.

76.

The hearing before Munby J had held over the issue of Ms Sulaiman’s habitual residence which was being challenged by H. But W gives evidence in her statement in these proceedings that ultimately H and his first wife were divorced by way of English divorce petition in 2001. That outcome can only have been on the basis that Ms Sulaiman had been habitually resident in the UK for a period of 12 months at the time the petition was filed.

77.

Mr Pointer urges caution saying that putting together the pieces of the jigsaw in such a manner can lead to a misinterpretation of the facts and that the judge had been wrong to conclude that the evidence, looked at as a whole, could lead him to a finding that H’s first family had been based in the UK.

78.

In my judgment it was open to the judge to reach the conclusion that the family home of H’s first family was the UK (para 65), particularly given the absence of any evidence from H or of any real assistance from Mr Alammari.

79.

W was H’s second wife. She was born in 1962 in California and is a US citizen. She came to the UK on 25 June 1988 and has lived here ever since, obtaining indefinite leave to remain in this country in the mid-1990s. H and W started seeing each other in 2001 and were married in Dubai on 18 September 2001. Their daughter, S, was born on 30 October 2002. W’s evidence is that in the early years of the marriage, the family home was at 50 Hyde Park Gate, a property owned or leased by H. Since 2005 H has had the use of Bishopsgate House as a result of his beneficial interest in the family trust which indirectly owns it. W (and she is not contradicted by Mr

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Alammari) says that this property became the family home for the duration of the marriage with S attending then, as now, a preparatory school in Surrey. The mother and S continue to live at the property. During the course of the marriage, H completed a PhD in neurology at University College, a property was acquired in Devon for holidays and the family had a flat in London. 80.

In February 2012, H contracted his third (on this occasion, polygamous) marriage to Loujain Adada in Beirut.

81.

Shortly after his third marriage, H’s only son M died. In the aftermath of M’s death there was a period of reconciliation between H and W, which came to end in June 2013. Following this final breakdown of the marriage, W issued (but did not serve) a divorce petition on 13 August 2013. In the same month H rented an apartment at 1 Hyde Park Gate for a period of 12 months.

82.

In April 2014, H acquired the use of (again through a company/trust structure) a property in Walton Street, London which was bought for £41million. This property, W says, is H’s matrimonial home. His third wife and the child of that marriage T (born 1 November 2014) live there and S has her own substantial suite of rooms for when she is visiting her father.

83.

On 14 April 2014, in the same month as the property at Walton Street was bought, H was appointed as the Permanent Representative of St Lucia (a country with which he had had, until that time, no connection) to the IMO.

84.

In respect of the current living arrangements of H with his third wife, Mr Alammari says in his statement that the “current family unit” divide their time between Jeddah and the house bought in April 2014 in Walton Street, which he refers to as H’s “diplomatic residence”.

85.

On 17 September 2014, H and W were divorced by Talaq in Jeddah, a divorce which is recognised in England.

The judge’s findings and assessment 86.

At para 51 of his judgment, the judge identified the following features as relevant: “(i) H is an international businessman with a peripatetic existence throughout the world; (ii) H has the use of properties in various countries, including e.g. UK, Saudi Arabia; (iii) H frequently spends protracted periods in the UK; (iv) H has close family members in Saudi Arabia including his mother and grandmother whom he visits regularly; (v) The only property which is vested in H’s own name (the remainder being subject to various trusts) is in Saudi Arabia. It is, according to the evidence, a substantial property located on a 13,000 m² plot;

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(vi) H is a Saudi national, domiciled in Saudi Arabia; (vii) H’s UK visa permits him to remain in the UK for no more than 180 days per year but there is no restriction on the number of visits to the UK or any requirement that a specified time must elapse between visits; (viii) H has now been married three times. There are children from each of the marriages. The family home in each marriage has been in the UK and all the children have (so far) been brought up in the UK; (ix) W is 53, she has lived permanently in the UK since 1989, including throughout the marriage to H i.e. since 2001. There is no dispute that she is ‘habitually resident’ in this jurisdiction. She has been granted indefinite leave to remain; (x) S, the couple’s child, now aged 13 years has lived her entire life in this jurisdiction. (xi) Bishopsgate, a one hundred million pound property in Windsor Great Park has been the family home throughout the marriage.” 87.

He continued: “65. In my survey of the background of H’s life (at para 51, above) I have endeavoured to identify key facts which point to permanent residence being established either in Saudi Arabia or in the UK. The fact that H does not enjoy leave to remain in the UK and that he is only permitted to visit for 180 days per year seems to drag the conclusion towards Saudi Arabia. Mr Pointer’s team have spent considerable time and effort drawing up a table setting out the number of nights H has spent in the UK on a yearly basis since 2009. That data has been further refined to include the average duration of trips to the UK and also the unbroken sequence of days spent here. This is helpful so far as it goes but, in my view, a qualitative rather than quantitative assessment is likely to illuminate intention more accurately. Of all the matters identified at para 50 one is, to my mind, magnetic in its attraction. H has been married three times. On each occasion the marriage produced children. For each reconstituted family unit the family home was based in the UK. W herself is habitually resident in the UK. The children of the first two marriages have all been educated here and, inevitably, all speak English. The youngest child, now from the third marriage, is pre-school age. There are three homes in the UK. 66. Where a man chooses to live with his wife and children, and I emphasise the element of choice, says a great deal, to my

Estrada v Al-Juffali

Judgment Approved by the court for handing down.

Estrada v Al-Juffali

mind, about where he intends his home to be. When the circumstances of his life cause him to repeat that same decision throughout three marriages, it seems to me to signal an intention which is ‘unlimited in period’, to adopt Langton J’s phrase and therefore to qualify as permanent. I very much agree with Mr Pointer that both the case law and the Circular require me to give significant weight to H’s intentions but I have, on the facts of this case, come to a different conclusion from that contended by Mr Pointer. The evidence points very strongly, in my view, to establishing that these were the arrangements before H’s appointment and, on the basis that past behaviour is often a reliable predictor of future intention, the status quo was likely to continue. On this basis H also fails the ‘but for’ test in Jiminez v IRC (see para 48 above). By way of completeness I should add that I have not found it necessary to deploy either Article 6 of the ECHR or section 3 of the HRA to construe the meaning of permanent residence. Conclusion on the permanent residence issue 88.

In my view, the judge did not misdirect himself in law as to the correct approach to this issue. Broadly speaking, he directed himself correctly and in accordance with the Circular. In the end, the main thrust of Mr Pointer’s challenge was to the judge’s evaluation of the facts. In order to succeed in this challenge, he must persuade us that the judge’s conclusions on the facts were not open to him. As Mr Owen QC points out, this is a high hurdle for H to surmount. He has to show that the judge exceeded “the generous ambit within which reasonable disagreement about the conclusion to be drawn from the evidence is possible”: per Ward LJ in Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642; [2003] 1 WLR 577 at para 197. This test applies to all findings of fact. Importantly for present purposes, at para 16, Clarke LJ said the following in respect of evaluative assessments: “Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way.”

89.

I have already rejected Mr Pointer’s submission that the intention to make the UK one’s permanent home cannot be inferred in circumstances where the evidence demonstrates neither a right permanently to reside in the UK nor any intention to obtain such a right. He says that the judge was wrong to find that H intended to reside in the UK for an unlimited period. He relies in particular on the fact that (i) H is a Saudi national, domiciled in Saudi Arabia; (ii) Saudi Arabia is the only State in which H has an indefinite right to remain; (iii) H is not and never has been resident in the UK for tax purposes; he has no assets in the UK that give rise to taxable income; (iv) H’s UK visa permits him to remain in the UK for no more than 180 days per year; and

Judgment Approved by the court for handing down.

Estrada v Al-Juffali

(v) prior to his appointment, he spent much less than half the year in the UK (in 2011, 38 nights and in 2013, 110 nights). 90.

As Mr Pointer says, the judge identified one matter as being “magnetic in its attraction”. This is that H had been married three times. On each occasion the marriage had produced children. For each reconstituted family unit, the family home was based in the UK. The children of the first two marriages had all been educated here and speak English. At para 66, he said: “where a man chooses to live with his wife and children… says a great deal… about where he intends his home to be”. Mr Pointer submits that this conclusion (i) is wholly unreasoned, (ii) appears to be based on a misunderstanding of the evidence and (iii) places far greater weight than could properly be placed on the fact that a part of the education of each of H’s children took place in the UK.

91.

Having considered the evidence that was available to the judge, there was in my view, ample material from which to conclude that H has chosen, over a period of in excess of 35 years and three marriages, to maintain his family base in the UK. That conclusion could properly provide an important part of the factual background against which the judge would consider whether H was or was not a permanent resident in the UK. More generally, H has not surmounted the high hurdle that he faces when challenging a factual assessment of this kind.

OVERALL CONCLUSION 92.

For the reasons that I have given, I consider that the judge was wrong to hold that H is not entitled in principle to immunity from W’s claim. But the judge was entitled to conclude on the facts that H is not entitled to immunity because he is permanently resident in the UK and the claim does not relate to any official acts performed by H in the exercise of his functions. I would dismiss the appeal. It is, therefore, unnecessary to consider the issues raised by the Respondent’s Notice.

Lady Justice King: 93.

I agree.

Lord Justice Hamblen: 94.

I also agree.

ase No: C5/2015/1306 Neutral Citation Number: [2016] EWCA Civ 242 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 3 March 2016 Before:

LORD JUSTICE SALES ——————–Between:

AO (NIGERIA)

Applicant

- and SECRETARY OF STATE FOR THE HOME DEPARTMENT ——————–(DAR Transcript of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 Official Shorthand Writers to the Court) ——————–Mrs Polimac appeared on behalf of the Applicant The Respondent did not attend and was not represented ——————–Judgment (Approved)

Respondent

LORD JUSTICE SALES:

1.

This is a renewed oral application for permission to appeal in an immigration case. he appeal would be a second appeal.

2.

The appellant came to the United Kingdom on a visitor’s visa in 2006 and was joined then by his wife and their then children, also on visitors’ visas. The husband and wife overstayed their visitors’ visas and remained in the country unlawfully, having further children when they were here.

3.

The Secretary of State’s decision was that they were not entitled to leave to remain. They appealed to the First Tier Tribunal. The reasoning of the First Tier Tribunal was to focus on their son, M, who had, at the time of the decision, been present in the United Kingdom, albeit without leave, for a number of years. He was a person under the age of 18 years and had lived continuously in the United Kingdom for at least seven years, and therefore fell within the scope of paragraph 276ADE(iv) of the Immigration Rules. However, there is a proviso to that provision, which is that an entitlement to remain under it depends upon it being shown that it would be unreasonable for the child to be returned to Nigeria.

4.

The First Tier Tribunal judge held that removing the appellant would interfere with his family life with M (see paragraph 41) and that it would be unreasonable to expect M to leave the United Kingdom to go and live in Nigeria, with which he has limited ties (see paragraph 39). The First Tier Tribunal judge concluded that based on the idea that M

has an entitlement to remain in the United Kingdom, it would be disproportionate to remove the appellant, his father.

5.

The case went on appeal to the Upper Tribunal. The Upper Tribunal held that there had been an error of law in the assessment made by the First Tier Tribunal. At paragraph 29 the Upper Tribunal judge said this:

“Although the judge heard this matter on 23 July, he did not promulgate his determination until October, by which time the Immigration Act 2014 had remained in the 2002 acts by the insertion of Section 117A,B,C, and D. It was incumbent upon the judge to consider this matter, there being no transitional provisions and the section applying immediately. In the circumstances, the judge should have either brought the matter back to court or at least invited written submissions from the parties on the issue of whether the new law made any significant difference. “At the date of the hearing on 23 July 2014, the judge was required to weigh in the balance the fact that on the one hand none of the appellants had leave and were seeking to remain outside the rules, and on the other hand they would need to show compelling, compassionate circumstances as to why their claim should be admitted outside the rules. The judge had focused on the best interest of M and accepted that it was unreasonable to expect M to leave the United Kingdom. That was not to carry out the balancing exercise correctly and the determination gave the impression that the judge regarded M as a trump card. It was difficult to see how the judge had arrived at the conclusion that M’s interest in continuing his education made it unreasonable to expect him to return with the rest of his family to Nigeria.”

6.

On the footing that the First Tier Tribunal had erred in its approach, the Upper Tribunal then proceeded to remake the decision, this time dismissing the appellant’s appeal. The appellant seeks to apply for permission to appeal to this court. Such permission was refused by Underhill LJ on the papers. So far as concerns the ground relevant for present purposes, namely Ground 1, Underhill LJ said this:

“1. Despite the clear and helpful presentation of the grounds and skeleton argument, I do not believe an appeal would have any real prospect of success for the following reasons. “2. Ground 1: If the UT had overturned the decision of the FTT on the basis only of the failure of the FFTJ explicitly to apply Part 5A of the 2002 Act, I agree that would at least arguably have been wrong. The applicant has not challenged the UT’s conclusion that Part 5A had to be considered, even though it had only come into force after the conclusion of the oral hearing. Odd though the situation is, he is probably right not to do so. On the face of it, Section 117B merely restates with the added force of statute the approach already approved in the case law, and from which the FFTJ did not, on the face of it, depart. However, that was not the only basis of his decision. As I read paragraph 29 of his determination, and indeed as the applicant reads it (see para 1 of his skeleton) the UTJ also held independently of that point that the FTTJ had made a substantive error of law in treating M’s interest as a trump card, and I believe that he was plainly right so to hold.”

7.

On the present application, Mrs Polimac for the applicant focuses her argument on the contention that the Upper Tribunal was wrong to find that there was any error of law in the approach by the First Tier Tribunal judge. If she is unsuccessful in showing that there is some arguable error by the Upper Tribunal on that basis, she does not seek to contend that the exercise of discretion by the Upper Tribunal when it remade the decision itself is something which could be impugned on an appeal.

8.

The essential question then is that addressed by Underhill LJ as to whether it can be said that the First Tier Tribunal judge erred in his approach. In my view, there is no real prospect of success on an appeal in this case of showing that the Upper Tribunal judge was wrong to proceed on the basis that there had been an error of law by the First Tier Tribunal judge in relation to his assessment regarding the position of M. Quite simply, the First Tier Tribunal judge wholly failed to assess what should have been the critical counterfactual situation against which to have made the judgment whether it would be unreasonable for M to be returned to Nigeria. By treating his position

independently of the family, the judge did not consider what would be the practical effect for M if not just himself but the whole family were removed back to Nigeria, which was the relevant critical counterfactual position that he should have considered. That was an error of law and the Upper Tribunal judge was correct to find that it was appropriate for him to set aside the First Tier Tribunal decision and to remake the decision himself. Accordingly, I consider that there is no real prospect of success for the appellant in maintaining that there was an absence of an error of law on the part of the First Tier Tribunal.

9.

So far as concerns the Upper Tribunal’s assessment of the position, I am in agreement with Underhill LJ’s reasoning. He correctly considered that on a proper and fair reading of paragraph 29 of the judgment of the Upper Tribunal, this was the substance of the point being made by the Upper Tribunal judge when he referred to the First Tier Tribunal having regarded M as a trump card without carrying out properly the relevant balancing exercise to be undertaken to assess whether it would be reasonable to require him to be removed to Nigeria or not.

10.

In my view, there is no real prospect of success in persuading this court that the Upper Tribunal judge erred in his assessment of the unlawfulness on the part of the First Tier Tribunal. Accordingly, I do not consider this is a case where there is a real prospect of success on appeal. Nor do I consider that there is any other compelling reason to grant permission to appeal.

11.

Still less do I consider that this is a case that passes the second appeal test which is applicable here. I do not consider that the appeal would raise an important point of

principle or practice and nor is there some other compelling reason for the Court of Appeal to hear it, pursuant to the second appeal test.

12.

For these reasons, this application is dismissed.

Order: Application refused

Case No: C5/2015/1279 Neutral Citation Number: [2016] EWCA Civ 259 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 18 February 2016 Before: LORD JUSTICE SALES

——————–AJ (GAMBIA) Applicant - and SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent

——————–DAR Transcript of WordWave International Ltd trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 704 1424 Web: www.DTIGlobal.com Email: TTP@dtiglobal.eu (Official Shorthand Writers to the Court) ——————–The Applicant appeared in person assisted by an interpreter The Respondent did not attend and was not represented ——————–Judgment (Approved)

Lord Justice Sales: 1.

This is a renewed oral application for permission to appeal.

2.

The First-tier Tribunal considered the appellant’s application for asylum in a decision dated 26 August 2014. The Tribunal examined the evidence as to whether the appellant was married to a Colonel Cham who had been involved in a coup attempt in the Gambia, which the appellant maintained was the basis on which she would face a risk of ill-treatment if she was returned to the Gambia. The Tribunal judge concluded: “In summary, I find no credible or reliable evidence to suggest that the appellant was married to Colonel Cham or was linked as sister to the ex-accountant general of the Gambia.”

3.

On that basis the Tribunal concluded that the appellant was not in need of humanitarian protection. The Tribunal concluded that there was no other basis, including under Article 8, on which the appellant would have an entitlement to remain in the United Kingdom.

4.

The Upper Tribunal in a decision promulgated on 30 January 2015 rejected the appellant’s appeal. The Upper Tribunal found that there was a proper basis in the evidence for the findings of fact made by the First-tier Tribunal.

5.

The appellant has appeared before me today assisted by an interpreter to contend that she should be granted permission to appeal. The thrust of the points that she has made today is that the First-tier Tribunal was wrong to make the findings it did regarding her marriage to Colonel Cham.

6.

When Longmore LJ considered the appellant’s application for permission to appeal on the papers he said: “Permission to appeal refused. First Tier Tribunal Judge Lever was right to consider the evidence of marriage to be important and to be very weak. In any event that was not the only element in his decision, which was overall carefully considered and is not susceptible to a second appeal.”

7.

The test which I have to apply is the second appeals test. As I have explained in the course of the hearing to the appellant, I should not give permission unless I consider that the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it. In my view the decision of the First-tier Tribunal was a proper and legitimate decision for that Tribunal to make on the basis of the evidence it heard and as explained in the reasons it gave. I do not consider that there is any real prospect of success on appeal. The appeal would give rise to no important of principle or practice since it turns essentially on assessment of the facts.

8.

There is no other compelling reason for the Court of Appeal to hear the appeal. I agree with the reasons given by Longmore LJ. Accordingly this application is dismissed.

Order: Application refused

Case No. C5/2015/1407 Neutral Citation Number: [2016] EWCA Civ 260 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) Royal Courts of Justice Strand London WC2A 2LL Date: Wednesday, 17 February 2016 B e f o r e: LORD JUSTICE SALES


Between: VP (SRI LANKA) Applicant v SECRETARY OF STATE FOR THE HOME DEPARTMENT


Respondent

DAR Transcript of WordWave International Limited trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court)


Ms N Mallick (instructed by Kesar & Co Solicitors) appeared on behalf of the Applicant The Respondent did not appear and was not represented


J U D G M E N T (Approved)

LORD JUSTICE SALES: 1. This is a renewed oral application for permission to appeal in a second appeal case. The test which I have to apply is the second appeals test, which is to the effect that I should not give permission unless I consider that the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it.

2. The application for permission to appeal was refused by Treacy LJ on the papers. He said this: “The Upper Tribunal judge made some factual findings in your favour, but that did not mean that he was bound to accept the whole of your account. Where he rejected your account, and he did so in a number of significant respects, he provided adequate reasons for doing so. There is sufficient reasoning to sustain the findings in relation to the applicant’s UK activities, the circumstances underlying his detention and torture in Sri Lanka, and the question of the alleged confession. I do not consider that failure to address involvement with the UN inquiry is material where, on the evidence, there is no more than an arrangement that the applicant will cooperate with or contribute to it. The judge clearly had in mind the case of GJ and I do not consider that it is shown that there was a failure to apply it. This is a second appeal and I do not consider that the test in part 52.13 is satisfied.”

3. On the present application, Ms Mallick, who appears for the appellant, was asked by me for her submissions in relation to the application of the second appeals test. I do not consider that she identified any important point of principle or practice to which this case gives rise. It is clear that the Upper Tribunal judge properly directed himself by reference to the relevant country guidance case, GJ and Others (post civil war: returnees) (Sri Lanka) CG [2013] UKUT 00319 (IAC).

4. However, in view of the contention that the appellant would be at risk of torture if returned to Sri Lanka, I have examined in greater detail than would otherwise be the case for a second appeal whether it can be said that there is some other compelling reason for the Court of Appeal to take this appeal.

5. Ms Mallick relies on two principal grounds in the hearing before me today. First, she refers to the account given by the appellant of torture to which he was subjected in 2009, related at paragraph 11 of the decision, and the judge’s acceptance and finding that the appellant was tortured during the period that he was detained. In the appellant’s account, he says that he was tortured in order to obtain a signed confession of involvement in the LTTE from him. However, the judge found at paragraph 68 that it was unlikely that he had in fact signed a confession letter as claimed. Ms Mallick submits that this was an irrational conclusion by the judge. The judge ought to have accepted that the appellant had indeed signed a confession letter in view of his finding that he was tortured and the appellant’s account of why he was tortured.

6. I do not consider that, even applying the ordinary test for a first appeal, this would be a matter giving rise to a real prospect of success upon appeal. The overall picture was that the judge believed some parts of the appellant’s account given to him but disbelieved other parts of his account. In particular, the judge found that the appellant had not been a credible witness in relation to the account he gave of the way in which he said he escaped from detention (see paragraph 41 in particular). At paragraph 42, the judge found that the true explanation for this was that the appellant was of no lasting concern to the authorities. The judge, in light of his overall assessment of the evidence of the

appellant, was entitled to make the findings which he did at paragraph 42 and at paragraph 68. There is no real prospect of success on an appeal that the appellant could persuade this court that it was irrational for the judge to make those findings, in view of the assessment of the evidence before him.

7. The second matter pressed upon me is that it is said that the judge has failed properly to consider the effect of sur place activities of the appellant in the form of cooperation with the UN inquiry into the behaviour of the Sri Lankan authorities and the prospect that he would give evidence to that inquiry about the circumstances in which he was tortured by the Sri Lankan authorities. The judge was aware of the plan for the appellant to help in this inquiry (see paragraph 18). However, the judge’s overall assessment (see paragraph 38) is that it is very unlikely that the appellant would have a political profile which makes him of adverse interest to the Sri Lankan authorities, including by reference to the appellant’s activities since his arrival in the United Kingdom.

8. In my view, it is clear that that finding takes into account the information available to the judge about the proposed participation by the appellant in the UN inquiry. In view of the judge’s overall assessment of the evidence and situation of the appellant, I do not consider that it can be said that his conclusion in that regard was irrational or that it improperly left out of account the evidence that had been put before the judge regarding the proposed participation of the appellant in the UN inquiry. It may be observed that it is highly unlikely that the UN inquiry would take steps that would expose the appellant to detrimental consequences in Sri Lanka as a result of his participation in it. The overall point made by the judge at paragraph 38 is that the appellant had no strongly held

political beliefs and there was no reason why the previous lack of interest of the Sri Lankan authorities, as referred to at paragraph 42, should be displaced by anything that the appellant has done sur place.

9. Accordingly, in relation to this ground as well, I do not consider that there is a real prospect of success for the appellant upon appeal.

10. Since in my view the appellant does not satisfy the ordinary first appeal test for permission to appeal, still less can he satisfy the more stringent second appeal test. For these reasons, and in agreement with the reasons given by Treacy LJ, this application is dismissed.

Case No: C5/2014/3950 Neutral Citation Number: [2016] EWCA Civ 262 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 18 February 2016 Before: LORD JUSTICE SALES ——————–AM (JAMAICA) Applicant - and SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent

——————–DAR Transcript of WordWave International Ltd trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 704 1424 Web: www.DTIGlobal.com Email: TTP@dtiglobal.eu (Official Shorthand Writers to the Court) ——————–Mr David Chirico (instructed by Wilson Solicitors LLP) appeared on behalf of the Applicant The Respondent did not attend and was not represented ——————–Judgment (Approved)

Lord Justice Sales: 1.

This is a renewed oral application for permission to appeal in a second appeal case. Accordingly the test I have to apply is that I should not give permission unless I consider that the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it. Treacy LJ refused permission on the papers as he did not consider the second appeal test was met.

2.

On the renewed application today Mr Chirico for the appellant pursues three grounds of appeal. The first (ground 2 as listed in the notice of appeal) is that he maintains that the First-tier Tribunal, although it identified the best interests of certain children with whom the appellant was involved, did not treat those best interests as a primary consideration as required by cases such as ZH (Tanzania) [2011] UKSC 4.

3.

In my view this does not give rise to an important point of principle or practice. The relevant legal principles are very well established indeed and it is not necessary for this case to proceed to appeal for them to be looked again. Mr Chirico’s submission was that there is an irreducible formal requirement that a tribunal refer to the relevant primary consideration test on the face of its decision. However, I do not consider there is a real prospect of success in an appeal arguing along those lines. In my view it is clear that the relevant principles which govern interpretation of reasons given by the First-tier Tribunal are the same general reasons that apply to consideration of any tribunal decision. It cannot be said that there is an irreducible minimum. What is required is that a superior tribunal or court look to see if there are sufficient indications that a tribunal has misdirected itself. That is precisely what the Upper Tribunal did in this case (see in particular paragraphs 11 to 12). Its conclusion was that the FTT had

not misdirected itself, on a proper interpretation of its reasons in the round. As I have indicated, I do not consider that this ground of appeal gives rise to an important point of principle of practice.

4.

Next, Mr Chirico relies on ground 3 in the notice of appeal. He submits that it is arguable that the FTT gave improper weight to the fact of the offending by the appellant, who had been convicted of robbery in 2010 and sentenced to four years’ imprisonment. Against this is a background of improvement where Mr Chirico submits the appellant has become rehabilitated.

5.

The Upper Tribunal dealt with this ground at paragraphs 13 to 16 of its decision. It noted that the FTT gave credit to the appellant for the fact that he was now assessed to pose a low risk of reoffending and that he was continuing his rehabilitation, but it also noted that as recorded in paragraph 27 of its determination the FTT had observed that “Mr Chirico quite correctly accepted there is a strong public interest in removing foreign citizens convicted of serious offences even where there is little or no evidence of future risk to the general public”.

6.

That position, namely that a Tribunal is entitled in a case like this to take into account a background of serious offending by a person who faces deportation when weighing the position under Article 8 is in my view uncontroversial and well-established, and will remain so even if the precise weight to be attached to that factor is to be the subject of examination by the Supreme Court in the case of HA (Iraq) [2014] EWCA Civ 1304, which I am informed has been argued recently, and whatever any realistically likely outcome might be in that case.

7.

Accordingly, so far as ground 3 is concerned, the case is really one of an application of acknowledged relevant factors in the context of the particular facts of the case. Again, I do not consider that this gives rise to an important point of principle or practice which is likely to be material in the circumstances of the present case, in the sense that there would be a wider general public interest in exploration of the operation of the weight to be given to the fact of serious offending by an immigrant through the grant of permission to appeal to this court in this particular case. It is unnecessary for this court to give permission to appeal simply for the purposes of examining the operation of the law in this area in general terms. That is going to be a matter for exploration by the Supreme Court and it is unnecessary for this court to give permission to appeal simply to explore that aspect of the law.

8.

The third ground relied upon by Mr Chirico is ground 4 in the notice of appeal. This again is very much related to the question of the weight which the Tribunal was entitled to attach to the fact of the serious offending by the appellant in this case when weighing matters for the purposes of Article 8. For reasons similar to those in relation to the second matter argued today, ground 3 in the notice of appeal, I consider that this is essentially a matter of application to the particular facts of this case of acknowledged relevant considerations by the First-tier Tribunal. I do not consider that this is a ground which gives rise to an important point of principle or practice.

9.

Standing back from those matters, I have considered whether there is some other compelling reason for this court to grant permission to appeal, particularly against the possibility that the Supreme Court may effect some adjustment in the weight to be given to the fact of serious offending in the past in the course of its consideration of the

appeal in HA (Iraq). It does not appear to me from the Statement of Facts and Issues in that case that there is any real prospect that the Supreme Court will say that significant weight cannot be given to the fact of serious offending by a foreign person while in the United Kingdom when conducting an Article 8 balancing exercise. That being so, I do not consider, looking at the particular facts of this case, taking into account the serious offending by the appellant and weighing it against the evidence of his relationship with his mother, his nephew, his sister and his current partner/girlfriend’s son, that this is a case where it can be said that there would be any apparent injustice if the appellant were removed. The evidence given by the appellant in relation to the three children I have mentioned does not suggest that he occupies a full parental role in relation to any of them. In my view, the First-tier Tribunal gave proper weight to their interests when taking them into account and balancing them against the seriousness of the appellant’s offending.

10.

Therefore, neither on the ‘important point of principle or practice’ limb of the second appeals test nor on the ‘other compelling reason’ limb of that test do I consider that it is appropriate to grant permission to appeal in this case.

11.

Accordingly, in agreement with Treacy LJ, I reject this application.

Order: Application refused

Case No: C2/2014/3622 Neutral Citation Number: [2016] EWCA Civ 264 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 17 February 2016 B e f o r e: LORD JUSTICE TOMLINSON ——————–Between: MEHMETI Applicant v SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent ——————–DAR Transcript of the Stenograph Notes of WordWave International Limited A DTI Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) ——————–Mr B Bedford appeared on behalf of the Applicant The Respondent was not present and was not represented ——————–J U D G M E N T (Approved)

1. LORD JUSTICE TOMLINSON: This is a renewed application for permission to appeal against a decision of Upper Tribunal Judge Rintoul made on 10 October 2014. Judge Rintoul on that occasion refused permission to apply for judicial review of a decision of the Secretary of State dated 14 February 2013. 2. The Applicant was born on 20 March 1979 and is a citizen of Kosovo. He travelled to the United Kingdom overland, arriving in 1999 where upon he claimed asylum. As Judge Rintoul points out in his judgment, it appears that that application was refused on 19 June 2000. It would seem that there was a second supplementary refusal in 2002 and indeed an appeal against a refusal of asylum on 16 April 2003. 3. After all that, the Applicant made representations through his representatives requesting consideration on human rights grounds. He challenged the Secretary of State’s failure to review his case under legacy provisions. That, it would seem, is how the proceedings began. But as I have indicated, on 14 February 2013 his application was rejected. It is against that refusal of leave to remain that judicial review is sought. 4. Matters have developed during the course of the proceedings, just as they had developed during the long course of this Applicant’s residence within the United Kingdom. It is, therefore, idle to look at the grounds of appeal as they stand, but Mr Becket Bedford, who has appeared for the Applicant this morning, has, with his customary clarity, explained to me that there are two live points on the basis of which he seeks permission to appeal. 5. The first is that he points out that on 13 August 2014, that is to say, therefore, two months before the matter came before Judge Rintoul, Upper Tribunal Judge Gill made a direction that within five days of the date of that order the Respondent Secretary of State was to serve on the Applicant and the tribunal a copy of the decisions made on 19 June 2000 and 6 November 2002.

6. The reason for that, as I understand it, was, as Mr Bedford points out, that the refusal of application for asylum in 2000 cannot by definition have taken into account human rights grounds as that decision preceded the coming into force of the Human Rights Act. As he acknowledges, the supplementary letter in November 2002 would potentially have dealt with the human rights aspect as it may have stood at that time, but he submits that it is unclear whether the Applicant received at that time a formal letter, normally a removal directions or a removal letter, which would have advised him that he had a right of appeal on human rights grounds. 7. The significance of that is that the 2013 decision is couched in terms of whether the representations made in 2010 were to be regarded as a fresh claim rendering them subject to the procedure dealt with in paragraph 353 of the Immigration Rules, whereas if there had been no previous decision then what the Secretary of State was doing in February 2013 would have been making a first or initial decision in relation to human rights matters which would have generated an automatic right of appeal. 8. Judge Rintoul dealt with this matter at paragraph 5 of his judgment. He says this: i. “Dealing first with the Pardeepan point, whilst this is correct that there are only now produced two letters, one dated 19 June 2000 and one dated 6 November 2002, the former deals solely with asylum. It is not clear from that letter that any notice of decision was ever served which would have given rise to an appeal which was then under section 8 of the 1993 Act. The letter of 6 November 2002 is, however, more helpful. It refers to the inclusion of a one stop notice. It also references to a notice of appeal and says that they should be returned together with the reasons for appeal and the notice of decision. I consider that this is indicative that it is this decision and notice which gave rise to the appeal, which it appears took place and which was dismissed. I am not satisfied that it is arguable on the basis of the material before me that this did not occur and the appeal did not take place taking into account Article 8. On that basis, I consider that that ground is not arguable.”

9. Mr Bedford points out that notwithstanding the manner in which the judge dealt with that point, there has been no explanation from the Secretary of State for the failure to produce the decisions of 19 June 2000 and 6 November 2002. I of course accept that that is the case, but it seems to me that it is likely that as a result of the passage of time those decisions simply cannot now be found. 10. In any event, as it seems to me, the judge has essentially dealt with this as a matter of fact. He has drawn the inferences, which seem to be irresistible, from the letter of 6 November 2002 which, whilst it may not have been the actual letter conveying the decision, nonetheless gave a clear indication that there was a right of appeal which indeed appears to have been pursued. That, as it seems to me, is a finding of fact by Judge Rintoul and that really is the end of the matter. 11. The second point on which Mr Bedford seeks permission to appeal is that he says that the human rights aspect of this application has never really been properly considered by the Secretary of State in that there should have been a proper balancing exercise taking into account proportionality. He submits that what is to be found in the letter of 14 February 2013 is not adequate in that in part it is a consideration of Article 8 considerations within the ambit of the rule and in particular rule 276ADE. Then insofar as there is a consideration of exceptional circumstances under paragraph 353B, that is an inadequate exercise in that it does not properly balance interests of proportionality. 12. He also points to the fact that this Applicant has now been in the country for a very long time. He was relying on the legacy argument which, had it been a good point, would have entitled him to remain after I think five or six years, but now of course it is accepted that he will not achieve that entitlement until he has been here for 20 years. 13. Mr Bedford also points to the fact that it took some three years for the representations,

which were first made in August 2010, to be considered, although I note that those were supplemented by further submissions in August 2011 and in May 2012. 14. The difficulty with those arguments, as it seems to me, is that it is plain that one reason why this has all taken so long is because this Applicant simply failed to maintain contact with the Home Office or Border Agency. He failed to appear for his appeal hearing on 2 April 2003 against the refusal of his asylum claim and he subsequently failed to maintain contact. On 27 April 2010 the Border Agency wrote to those who were thought to be his representatives, Ben Hoare Bell solicitors, and received a reply of 4 May 2010 confirming that they were no longer representing the Applicant and had not been doing so since 2003. 15. The current application and the applications which were considered by the Secretary of State are not supported by any material at all which would give rise to a plausible claim under Article 8. As Mr Bedford puts it with his customary frankness, the human rights claim has not been fleshed out. The evidence upon which it is based for current purposes is at page 122 of the bundle and it merely states that, “Our client has lived in the UK continuously for 11 years”. That is so, but of course for the entirety of that time his presence here has been precarious. 16. There has been no attempt made since last year to put forward any basis upon which a human rights claim could succeed. Whilst I understand and appreciate that this Applicant was relying on the legacy point, it was in February last year, as his advisers will have well appreciated, that that point became unavailable. There has, therefore, been a period of a year during which some evidence could have been proffered in support of this application. 17. Similarly, well over a year has elapsed since the decision of Judge Rintoul in the Upper

Tribunal and nothing has been put forward which would give any indication that a human rights claim has any prospect of success. 18. As has been made clear in recent decisions, in particular Singh and the case of SS (Congo), it is not necessary for detailed consideration to be given to human rights aspects in circumstances where there is simply no material upon the basis of which a right to remain on that ground could be made out. 19. Whilst, therefore, I am grateful to Mr Bedford for explaining the basis upon which this application has been pursued, it seems to me that at the end of the day a reliance upon Article 8 has absolutely no prospect of success. Therefore, it is not appropriate that I should grant permission to appeal against the refusal of Judge Rintoul to give permission to apply for judicial review of the Secretary of State’s decision.

Case No. C2/2014/3274 Neutral Citation Number: [2016] EWCA Civ 266 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 16 February 2016 B e f o r e: LORD JUSTICE TOMLINSON ——————–Between: THE QUEEN ON THE APPLICATION OF PAREKH Applicant v SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent ——————–DAR Transcript of the Stenograph Notes of WordWave International Limited trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) ——————–Mr B Singh (instructed by Malik Law) appeared on behalf of the Applicant The Respondent was not present and was not represented ——————–J U D G M E N T (Approved)

1. LORD JUSTICE TOMLINSON: This is a renewed application for permission to appeal against a refusal of Upper Tribunal Judge Allen on 16 September 2014 to give permission to apply for judicial review of the Secretary of State’s decision of 20 June 2013 to refuse to grant the Applicant leave to remain in the United Kingdom. The application to move for judicial review had earlier been refused on the paper application by Upper Tribunal Judge Coker on 24 July 2014. 2. I am grateful to Mr Baldip Singh who has striven valiantly to persuade me that this is a proper case to grant permission to appeal, but it seems to me that this is one of the more hopeless cases I have ever had to consider in this jurisdiction. 3. The only basis upon which this Applicant claims that she should be permitted to remain here is that she says that her son lives here and he is a British citizen. She says she has severed all links in her native country, Pakistan. The bare bones of the story are contained within a letter written on her behalf to the UK Border Agency on 7 November 2012 by her experienced solicitors, Malik Law Chambers, who write: i. “Our client advised us that she came to the UK on a visitor’s visa in 2005 and then reentered the UK in June 2007 on a visitor’s visa. After the expiry of this visa she returned to Pakistan and then reentered the United Kingdom on 6 February 2009 on a visitor’s visa. She then returned to Pakistan. She reentered the UK after this date on 10 May 2010 and returned on 2 October 2010. Her husband passed away two months after she returned on 8 December 2010. Her last entry to the United Kingdom was in May 2011 on a visitor’s visa and she has continued to reside in this country since then without any absences abroad. She has no ties in the country where she came from and if asked to leave the United Kingdom she will have no one to return to. She has an established private and family life in the UK and will not be able to live without her son if returned to Pakistan. Over the period of her residency in the UK our client has established a strong private and family life. She has formed strong connections with the people in and beyond her community, which would be a violation of her legitimate expectation to remain in the UK as she has already so firmly settled herself here.”

4. The bare facts are that in 2011 the Applicant was either 54 or 55, her date of birth being 1 June 1956. The son of whom she speaks, who was born on 12 August 1979, was 32. The Secretary of State determined, and there is no attempt to challenge that decision, that the Applicant failed to fulfil any of the requirements of rule 276ADE of the Immigration Rules and the Secretary of State also did not accept the allegation that she had no remaining ties in the country of her birth. The Secretary of State said: i. “Having spent 54 years in your home country and in the absence of any evidence to the contrary, it is not accepted that in the period of time that you have been in the UK you have lost ties to your home country. Therefore, the Secretary of State is not satisfied that you can meet the requirements of rule 276ADE(vi).”

5. The Secretary of State then went on to deal with the Article 8 claim in this way: i. “It has also been considered whether your application raises or contains any exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights, might warrant consideration by the Secretary of State of a grant of leave to remain in the UK outside the requirements of the Immigration Rules. It has been decided that it does not. Your application for leave to remain in the UK is therefore refused.”

6. That determination, like the determination of the Upper Tribunal, was of course given before the important decisions of this court in Singh and Khalid v Secretary of State [2015] EWCA Civ 74 and of even more immediate relevance, SS (Congo) and Others v Secretary of State [2015] EWCA Civ 387. 7. Mr Singh, to whose economical submissions I have already paid tribute, suggests that since the second of those decisions, SS (Congo), there is still a need for clarification as to what is the relevant approach or test when considering an application for leave to remain

outside the rules. 8. In my judgment, there is no need for clarification because the test which is to be applied is that identified in paragraph 33 of the judgment of the Court of Appeal, that compelling circumstances would need to be identified to support a claim for grant of leave to remain outside the new rules in Appendix FM. The court pointed out that that is a formulation which is not as strict as a test of exceptionality or a requirement of very compelling reasons which applies in different circumstances, but nonetheless the test is one of compelling circumstances. 9. It seems to me that the bare facts relied upon which were placed before the Secretary of State in order to support this application fall hopelessly far short of what could be regarded as compelling circumstances. There is nothing more than the circumstance that this lady sadly has lost her husband in Pakistan and would wish to live in this country with her only adult child. 10. That, as I indicate, falls so far short of compelling circumstances that I am a little surprised that this application has been pursued since it was so comprehensively refused by Underhill LJ on the papers in June 2015. Underhill LJ, whose knowledge of these matters is unsurpassed, was a party to the decision both in Singh and in SS (Congo). He refused this application for permission to appeal on the following succinct grounds: i. “Two grounds of appeal are pleaded, but in her clear and succinct skeleton argument the Applicant condenses them to one. That ground is, however, comprehensively undermined by the decisions in Singh [and he gives the reference] and as regards exceptionality, SS (Congo) [again, he gives the reference].”

11. I respectfully agree with Underhill LJ’s formulation. 12. Whilst Mr Singh has told me that SS (Congo) is going to the Supreme Court and has

repeated his submission or emphasised his submission that some clarification is needed, I have to say that I find it very difficult to conceive any test that would have the result that this Applicant would be granted leave to remain. 13. For all those reasons, therefore, I am quite satisfied that this is not an appropriate case in which to grant permission to appeal.

Case No: C4/2015/3050 Neutral Citation Number: [2016] EWCA Civ 279 IN THE COURT OF APPEAL (QUEEN’S BENCH DIVISION) ON APPEAL FROM THE ADMINISTRATIVE COURT MANCHESTER CIVIL JUSTICE CENTRE Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 25 February 2016 Before: LORD JUSTICE GROSS SIR STANLEY BURNTON ——————–Between: BANGURA & ANR Applicant - and THE UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER) ——————–DAR Transcript of WordWave International Limited Trading as DTI Global 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 Official Shorthand Writers to the Court


Respondent

Mr Rory O’ Ryan (instructed by Greater Manchester Immigration Aid Unit) appeared on behalf of the Applicant Ms Julie Anderson (instructed by Government Legal Department) appeared on behalf of the Respondent ——————–Judgment (Approved t)

LORD JUSTICE GROSS:

1.

This case demonstrates a deeply unhappy and protracted procedural tangle. Such tangles necessarily involve cost - in terms of delay, the public purse, public confidence in immigration control and the impact on the lives of the individuals involved. I hope that at the conclusion of our judgment the parties will reflect on the position reached and seek to escape from the thickets of procedure with a view to resolving the substantive issues which will one day need to be addressed.

2.

The applicants apply to this court for permission to appeal the decision of Jay J on 10 July 2015 refusing permission to apply for judicial review. I shall return to that decision but it is most helpfully approached via a bird’s eye view of the history, much aided by the chronology supplied by counsel at the court’s request.

3.

On 18 September 2014, the Secretary of State for the Home Department refused the asylum claim made by the first applicant (with the second applicant and the second applicant’s daughter listed as dependents), and indicated that they would be removed administratively. The relevant notices of decision confirmed that they, the first and second applicants, each had an in-country right of appeal.

4.

On 6 October 2014, the first and second applicants faxed notices of appeal to the FirstTier Tribunal against the Secretary of State’s removal directions.

5.

Subsequently two case management reviews were fixed and adjourned.

6.

In the meantime, under cover of a letter of 8 October 2014 a further reasons for refusal letter was sent, dated 3 October 2014, in which the Secretary of State certified, or purported to certify, the first applicant’s asylum and human rights claims on the

grounds that such claims were clearly unfounded. In consequence, the first applicant could not appeal while in the United Kingdom. 7.

Curiously, under cover of the same 8 October letter, a further administrative removal decision was sent, again indicating that the first applicant had an in-country right of appeal.

8.

Following the third case management review on 21 November 2014 notices were issued on 2 December 2014 saying this:

“NOTICE OF APPEAL WHERE RELEVANT DECISION ETC.

THERE

IS

NO

You have given a notice of appeal against a decision of the respondent. The decision against which you are seeking to appeal is not one against which there is an exercisable right of appeal to the Firsttier Tribunal or is one where the notice of appeal falls within rule 22(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Accordingly, the notice of appeal you have lodged is invalid and the tribunal will take no further action in relation to it.” It may be noted that that document – that is, the document of 2 December 2014 – was signed by the clerk to the First-Tier Tribunal.

9.

On 16 December 2014 the applicants applied to the First-Tier Tribunal for permission to appeal. They advanced, in summary, these grounds: (1) that the first and second applicants had instituted appeals against the Secretary of State’s decisions of 18 September 2014; (2) the purported further decision dated 8 October 2014 related to the first applicant only; (3) in any event, as the first applicant had already instituted an appeal against the Secretary of State’s decision of 18 September 2014, his appeal remained pending under section 104 of the Nationality, Immigration and Asylum Act 2002, such appeal not having lapsed by the operation of section 99 of that Act; (4) the

First-Tier Tribunal rules 2014 require permission to be given to the Secretary of State to withdraw a decision, and no notice of withdrawal had ever been given. 10.

On 5 January 2015 Judge Denson, a judge of the First-Tier Tribunal, said this:

“The appellants seek permission to appeal against a decision of the tribunal determining that the decision against which the appellants were seeking to appeal was not one in which there was an exercisable right of appeal to the First-Tier Tribunal. There is no arguable error of law but permission to appeal is not refused as there was no appeal in which there was an exercisable right of appeal in any event.”

11.

Curiously again, Judge Denson’s ruling was sent to the applicant in a letter saying this. The letter notified the applicants that the First-Tier Tribunal had refused or not admitted the applications for permission to appeal to the Upper Tribunal and went on to say that the applicants may apply to the Upper Tribunal for permission to appeal on a point of law arising from the First-Tier Tribunal decision.

12.

Subsequently, on 21 January 2015 the first and second applicants sought to appeal to the Upper Tribunal. On 24 April 2015 the Upper Tribunal refused permission to appeal to itself in the following terms:

“Permission to appeal is refused. Reasons (including any decision on extending time). The First-Tier Tribunal did not accept the notice of appeal that was lodged and issued to the appellant a notice to that effect, confirming to the applicant that, as is the notice of appeal is invalid, the First-tier Tribunal will take no further action in relation to it. That was an administrative act by the tribunal and so there has been no judicial decision capable of being challenged by an application for permission to appeal. As this was an excluded decision, there was no right of appeal to the Upper Tribunal (see section 11(1) Tribunals, Courts and Enforcement Act 2007).” 13.

On 15 May 2015 the first and second applicants sought judicial review of that decision or those decisions of the Upper Tribunal. Against that background, I come to the

decision of Jay J on 10 July 2015. The learned judge refused permission for judicial review and said this:

“On 2 December 2014 the First-Tier Tribunal made an administrative decision stating that the decisions you were seeking to appeal were not appealable decisions for the purposes of rule 22(2)(a) of the Procedure Rules. You then sought to appeal that decision to the Upper Tribunal, but that application was misconceived. Under section 11(1)(g) of the 2007 Act and article 3(m) of the Appeals (Excluded Decisions) Order 2009 as amended, the First-Tier Tribunal’s decision was itself an excluded decision and not appealable. The same applies under a different provision to the Upper Tribunal’s decision refusing permission to appeal to the Court of Appeal. What you should have done was to seek to judicially review the First-Tier Tribunal’s decision dated 2 December 2014. Instead you have persisted with a misconceived application. I do not comment on the prospects of success of the application that you have not made and which you may well be out of time to bring. In my view, this is not a Cart case. substantive appeal.

There has been no

A renewed application is no bar to removal in the absence of further order.”

14.

It may be noted that the applicants did not renew their application for an oral hearing in the Administrative Court. Instead they have sought leave to appeal to this court from the decision of Jay J. That course was queried by the Master of the Civil Appeals Office under cover of an email of 21 August 2015. It was there said:

“It is unclear why the applicants did not renew their application to an oral hearing in the Administrative Court. It was not treated as Cart type case so renewal has not been precluded by CPR 54.7A(8)…”

15.

Ultimately the matter has come to us following directions given by Underhill LJ, to which it is unnecessary to go. The first and jurisdictional question is whether there is

any judicial decision from the First-tier Tribunal which is appealable. In my judgment, there is not, essentially for the reasons given by Jay J. As it seems to me, on the facts of this case, what happened here is that the Secretary of State certified and what followed was an administrative decision by the FTT. That point is exemplified by the fact that the decision is signed by a clerk though I am certainly saying nothing more general about the powers of delegated officers in the tribunal system. But here it rather makes the point that all that happened was a certificate from the Secretary of State followed by an administrative decision, so that there was no judicial decision on the FTT’s part and therefore nothing to appeal to the Upper Tribunal.

16.

In the circumstances, it seems to me that there is no arguable basis for any appeal from the decision of Jay J to this court. I have not overlooked that Mr O’ Ryan, who approached this matter extremely diligently for the applicant, sought to pray in aid three decisions to which he drew our attention. Those are, first, JH (Zimbabwe) v SSHD [2009] INLR 385; secondly, Abiyat [2011] UKUT 314 (IAC), 20 July 2011; and, thirdly, Ved & Anr [2014] UKUT 150 (IAC) 27 March 2014.

17.

The point of all those decisions is that some jurisdictional decisions rejecting jurisdiction are indeed judicial. With that proposition it is impossible to quibble. But some jurisdictional decisions are also not judicial decisions and are no more than administrative, and, in my judgment that is the case here beyond argument. Jay J expressed a view as to what the right course was. In the course of argument today, both my Lord and I expressed views as to what the real issues of the case were and how they could rightly be addressed. That is now a matter for the parties to consider and pursue, if they think fit; but, for our part, it is unnecessary to go further than in my judgment to say that I would refuse permission to appeal.

SIR STANLEY BURNTON:

18.

I agree.

LORD JUSTICE GROSS:

19.

We are grateful for the assistance of both Mr O’Ryan, who I commend for his diligence, and Ms Anderson, for her helpful skeleton argument.

20.

In principle as to costs, Ms Anderson is right. With a degree of reluctance, given that, it seems to me at least, it is unfortunate that this case has reached here with the entrenched position of both parties being what it has been, nonetheless the principle which Ms Anderson refers to does apply; it is a strong principle and she should have her costs subject to detailed assessment.

Order: Application refused

Case No. C2/2014/2883 Neutral Citation Number: [2016] EWCA Civ 285 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 23 February 2016 B e f o r e: MR JUSTICE MOYLAN ——————–Between: THE QUEEN ON THE APPLICATION OF MINTO Applicant v SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent ——————–DAR Transcript of the Stenograph Notes of WordWave International Limited trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) ——————–Mr R Singer (instructed by AA & Co Solicitors) appeared on behalf of the Applicant The Respondent was not present and was not represented ——————–J U D G M E N T (Approved)

1. MR JUSTICE MOYLAN: This is a renewed oral application for permission to appeal from the order of 2 April 2014 of Judge Freeman sitting in the Upper Tribunal (Immigration and Asylum Chamber) by which he refused the proposed Appellant, the Applicant, permission to apply for judicial review of a decision made by the Secretary of State for the Home Department in an immigration matter. The decision under challenge is the Secretary of State’s refusal, by letter dated 7 August 2013, to grant the Applicant leave to remain. 2. The proposed Appellant is represented by Mr Singer, who has provided written submissions and has made oral submissions today. 3. Mr Singer submits that the appeal is properly arguable. The grounds on which he submits that there were public law errors which warrant an appeal are as follows. First, that there was no reasoning of what “insurmountable obstacles” means. Secondly, that no proper balancing exercise was carried out in respect of the application outside the rules. Thirdly, that there was no assessment of the reasonableness of the proposed relocation of the Applicant’s wife to Jamaica. 4. He submits that, had the evidence and the overall circumstances been properly analysed and a proper balancing exercise been conducted, the Secretary of State would have or should have concluded that the balance came down in favour of granting leave. He further submits that there is a flaw in the Upper Tribunal’s decision because it simply focuses on the mental health problems of the Applicant’s wife. It is argued that there are compelling facts in this case which have not been properly considered either by the Secretary of State or by the Upper Tribunal Judge and which, if properly considered, would establish a properly founded claim either within the rules and/or outside the rules under Article 8.

5. The background facts are set out in Judge Freeman’s decision. The Applicant is a Jamaican national who was aged 43 at the date of the decision. He came to the United Kingdom as a visitor in 2000 when he was aged approximately 29. He overstayed and has remained living in the United Kingdom. In 2005 he married a British citizen and they have been living together since then. 6. The relevant application for leave to remain, which followed other applications, was made on 20 June 2013. It applied for leave as the partner of a person present and settled in the United Kingdom. This is a reference to paragraph EX.1(b) of Appendix FM to the Immigration Rules which applies if the Applicant has a genuine and subsisting relationship with a partner who is in the United Kingdom and is a British citizen settled in the United Kingdom and there are insurmountable obstacles to family life with that partner continuing outside the United Kingdom. The insurmountable obstacle referred to in the application is the Applicant’s wife’s mental health condition. 7. In addition, in an accompanying letter dated 20 June 2013, from the Applicant’s solicitors, the application is also advanced for leave outside the rules. This refers to both Article 3 and Article 8 of the European Convention on Human Rights. The contents of the letter range widely and include the Applicant’s wife’s mental health condition, the Applicant’s situation in the United Kingdom, the situation he would face in Jamaica and his family’s circumstances. 8. The application for leave to remain was refused, as I have said, by letter dated 7 August 2013 on the basis (a) that there were no insurmountable obstacles and (b) that the case did not meet the threshold for granting leave outside the rules. 9. The application for permission to apply for judicial review contains nine grounds including that the Secretary of State’s decision was not in accordance with the law and/or

the Immigration Rules, that there are insurmountable obstacles to family life with the Applicant’s wife continuing outside the United Kingdom and that the Applicant’s case based on the European Convention had been wrongly rejected. 10. The application for permission to apply for judicial review was refused on paper. It was refused on the basis that the Secretary of State was entitled to reject the application within the rules and was entitled to conclude that there were no circumstances justifying the grant of leave and that there was no arguable case of a prospective breach of Articles 3 and 8. 11. The application for permission was renewed on paper. The written notice focuses solely on the asserted presence of insurmountable obstacles based on the Applicant’s wife’s mental health condition. Given the focus of this notice, in my view, it is not surprising that the Upper Tribunal Judge’s judgment also focuses on this issue. 12. He addresses the evidence relating to the wife’s mental health condition in some detail. This is because the Secretary of State had not or did not appear to have considered the effect of this evidence on the claim based on the existence of insurmountable obstacles. Judge Freeman decided that the Applicant’s case as to the existence of insurmountable obstacles was not reasonably arguable. Given that the claim based on the European Convention raised the same essential issues, he refused the application for permission to apply for judicial review. 13. In his summary of reasons, Judge Freeman repeats what the Applicant needed to show. He explains that, in his judgment, the evidence did not demonstrate an arguable case either as to insurmountable obstacles or under Article 8 because there was no evidence addressing the care and medication available to the Applicant’s wife in Jamaica and that her symptoms were, in themselves, not so severe as to establish such a case.

14. The application for permission to appeal this decision was rejected on paper by Sales LJ. In his reasons for refusing permission, he said that Judge Freeman had conducted a fair and balanced assessment of the position in relation to the mental health of the Applicant’s wife. Further, given the Applicant’s status as an unlawful overstayer, exceptional or compelling circumstances would need to be shown to support a claim outside the rules. He refers to the case of Agyarko. 15. Today Mr Singer has sought to challenge the reasoning of Sales LJ and has referred me to the case of SS (Congo) in which it was said: i. “… it is accurate to say that the general position outside the sorts of special contexts referred to above is that compelling circumstances would need to be identified to support a claim for grant of leave to remain outside the new Rules.”

16. In my judgment, notwithstanding the able submissions of Mr Singer, this appeal is not properly arguable. For the avoidance of doubt, there is also no other compelling reason for the grant of permission to appeal. 17. Broadly, I agree with the reasons given by Sales LJ. It is clear that the primary evidential foundation for the application has been, throughout, the Applicant’s wife’s mental health. This was, no doubt, because it was recognised that the other matters raised would not be likely to establish insurmountable obstacles or either exceptional or compelling circumstances. 18. Judge Freeman, in my judgment, was right to focus on that aspect of the case and he dealt with it carefully. In paragraph 5 of his reasons he expresses the view that this is not a case of such severe symptoms that they inevitably raise insurmountable obstacles to family life continuing outside the United Kingdom. This is after he has set out details of the medical history. He also identifies the absence of evidence as to the care and

medication available in Jamaica. 19. In the circumstances of this case, I see no real prospect of the Court of Appeal being persuaded that the Upper Tribunal Judge’s assessment of the merits of the challenge to the decision either of the application within the rules and/or of that made outside the rules was wrong. It is well-established that, where family life is created in the knowledge that the immigration status of one of the partners is precarious, it is only exceptionally that the removal of the non-national family member will be a breach of Article 8. In my view, it is not reasonably arguable that such circumstances should have been found to be established in this case. 20. I refuse the application for permission to appeal.

Case No: C5/2015/0977 Neutral Citation Number: [2016] EWCA Civ 301 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 8 March 2016 Before: LORD JUSTICE TOMLINSON ——————–IT (JAMAICA) Applicant - and SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

——————–DAR Transcript of WordWave International Ltd trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 704 1424 Web: www.DTIGlobal.com Email: TTP@dtiglobal.eu (Official Shorthand Writers to the Court) ——————–Mr Marcus Pilgerstorfer (instructed by the Government Legal Department) appeared on behalf of the Applicant The Respondent did not appear and was not represented ——————–Judgment (Approved)

Lord Justice Tomlinson: 1.

This is a renewed application to bring a second appeal in respect of a determination by the Upper Tribunal promulgated on 10 November 2014. There was on that occasion before the Upper Tribunal an appeal by the Secretary of State against a decision of the First-tier Tribunal promulgated on 9 June 2014 pursuant to which the First-tier Tribunal allowed the appeal of the Appellant, to whom I will refer as IT.

2.

IT is a national of Jamaica born on 9 April 1979. He arrived in the United Kingdom as a visitor on 1 November 2000 and failed to leave the United Kingdom upon the expiration of his six-month leave to enter. He took no steps to regularise his position. He apparently met his partner in 2002 or 2004 and they began to cohabit in 2006. There are five children.

3.

On 4 May 2004 IT was convicted of supplying class A drugs. He was sentenced to five terms of four years’ imprisonment, those terms ordered to run concurrently. It appears that he was convicted under a name which was not his own. The circumstances in which that occurred are discussed by the First-tier Tribunal. He was released from prison sometime in 2006 having no doubt spent some time on remand prior to his conviction. There was other criminality following his release from prison.

4.

One of the problems that has arisen in this case is that as a result of having been convicted under the name “Simon Anthony Merchant” the Secretary of State was not notified at the time of a conviction registered against him in the name “IT”. Similarly when in June 2013 he was convicted for the possession of a class B drug and when in

2011 he was cautioned by the police for assault it would seem that the connection was not made between IT and the very serious conviction in 2004 which attracted the fouryear sentence of imprisonment.

5.

The significance of the four-year sentence of imprisonment is of course that Rule 398 of the Immigration Rules in the form in which they were applicable at the time of the Secretary of State’s decision to deport provide that:

“398. Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and (a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; […] the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.”

6.

Paragraphs 399 and 399A are only applicable in circumstances where paragraph 398B or 398C applies but not where sub-rule 398A is applicable, and on the basis of the authorities (which are very helpfully set out by Mr Pilgerstorfer both in his skeleton argument and also in the Appellant’s statement prepared for this hearing) it is plain that there can be no proper examination of a decision made by the Secretary of State in circumstances such as these without careful reference to both Rule 398A and Rules 399 and 399A bearing in mind that what will be required in order to demonstrate exceptional circumstances will be circumstances going over and beyond the types of matter which are dealt with in paragraphs 399 and 399A.

7.

What is striking about the determination of the First-tier Tribunal is that at no point does that Tribunal set out either the applicable parts of Rule 398 or indeed Rules 399 or 399A, nor does it set out the principles to be derived from the relevant authorities. In giving permission to appeal to the Upper Tribunal, Upper Tribunal Judge Gill noted this shortcoming and said this:

“It is arguable that the panel of the First-tier Tribunal erred in its approach to the balancing exercise when it considered the issue of exceptionality. The panel did not refer to paragraphs 398, 399 and 399A of the Immigration Rules. The relevance of this is that the scheme set out in paragraphs 398, 399 and 399A shows that Parliament has decided that those who have received sentences of imprisonment of four years or more should not have the benefit of paragraphs 399 and 399A. This means that in cases that fall within paragraph 398A the fact that paragraphs 399 and 399A may be satisfied was regarded by Parliament as insufficient in itself to outweigh the state’s interests. This is the context in which an assessment as to whether there are exceptional circumstances such that the public interest is outweighed by other factors had to be determined in this case.”

8.

When the matter came before Judge Pinkerton on the substantive hearing in the Upper Tribunal he noted at paragraph 16 that the First-tier Tribunal had apparently considered the Appellant’s claim under Article 8 as a matter which “may” be considered in conjunction with Rule 398, and inferentially Judge Pinkerton seems to have recognised that that was inappropriate bearing in mind that it is plain that the Rule (as is made clear by the authorities) mandates that the Article 8 claim must be looked at through the lens of Rule 398 and Rules 399 and 399A. But Judge Pinkerton went on to say that although the use of the word “may” was not apparently appropriate, in context he did not regard that as a material misdirection.

9.

It seems to me with great respect to the Upper Tribunal that the approach of the Firsttier Tribunal was arguably completely flawed in that the First-tier Tribunal appears to have thought that it was at liberty to conduct a freestanding appraisal of the Appellant’s Article 8 rights without regard to the Immigration Rules. That was a misdirection.

10.

Furthermore, there are other aspects of the determination of the First-tier Tribunal which to my mind give rise to serious question. In dealing with the question of delay the First-tier Tribunal concluded at paragraph 48 that in the light of the period of time which elapsed between the Appellant’s conviction and the Secretary of State’s decision to deport it was “difficult to see that the Respondent [the Secretary of State] finds the Appellant’s exclusion from the UK conducive to the public good”. That again as it seems to me betrays a fundamental misunderstanding of the framework against the background of which the Tribunal must evaluate the position. It is nothing to the point whether the Secretary of State finds the Appellant’s exclusion from the UK conducive to the public good. The fact is that Parliament has determined that the deportation of foreign criminals is in the public interest and so far as concerns foreign criminals to whom a sentence of four years or more has been given, it has made clear that it will only be in very exceptional circumstances that those considerations will be regarded as outweighed.

11.

Furthermore, the First-tier Tribunal appears to have regarded the lapse of time between conviction and the deportation order as a matter to be weighed in the balance against the Secretary of State without regard to the consequences and the effect of the delay. Again, as it seems to me that is arguably a mistaken approach.

12.

For all these reasons, therefore, and notwithstanding that Lloyd Jones LJ refused the application for permission to appeal, I am satisfied that for the reasons set out in full in Mr Pilgerstorfer’s very comprehensive and careful skeleton argument of 24 March 2015 and in his Appellant’s statement of 4 March 2016 there are here very important points of principle or practice such as he has identified and indeed other compelling reasons for the Court of Appeal to entertain a second appeal. It is of course a matter of great public concern that Parliament’s intention so far as concerns the deportation of foreign criminals should be fully understood by the tribunals and it is in my judgment fairly arguable that the First-tier Tribunal and the Upper Tribunal have here failed to carry out the Parliamentary intention and indeed have failed to have regard to the guidance given by this court.

I am conscious that there has been since the

determination of the Upper Tribunal at least one further decision of this court, that is to say, the decision in LC (China) v Secretary of State for the Home Department [2014] EWCA Civ 1310 in which important guidance was given, but nonetheless for the reasons I have indicated I am quite satisfied that it is appropriate that the Secretary of State should be granted permission to appeal in this case.

Order: Application granted

Case No: C2/2015/2828 Neutral Citation Number: [2016] EWCA Civ 303 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) (Upper Tribunal Judges Storey and Peter Lane) Royal Courts of Justice Strand London, WC2A 2LL Date|: Tuesday, 8 March 2016 B E F O R E: LORD JUSTICE LAWS LORD JUSTICE BEATSON LADY JUSTICE KING ——————–THE QUEEN ON THE APPLICATION OF AHMED Appellant -vSECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent ——————–(Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 Official Shorthand Writers to the Court) ——————–Mr Z Malik and Mr S Karim (instructed by Law Lane Solicitors) appeared on behalf of the Appellant Mr C Thomann and Ms J Smyth (instructed by the Government Legal Department) appeared on behalf of the Respondent ——————–J U D G M E N T (Approved)

1. LORD JUSTICE LAWS: This is an appeal, with permission granted by Sales LJ on 7 October 2015, against a determination of the Upper Tribunal (Upper Tribunal Judges Storey and Peter Lane) promulgated on 24 July 2015. By its determination the Upper Tribunal dismissed the appellant’s claim for judicial review of the decision of the Secretary of State made on 20 February 2015 to remove him from the United Kingdom. 2. The overriding issue in the case is whether the appellant could lawfully be removed pending the determination of his appeal against the refusal of a residence card as the family member of an EEA national. In fact as I shall show the appellant was not removed and remained in the United Kingdom to pursue his appeal which was at length dismissed on 14 August 2015. The issue is therefore moot from his point of view. We must accordingly decide whether we should nevertheless entertain the appeal in light of the acknowledged importance of the issue. 3. It will make for clarity if I first explain the case. The essential facts are short and not in dispute. They are summarised by the Upper Tribunal as follows: “6. On 4 April 2011, the applicant, a citizen of Pakistan, arrived in the United Kingdom in possession of a Tier 4 Student visa. On 21 November 2014, the applicant married a Romanian national. On 17 December 2014, the applicant submitted an application for an EEA residence card, pursuant to the EEA Regulations. The applicant’s leave to remain as a student expired on 22 December 2014.

7. On 20 February 2015, the applicant and his wife attended for interviews, conducted by a representative of the respondent. Following the interviews, the respondent concluded that the applicant’s marriage was one of convenience. Since the applicant had by this point overstayed his leave, he was detained and served with a notice of a decision to remove, pursuant to section 10 of the 1999 Act. On 24 February 2015, the

applicant issued his judicial review claim in the Upper Tribunal. The following day, the respondent refused the applicant’s application for an EEA residence card. The applicant appealed against that decision to the First-tier Tribunal.”

4. The judicial review claim was as I have said directed at the decision to remove the appellant made on 20 February 2015. Following an initial refusal, permission to seek judicial review was granted by Upper Tribunal Judge Storey on 23 March 2015. The judicial review came on for hearing on 8 June 2015 when the appellant was given leave to amend his grounds to contend that his statutory right of appeal against the refusal of the residence card on 25 February 2015 had the effect of suspending the Secretary of State’s power to remove him from the United Kingdom pursuant to the decision of 20 February. 5. On 14 August, as I have said, the FTT (in fact constituted by the same judges, Judges Storey and Lane) dismissed his appeal against the refusal of the residence card, holding that the Secretary of State had proved that the appellant’s marriage was one of convenience. Permission to appeal to the Upper Tribunal has, we are told, been refused. 6. The Upper Tribunal made it plain at the outset of the judicial review determination that the scenario of the present case, as they put it, is encountered in the tribunals with some frequency. It has been the subject of conflicting first instance decisions. Dicta in LO (Partner of EEA national) Nigeria [2009] UKAIT 00034 favour the appellant’s position; whereas Abdullah, R (on the application of) v Secretary of State for the Home Department & Anor [2009] EWHC 1771 (Admin) favours that of the Secretary of State. It is well-established that the court should only proceed to entertain an appeal which on the facts is moot as between the parties “cautiously” or “sparingly”. In this case on balance I would do so. 7. I turn to the relevant legislation. There are four statutory measures relevant to the issues in this case; three domestic, one European. They are in chronological order section 10 of the Immigration and Asylum Act 1999; provisions contained in the Nationality,

Immigration and Asylum Act 2002; Directive 2004/38/EC on the right of EU citizens to move and reside freely within the territory of the Member States; and the Immigration (European Economic Area) Regulations 2006, which implement the Directive. 8. As the Upper Tribunal indicated, the Secretary of State decided to remove the appellant as an overstayer. The power to do so is given by section 10(1)(a) of the 1999 Act. The refusal of an EEA residence card is a “EEA decision” within the meaning of paragraph 2(1)(b) of the 2006 Regulations, which define an EEA decision thus: “‘EEA decision’ means a decision under these Regulations that concerns a person’s— (a)entitlement to be admitted to the United Kingdom; (b)entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, document certifying permanent residence or permanent residence card; or ©removal from the United Kingdom.” 9. By Regulation 17 the Secretary of State must issue a residence card to a person who is not an EEA national but is the family member of an EEA national. By Regulation 7(1) family member includes spouse, but Regulation 2(1) shows that spouse does not include a party to a marriage of convenience. The Secretary of State refused the appellant’s application for a residence card because she had concluded that he was such a party. 10. The right of appeal against an EEA decision, including the refusal of a residence card, is given by Regulation 26(1). It is common ground that there is no provision which forbids such an appeal to be brought while the appellant remains within the jurisdiction. But the question is whether the law confers on such an appellant a positive right not to be removed until his appeal has been determined. The Upper Tribunal held (paragraph 26) that: “The basic flaw in the applicant’s case is to conflate the absence of

a statutory prohibition on the bringing of an appeal from within the United Kingdom with the existence of a right to be so present in order to bring such an appeal and to prosecute it to its conclusion.” 11. What then do the statutory provisions tell us about the right, if any, to an in-country appeal? Section 82(1) of the 2002 Act confers a right of appeal against what is there described as an “immigration decision”. Section 78(1) prohibits the removal from the United Kingdom of certain section 82(1) appellants (see section 78(4)) from the United Kingdom while their appeals are pending. Certain provisions of the 2002 Act are by Schedule 1 to the 2006 Regulations to have effect in relation to appeals under those Regulations; but section 78 is not one of them. However, Regulation 19 of the 2006 Regulations provides that certain appeals under the Regulations are to have suspensive effect. Regulation 29 provides in part: “(1) This Regulation applies to appeals under these Regulations made to the First-tier Tribunal or the Upper Tribunal. (2) If a person in the United Kingdom appeals against an EEA decision to refuse to admit him to the United Kingdom, any directions for his removal from the United Kingdom previously given by virtue of the refusal cease to have effect, except in so far as they have already been carried out, and no directions may be so given while the appeal is pending. (3) If a person in the United Kingdom appeals against an EEA decision to remove him from the United Kingdom, any directions given under section 10 of the 1999 Act or Schedule 3 to the 1971 Act for his removal from the United Kingdom are to have no effect, except in so far as they have already been carried out, while the appeal is pending.”

12. It will be recalled that Regulation 2(1) defined three classes of EEA decision, of which a decision on an application for a residence card was the second, appearing at

Regulation 2(1)(b). It will be seen that Regulation 29(2) gives suspensive effect to an appeal against an EEA decision of the kind set out at Regulation(2)(1)(a) and Regulation 19(3) gives such effect to an appeal against an EEA decision of the kind set out at Regulation 2(1)©. But no suspensive effect is given to a Regulation 2(1)(b) EEA appeal against the refusal of a residence card. 13. Accordingly there is in my judgment nothing in these statutory provisions to give the appellant’s appeal against the refusal of a residence card suspensive effect so as to prevent his removal from the United Kingdom while the appeal is pending. On the contrary, the conferment of suspensive effect on appeals relating to EEA decisions listed at Regulation 2(1)(a) and © but not (b) raises the plain inference that it was the specific intention of the subordinate legislator to deny a 2(1)(b) appeal against refusal of a residence card any suspensive effect whatever. 14. Regulation 27, to which Mr Malik referred this morning, is, with respect, neither here nor there. 15. This conclusion is in line with that of Blair J in Abdullah, whose reasoning, with respect, I need not set out. The contrary decision in LO is wrongly decided. I note that Regulation 29 was not there referred to. 16. Mr Malik (at paragraph 16 of his skeleton) asserts that the Upper Tribunal accepted that the appellant had a “in-country right of appeal” and (paragraph 17) that since that was so it was unnecessary for such an appeal to be catered for in Regulation 29. But the observation at paragraph 16 is I fear an egregious misdescription of what the Upper Tribunal said. I have cited the passage at paragraph 26 where the Upper Tribunal accept in terms that there is no “prohibition on the bringing of an appeal from within the United Kingdom” but rightly contrasts this uncontentious fact with the very different proposition that there is a right to be present to bring and prosecute such an appeal. The fact that an in-country appeal in relation to a residence card is not prohibited is in my judgment simply neutral. 17. The appellant next has a submission arising out of the terms of the Directive. He relies

particularly on Article 31.4: “Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his/her defence in person except when his/her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory.” 18. However, this provision has to be seen in context. It is succinctly explained in the reasoning of the Upper Tribunal at paragraph 28: “Mr Karim’s attempt to invoke Article 31 as in some way covering an appeal against the refusal of a residence card must fail. That Article occurs within Chapter VI of the Directive, which is headed ‘RESTRICTIONS ON THE RIGHT OF ENTRY AND THE RIGHT OF RESIDENCE ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH’. Article 27 (general principles) states that, subject to the provisions of Chapter VI ‘Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health’. Article 27, together with Article 28 (protection against expulsion) and Article 29 (public health) accordingly informs who are the ‘persons concerned’ referred to in Article 31(1). They are Union citizens and their family members, subject to expulsion or removal measures. As a result, Article 31 has nothing whatsoever to say about a person who is not being expelled as a Union citizen or family member but who is appealing against a decision that he or she is not such a family member.” 19. I do not think that this reasoning is affected by Article 15, to which Mr Malik referred this morning. That Article is concerned effectively with prohibitions as such. In my judgment the Upper Tribunal’s reasoning is plainly correct. I note, as the Upper Tribunal

did at paragraph 27, that in an observation by the Commission on an earlier version of what became the Directive, COM/2001/0527 final, it was stated that: “Giving appeals automatic suspensory effect would not be a suitable solution, since it would lay the arrangements open to abuse.” 20. I have not found any assistance in the cases of Secretary of State for the Home Department v Islam, Rahman & Ors [2013] WLR 230 or McCarthy [2015] QB 151 (?), both decided in the Court of Justice. Mr Malik referred to them in the course of his submissions this morning. 21. Accordingly in my judgment the Directive does not assist the appellant. His appeal against the refusal of a residence card had no suspensive effect, nor is there any provision conferring upon him a right not to be removed from the United Kingdom during the time provided for the giving of notice of appeal against a refusal of the residence card. Mr Malik contends otherwise at paragraph 25 of his skeleton. 22. There is a further point based on section 92(4)(b) of the 2002 Act. This is to the effect that the appellant enjoyed an in-country right of appeal against the decision of 20 February 2015 to remove him from the United Kingdom. That decision was an immigration decision attracting a right of appeal under section 82 of the 2002 Act. Section 92 prevents a section 82 appeal from being brought in country unless it falls within a specified category, including that provided for by section 92(4)(b), which is in these terms: “(4)This section also applies to an appeal against an immigration decision if the appellant— ... (b)is an EEA national or a member of the family of an EEA national and makes a claim to the Secretary of State that the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or

residence in the United Kingdom.” 23. Mr Malik says that this provision applies to his client. 24. In my judgment it does not. Section 92(4)(b) refers to a person who is a family member of an EEA national, not a person who claims to be such. In fact, in one sense the point is idle in this case. The appellant has never sought to appeal the decision to remove him, and his marriage in the event has been definitively held to be one of convenience. He is not a family member of an EEA national. Thus Anwar v Secretary of state for the Home Department [2011] Volume 1 WLR 2252 does not assist Mr Malik. The power of a tribunal before which an appeal against a removal decision is brought to decide for itself whether the bar in section 92 applies to the case is moot: there is no such appeal here. 25. The appellant contended before the Upper Tribunal in dealing with the judicial review that the tribunal should have treated the issue of marriage of convenience, and therefore of the appellant’s family membership, as one of precedent fact; that is the Upper Tribunal should itself have decided whether he was a family member and so entitled to a residence card and so not liable to removal. In fact the tribunal proceeded upon the footing that the issue for them was whether the Secretary of State had made a public law error in reaching his decision. Mr Malik referred this morning to Giri, R (On the Application Of) v Secretary of State for the Home Department [2015] EWCA Civ 784, where at paragraph 20 Richards LJ said this: “The position would be different if we were concerned not with the exercise of the power under section 3 of the 1971 Act to grant leave to remain but with a decision to remove a person under section 10 of the 1999 Act on the ground that he or she had used deception in seeking leave to remain ... In that event, as a matter of statutory construction, the very existence of the power to remove would depend on deception having been used; and in judicial review proceedings challenging the decision to remove, the question whether deception had been used would be a

precedent fact for determination by the court in accordance with Khawaja [the latter is a reference to the decision in their Lordships’ House of Khawaja v Secretary of State for the Home Department [1984] AC 74].” 26. Those observations were of course obiter, but it seems to me that the Secretary of State is in any event right to submit at paragraph 70 of his skeleton as follows: “The present case is not, however, one in which the very existence of the power to remove was dependent upon the establishing by the Secretary of State of a precedent fact. The Appellant had overstayed his leave. He was, accordingly, removable. His presentation of an appeal against the refusal of his residence card did not, by the 2006 Regulations, bar his removal.” 27. Here, it was for the appellant to establish his EEA claim. That is done in such a case as this by application to the Secretary of State with a right of appeal thereafter, for which however the appellant has no right to be present in this country. It is not a case of precedent fact. 28. I see no reason therefore why in this class of case the Upper Tribunal should have departed from the ordinary public law approach. The legislature has by Regulation 26(1) of the 2006 Regulations provided for a merits appeal to the tribunal against the refusal of a residence card. That seems to me to conclude the matter. 29. For all the reasons that I have given I would dismiss the appeal. 30. LORD JUSTICE BEATSON: I agree. I emphasise, as I was party to the appeal in Giri, that the passage which my Lord has set out is clearly obiter. The context there is different because in this case there is no question of restricting or withdrawing an EEA right previously established. This appellant’s application raises the different issue of whether he enjoys an EEA right to remain in the first place; in other words whether he is a beneficiary of the Directive. I agree with all that has fallen from my Lord.

31. LADY JUSTICE KING: I also agree, and would specifically endorse the comments of my Lord, Beatson LJ, in respect of Giri, as I too was a member of that constitution.

Case No: C4/2014/3940 Neutral Citation Number: [2016] EWCA Civ 307 IN THE COURT OF APPEAL (QUEEN’S BENCH DIVISION) ON APPEAL FROM THE HIGH COURT, QUEEN’S BEWNCH DIVISION ADMINISTRATIVE COURT (HIS HONOUR JUDGE CLIVE HEATON QC) Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 1 March 2016 Before: LORD JUSTICE BRIGGS ——————–Between: NCN Appellant - and SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

——————–DAR Transcript of WordWave International Limited Trading as DTI Global 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 Official Shorthand Writers to the Court ——————–Ms Sonali Naik (instructed by Duncan Lewis) appeared on behalf of the Appellant The Respondent did not appear and was not represented


Approved Judgment

LORD JUSTICE BRIGGS:

1.

This is an application for permission to appeal the order of HHJ Heaton QC made on 17 October 2014, sitting in the Queen’s Bench Division of the High Court as a deputy High Court judge. He dismissed the appellant’s judicial review proceedings against a series of decisions by the Secretary of State not to treat further representations by the appellant as fresh asylum or human rights claims after dismissal of her original asylum, humanitarian and human rights claim by the Immigration Judge in November 2011.

2.

The judge refused permission to appeal. Beatson LJ considered a written application for permission to appeal and on 24 July last refused permission, giving, if I may say so, unusually detailed reasons for his conclusion that permission should be refused. This is the oral, further application for permission after that refusal on the papers.

3.

The background facts are that the appellant is a 19-year-old woman from Uganda. She fled Uganda and entered the United Kingdom with a false passport on 22 June 2011 and then immediately brought an asylum and humanitarian protection claim in Glasgow. She had been trafficked to the United Kingdom and it is common ground that she had been sexually abused by her trafficker.

4.

The Secretary of State refused her asylum claim in September 2011. The essence of her case for asylum was that from the age of 17 she had been sexually abused by her father. She had had a child by her father. He died in February 2011 by poison administered by her half-brother, when they discovered that her father was going to give the appellant some plots of land in Uganda and they were intent on killing her too. On the appellant’s appeal against the decision of the Secretary of State in November

2011 the Immigration Judge dismissed it and made findings that the case which she had advanced as her reason for having fled Uganda was a bogus story which he rejected in every material respect. The appellant did not challenge at that stage the decision of the Immigration Judge.

5.

There then ensued a long procedural history, which I do not propose to take time setting out in this short judgment, which consisted in essence of attempts to make fresh asylum and human rights claims by the appellant leading to a series of rejections by the Secretary of State. The two most important were the decision of the Secretary of State on 26 November 2012 not to treat her further representations as giving rise to a fresh claim, and a further decision to the same effect in December 2013 not to treat yet further representations as doing so.

6.

The two successive applications to make, in effect, fresh asylum claims may be distinguished in this sense, that the one made in 2012 did not, but the one made in 2013 did, also include a claim under Article 8 in addition to the main claim under Article 3. I will call those two decisions the 2012 decision and the 2013 decision. They were the principal subject of the judicial review challenge which came to be heard by HHJ Heaton.

7.

The essence of the appellant’s case throughout for there being, as it were, a fresh chance to make a full asylum and human rights application has been based on evidence about her medical condition, which tends to show that at times she has had a fragile mental state arising from a moderate, or moderate to severe, depressive disorder and possibly residual symptoms of PTSD, leading her to have suicidal tendencies, such that the risk of suicide would be enhanced if she were forcibly returned to Uganda.

8.

It is said, firstly, that her mental condition was not before the Immigration Judge in 2011 and that a reconsideration of the case which she had advanced afresh now in the light of her knowledge and understanding of her medical condition could stand a reasonable prospect of undermining the Immigration Judge’s view that she had put forward a bogus story. In substance, the point is that if she had then, or rather were now when advancing the same case, been treated as a vulnerable witness, there is a real prospect that her case would be in substance believed.

9.

Secondly, the medical evidence and the medical case is said to give rise to a real prospect of success on a claim that, regardless of the reasons why she fled Uganda in the first place, to return her now in her current condition, or rather in the condition as assessed by the Secretary of State in 2012 and 2013, which are the decisions under challenge, would in any event infringe her Article 3 or Article 8 rights.

10.

The judge rejected the judicial review claims in relation to both the 2012 and 2013 decisions of the Secretary of State. In relation to the 2012 decision, his reasons may be found in paragraphs 60 to 70 of his judgment and may be summarised as follows, namely (i) that the Secretary of State had been entitled to conclude that there was no fresh evidence which disclosed a real possibility that the findings of the Immigration Judge might be undermined if the matter was reheard before a fresh Immigration judge (ii) that the Secretary of State was entitled to conclude that, having regard to the very high threshold for article 3 claims, the material in front of the Secretary of State in 2012 and, in particular, of a report of Dr Turner, which was based upon a very recent examination of the appellant, fell short of satisfying that high threshold, so that there had been no reviewable error on the part of the Secretary of State in rejecting the fresh application.

11.

As I have said, no Article 8 claim was made in connection with that application. In relation to the 2013 decision, the judge concluded that the further representations and fresh evidence upon which it had been based did not begin, as he said, to reach the high threshold required in respect of Article 3 or Article 8. He said that the psychiatric report, which included a further letter from Dr Turner, which had been prepared in March 2013, was based upon a much earlier examination of the appellant which was by then effectively out of date, bearing in mind that she had been out of detention for some time by then, and he said that there had been no further examination prior to Dr Turner’s letter of March 2013. He concluded:

“The other information as to the claimant’s medical condition is either old or from a non-medical source or, in some cases, both.” Altogether he concluded that the Secretary of State was not merely entitled to conclude that the medical material and the fresh representations fell short of the standard for Article 3 or Article 8, but indeed right to have done so.

12.

In the oral application today Ms Naik has in very helpful oral submissions, for which I gave her at least twice the usual time, really based her case under three main headings. The first is what I will call the vulnerable witness heading, namely that if the appellant’s case were re-examined by an Immigration Judge aware that she was, or could be said to be, a vulnerable witness, there is a real prospect that a different outcome would have ensued. Secondly, that the 2012 decision simply wrongly failed to reflect that the risk of suicide upon which Dr Turner had reported was sufficient to trigger Article 3. In relation to the 2013 decision, her main case was that the lower threshold, which she submitted was applicable under Article 8, was surmounted by the

totality of the evidence then before the Secretary of State, including the earlier 2012 report of Dr Turner, which, she submitted, the Secretary of State had not fully taken into account.

13.

I will take each of those main submissions in turn. I accept in principle that there may be occasions where the lack of an apprehension that a witness is vulnerable may undermine the basis upon which an Immigration judge decides that that person’s evidence lacks credibility; but in my judgment this was not one of those occasions and it is not seriously arguable that it was. It was common ground before the Immigration Judge that the appellant had been sexually abused while being trafficked to the United Kingdom, but it is fair to say that the Immigration Judge did not have in front of him anything like Dr Turner’s report about her medical condition. But, having carefully considered the reasoning of the Immigration Judge for rejecting the appellant’s evidential case as incredible, it does not seem to me that there is any kind of real prospect that his conclusion would be undermined by treating her in accordance with the Joint Presidential Guideline (number 2) of 2010 as a vulnerable witness.

14.

I should start by saying that the hearing before the Immigration Judge was not one in which the appellant was cross-examined, whether in a hostile manner or otherwise. Her evidence consisted of a witness statement which she amplified during the hearing and it may have been further amplified by questions either from her own representative or from the tribunal.

15.

The reasons why the Immigration Judge rejected her evidence as incredible were, firstly, that it was inherently incredible; it raised a large number of questions which the appellant had not been able to address in any way in her written or oral evidence.

Secondly, it was based upon the Immigration Judge’s conclusion that supporting documents upon which the appellant relied, such as documents about land ownership and the reasons for her father’s death by alleged poisoning, were inherently suspicious in their appearance and looked as if they were contrived. Generally speaking, the Immigration Judge’s reasoning was based upon objective considerations about the incredibility of her case, rather than upon any subjective perception of whether she performed well or poorly in the witness box. So, for those reasons, I do not accept that Ms Naik’s first submission discloses a real prospect of success.

16.

As to the 2012 decision, Ms Naik submitted that there would be cases where a risk of suicide could qualify, notwithstanding the very high threshold under Article 3, for example, where it could be shown that it was the removal itself which gave rise to the risk. But in this case a careful reading of Dr Turner’s report, which was before the Secretary of State when she made the 2012 decision, discloses a medical opinion not that her removal itself would have a dramatic effect on the risk in any direct sense, but that she had suicidal tendencies while in the United Kingdom; this may have been a relatively longstanding condition; it was a condition which Dr Turner expected would be likely to continue; and his reason for concluding that the risk would be increased if she were to be removed to Uganda was nothing to do with the removal itself but because of his perception that the care which she would receive in Uganda, whether direct medical care or care in the community, would be likely to be less efficacious than care for that same condition if provided in this country.

17.

If analysed in that way, it is I think quite clear that the judge’s conclusion that the Secretary of State was entitled to conclude that Dr Turner’s evidence did not bring this

case anywhere near the very high Article 3 threshold was one which the Secretary of State was entitled to come to without making any error of law or acting irrationally.

18.

As for Ms Naik’s case in relation to the 2013 decision, again I accept that there may be cases where considerations of healthcare or care in the community may form part of a patchwork which, taken together, constitutes an established private or social life in the United Kingdom so as to give rise at least to the consideration of an Article 8 case. But where, as it seems to me here, the whole of the Article 8 case consists essentially of a perception that an applicant would either be deprived of care for a medical condition, or provided less adequately with care for a medical condition, in her country of origin rather than this country, it seems to me, for the reasons given by Beatson LJ in paragraph 3 of his written reasons for refusing permission, that this is not a case in which the additional reliance upon Article 8 really adds anything to the reliance upon Article 3. I shall not spell out Beatson’s LJ detailed reasons for that conclusion as they are in his written decision, save to say that having heard Ms Naik’s able submissions I have to say that I agree with them.

19. So having considered, I hope with not undue brevity, all of Ms Naik’s submissions, it seems to me that no real prospect of success is disclosed on a full appeal against the judge’s refusal of judicial review. Although anyone would have, as I have, great sympathy with the appellant’s predicament, this is not a case where there is a compelling reason for giving permission to appeal, and so, in all the circumstances, I must dismiss this application for permission.

Order: Application refused

Case No: C5/2015/0732 Neutral Citation Number: [2016] EWCA Civ 311 IN THE COURT OF APPEAL (QUEEN’S BENCH DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) (LORD JUSTICE UNDERHILL) Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 24th February 2016 Before: MR JUSTICE MOYLAN ——————–Between: SY (INDIA) Applicant - and SECRETARY OF STATE FOR THE HOME DEPARTMENT ——————–DAR Transcript of WordWave International Limited Trading as DTI Global 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 Official Shorthand Writers to the Court ——————–The Applicant appeared in person The Respondent did not appear and was not represented ——————–Judgment (Approved)

Respondent

MR JUSTICE MOYLAN:

1.

This is a renewed application for permission to appeal, it having been refused on paper by Underhill LJ. The proposed appellant, Mr Surresh Yeddu, has appeared in person today and made additional submissions, to which I will refer in a moment. Given the nature of those submissions I propose to make clear, at the outset of this judgment, that I am not reconsidering the decision made by the Secretary of State for the Home Department as to whether or not Mr Yeddu should be given permission to remain in this country.

2.

This is a second appeal. The application is for permission to appeal the decision of the Upper Tribunal judge. I can only grant permission if the appeal raises an important point of principle or practice or if there is some other compelling reason for the Court of Appeal to hear it.

3.

The applicant’s application for leave to remain as a Tier 1 (General) Migrant was rejected on 9 December 2013 on the grounds that the evidence provided did not show sufficient funds and also because the Secretary of State was satisfied that a bank letter, provided by the applicant in support of his application, was not genuine.

The

application was found not to meet the requirements of the Immigration Rules.

4.

The notice of appeal from that determination states simply, and baldly, that the decision was not in accordance with the Immigration Rules and that the decision was unlawful. Those grounds were stated without elaboration. At the hearing on 25 April 2014, before the First-tier Tribunal, the applicant first asked for an adjournment. A previous application for an adjournment had been made on his behalf by letter dated 23

April and had been rejected. The application made at the hearing for an adjournment was also rejected. The substantive appeal was rejected. The judge considered that the application had been correctly refused under the Immigration Rules and that the applicant had dishonestly made a false representation.

5.

The appellant was given permission to appeal to the Upper Tribunal on the basis that the First-tier Tribunal judge had arguably misdirected himself in law by failing to consider the discretionary nature of a decision under the relevant paragraph of the Immigration Rules.

6.

The appeal was determined by Judge Perkins on 22 October 2014 and was dismissed. He found that the applicant had had ample time to prepare his case, so that the First-tier Tribunal judge was right to dismiss the application for an adjournment. He also found no error of law in the judge’s decision that the accounts did not show sufficient funds. Additionally, the judge had been entitled to find, on the evidence, that the letter was false. Judge Perkins refused to admit a new letter put forward by the applicant from the bank because it had only been disclosed on the morning of the hearing, precluding any further proper inquiries.

7.

There are five grounds of appeal. First, that the First-tier Tribunal judge was wrong not to adjourn the hearing. Secondly, that the judge had applied the wrong immigration rule and also the wrong burden and standard of proof. Thirdly, that the Upper Tribunal Judge was wrong not to find an error of law. Fourthly, the Upper Tribunal judge should have admitted the new evidence. Fifthly, a general ground, that there are good reasons for the grant of permission to appeal.

8.

In his succinct and clear submissions today Mr Yeddu has provided four points in support of his application for permission to appeal. First, the refusal of leave to remain was based on a shortfall of £5.00 for five days. I point out, immediately, that it was not only because of a shortfall of funds but also because of the conclusion that the bank letter was false. Secondly, and this relates to the letter provided by the applicant, when the Home Office called the bank in India there was a new person there who was not able to provide the proper information. Thirdly, the applicant himself called the bank and he brought positive evidence to the court. It was late because he had not been able to go to India and could only seek to obtain the evidence by telephone. Fourthly, the applicant urges upon me that he is now very integrated into life here and is working as a civil engineer mainly dealing with flood related matters.

9.

I propose to address the arguments advanced by the applicant by reference to the grounds of appeal. As to the first, I agree with Underhill LJ that the First-tier Tribunal judge was entitled to decide not to adjourn the hearing. In my view, there is no prospect of the Court of Appeal being persuaded that this was wrong. As to the second ground, it was submitted before Judge Perkins that the evidence was not sufficient to justify the Secretary of State concluding that the bank letter was false. References were made to the burden and standard of proof. I again agree with Underhill LJ that the First-tier judge’s finding that the document was false was not an error of law. He was entitled to find on the evidence that the respondent had proved that fact. Ground 3 is a repetition of ground 2. As to ground 4, it was well within Judge Perkins’ discretion not to admit the new evidence given its very late production. Ground 5 adds nothing.

10.

Having carefully considered the applicant’s grounds of appeal and the additional points made by him in the course of his submissions today, I am satisfied that permission to

appeal should not be granted. There is no real prospect of the appeal being successful. In my judgment, no important point of principle or practice is raised. Accordingly, I refuse the application for permission to appeal the Upper Tribunal’s decision.

Order: Application refused

Case No: C4/2015/0556 Neutral Citation Number: [2016] EWCA Civ 312 IN THE COURT OF APPEAL (QUEEN’S BENCH DIVISION) ON APPEAL FROM THE HIGH COURT, ADMINISTRATIVE COURT (SIR STEPHEN SILBER (SITTING AS A HIGH COURT JUDGE) Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 25 February 2016 Before: LORD JUSTICE BEATSON ——————–Between: THE QUEEN ON THE APPLICATION OF ZS (AFGHANISTAN)

Applicant

- and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

——————–DAR Transcript of WordWave International Limited Trading as DTI Global 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 Official Shorthand Writers to the Court ——————–MS SONALI NAIK (instructed by Duncan Lewis) appeared on behalf of the Applicant The Respondent did not appear and was not represented ——————–Judgment (Approved)

LORD JUSTICE BEATSON:

1.

This is the renewed application by Mr Zargul SAfi, now aged 33, who will not be anonymised as he has been hitherto, for permission to appeal the order of Sir Stephen Silber dated 27 January 2015 dismissing his applications for judicial review of the Secretary of State’s decisions on 22 May 2012 and 6 February 2014 refusing him leave to remain.

2.

At the core of the submissions made on behalf of Mr Safi by Ms Sonali Naik is that the Secretary of State acted unlawfully or unreasonably when considering his case because she did not consider whether he should have been given, at the date of the original decision refusing him asylum on 10 April 2002 or thereafter during the consideration of his case, exceptional leave to remain under a policy relating to Afghan citizens which was promulgated in September 2008 as a result of the decision in RS v SSHD [2007] EWCA Civ 546 and withdrawn in December 2010, because she had concluded in 2002 that he was not an Afghan national. She so concluded because, at his screening interview, he was unable to provide accurate information in respect of the majority of questions he was asked about his knowledge of Afghanistan or to explain why, if he was an Afghan national, he was not able to do so.

3.

The policy to which I have referred was to give four years ELR to Afghan nationals on the basis that they could not safely be returned to Afghanistan. The policy was at first amended to restrict it to one year’s ELR and the original policy was withdrawn on 11 July 2002. The RS policy to which I have referred, which was introduced in 2008, dealt with failed asylum claims, which may have lost the benefit of the earlier policy,

which was in force at the date of the refusal of asylum as a result of delay in dealing with their cases.

4.

It is not necessary to set out the complicated history save to say that, although the Firsttier Tribunal dismissed the applicant’s appeal and found his account incredible, it concluded that he was an Afghan national born in Peshawar, Pakistan in a refugee camp, where many thousands of Afghans were living at the time.

5.

The immigration judge stated that he found this “as his family are Afghan and he is not recognised as a Pakistani national, notwithstanding that he was born there”. The judge stated that the applicant has never lived in Afghanistan and came to this country from Peshawar with the assistance of an agent. There was no appeal against that decision but there were a number of representations which were submitted as constituting a fresh asylum claim. These were refused in a series of letters on 11 November 2008, 1 October 2010 and, after a letter dated 1 February 2011 stating that the applicant had no basis to stay in the United Kingdom and should leave without delay, in the first of the decisions challenged on 22 May 2012.

6.

In a letter dated 20 September 2011 from the applicant’s solicitors, it was stated inter alia on behalf of the applicant that the solicitors were very concerned that he was not granted ELR in 2002, and they urged the Secretary of State to reconsider the matter and grant indefinite leave in accordance with the Home Office policy to which I have referred.

7.

There was, Ms Naik informs me, no response to that letter, and indeed there was no response to it until after these proceedings were instituted and after Singh J had, on 5

June 2013, granted permission to challenge a decision of the Secretary of State’s in 2012 refusing to regard representations as a fresh claim.

8.

On 6 February 2014 the Secretary of State stated that, although the applicant was refused asylum within the four-year policy timeframe, according to the “reasons for refusal” letter his nationality was disputed. The letter then refers to the immigration judge’s decision and quotes paragraph 39, which I have summarised with the finding that the applicant is an Afghan national and the reason for it.

9.

Ms Naik criticises the final paragraph of the letter as mistaken because it states that the immigration judge concluded that the applicant was a national of Afghanistan as he provided evidence in the form of country knowledge at appeal, but the appeal was dismissed and, as at that time, the Afghan country policies were discontinued and he was not entitled to the grant of leave.

10.

The Secretary of State’s February letter was sent after the applicant had failed to respond to offers by the Secretary of State to withdraw the 2010 and 2012 decisions and to consider the further representations and put the applicant in the position in which he would have been had he been successful in his applications by treating the submissions as a fresh claim.

11.

The hearing before Sir Stephen Silber was the substantive hearing of the challenge to the 2012 decision and, as a result of an amendment, a rolled up hearing of a challenge to the 6 February 2014 decision. Ms Naik acknowledges that the judgment is a full one. Indeed it is careful, well structured and reviews the authorities as they stood at the time, including a number of the cases which ended up in the Supreme Court in its recent decision in TN (Afghanistan) & Ors [2015] UKSC 40. She, however, criticises

him for not, save in paragraph 9 of the judgment and possibly paragraph 96, grappling with the core of her case, which is not that this applicant is entitled to receive status but that the Secretary of State has failed to exercise her discretion to consider whether the former policy should be taken into account, in the way that the Supreme Court did not totally preclude in the TN (Afghanistan) cases.

12.

Ms Naik submits that effectively the Secretary of State should have considered the policy then in force for Afghan nationals at the time of the asylum decision in 2002. The Secretary of State did not respond to the submissions raising the RS point in 2011 and the letter dated 2 February 2014 gets the position wrong in its assessment of the reason that the immigration judge concluded that the applicant is an Afghan national. Nowhere has the Secretary of State considered whether she should regard the applicant as one entitled to the benefit of the RS policy for failed asylum claims, which have lost the benefit of the ELR policy as a result of delay.

13.

The judge’s reasons are set out in paragraphs 94 to 97 of his judgment. They are essentially that departures from the basic rule that decisions on asylum had to be considered on the basis of the facts and circumstances prevailing at the time of the hearing before the specialist tribunal were very rare indeed.

It has to involve

exceptional facts, and delay in advancing a case would be fatal.

14.

The judge concluded that the facts in this case were not exceptional because the reason the applicant was not regarded as an Afghan citizen in 2002 was because he was unable to provide accurate information, as I have described, and the caseworker was entitled, on the evidence before him, to conclude that he was not an Afghan national. That decision has not been challenged and was not unlawful. Ms Naik submits that the

focus on the need for underlying illegality is wrong in the light of the judgment of Laws LJ in AA (Afghanistan).

15.

The judge secondly, in paragraph 96, concluded that it could not be said that the only way the Secretary of State could have exercised her discretion would have been by granting indefinite leave to remain to the applicant if she considered the circumstances and consequences of her decision in April 2002. Thirdly, he considered this was a case in which there was a delay of some 18 months after the letter dated 1 February 2011 stating that the applicant had no basis to stay in the United Kingdom and should leave without delay.

16.

The focus of Ms Naik’s written submissions was the impact of the decision of the Supreme Court in the case of TN (Afghanistan) & Ors and what it said about the Ravichandran principle [1996] Imm App Reports 97 and the case of Rashid [2005] EWCA Civ 744. She accepted that the general rule is that decision-making should be made by reference to the position at the time of the decision rather than by reference to the factual situation in the past. She, however, submitted that while that was true in relation to asylum appeals, where the issue is not whether a person is entitled to asylum but whether the Secretary of State had exercised the discretion lawfully or had omitted a mandatory relevant consideration, whether (as in this case) by mistake or for some other reason, the position is different: the issue is the exercise of discretion.

17.

She relied on the statement by Lord Toulson, at paragraph 72, that it is not proper for the court to require the Secretary of State to exercise a discretion by granting unconditional leave to a person who would not be entitled to such relief under current policy, but that the Secretary of State should take into account the past error when making the decision, and this had not been done in the case of Mr Safi.

18.

In oral submissions Ms Naik focused on the other grounds and drew the court’s attention to the decision in Moussaoui [2016] EWCA Civ 50, in which (at paragraphs 13 and 14) the Master of the Rolls dealt with the error of fact ground, and also referred (at paragraphs 24 and 25) to the judgment in RS and Carnwath LJ’s emphasis on the fact that the proper sphere in a consideration of administrative mistakes is not that they are mistakes, even serious mistakes, but whether they are illegal.

19.

At bottom, Ms Naik’s case is that the Secretary of State has not considered the extent to which the historic circumstances – the fact that the applicability of the policy to Mr Safi was not considered in 2002 – is a consideration in the present exercise of her discretion. She does not suggest that it is a “knockout blow”, but submits that the judge erred in not finding that the failure to consider this question was an error of law or other public law flaw.

20.

Notwithstanding the attractive way Mr Naik has presented her submissions, I have concluded that this is not a case in which permission should be granted. In her oral submissions she departed from the core of the written submissions, that this case is based on an allegation of an historically illegal decision: see the reference to past errors and unlawful decisions in paragraph 17 of her advocate’s statement, the similar words in paragraph 11 of her supplementary skeleton argument and the submissions that the cases of SHQ and AA are distinct because in the latter there was no historically illegal decision). She focuses now on an illegality resulting from a failure to consider the exercise of discretion, at any rate until the decision in 2014, and then the flaw which I have described.

21.

I have carefully considered the judgment below, which I have said was a full one. The judge was entitled to conclude that the decision made in April 2002 was not unlawful in light of the material and the information provided by the applicant. As to the question of an historical error and whether the failure to exercise the discretion gives rise to an arguable public law illegality, the judge accepted that it was arguable: he gave permission. The judge, however, rejected the argument that it was illegal.

22.

Guidance as to the approach can be obtained from the decision of the Court of Appeal in E v SSHD [2004] EWCA Civ 49.

In that case it was recognised that the

misunderstanding or ignorance of an established or relevant fact or acting on an incorrect basis of fact was a ground for judicial review. It was stated that the ordinary requirements are (see paragraph 66 per Carnwath LJ) that the mistake of fact must give rise to unfairness and that there are four ordinary requirements for a finding of unfairness. First, a mistake as to existing fact. Secondly, the fact must have been established in the sense that it was uncontentious and objectively verifiable. Thirdly, the applicant or his advisers must not have been responsible for the mistake. Fourthly, the mistake must have played a material part in the reasoning of the decision-maker.

23.

In this case, although the fact or evidence is now seen to be uncontentious and objectively verifiable, it is important to note that what arguably puts it into this category was the decision of the tribunal believing this applicant rather than any objective reality. Moreover, it was the fact that the applicant’s case to the Secretary of State and to the tribunal that he was born in Pakistan but went with his family to Afghanistan in 1997, when he was 14 years old, and that he feared he would be killed on return to Afghanistan because of his ethnicity, while unable to provide accurate answers in respect of the majority of the questions he was asked about Afghanistan,

that led to the error (see paragraphs 5, 8, 12-21 and 34 of the tribunal decision). His account was found not to be credible, with the finding expressed in very strong terms: “utterly implausible”, “incredible”, and then the finding, which I have set out earlier in this decision, was given.

24.

In these circumstances, I put it to Ms Naik that the “no fault” requirement in E is simply not met. She pointed me to Singh’s J observation when giving permission to challenge the 2012 decision that it may be that the application ultimately transpires to be unmeritorious, not least because the Secretary of State submits the mistake was one solely attributable to the conduct of the applicant himself. At that stage the benefit of the doubt was given to this applicant, but on analysis, although Ms Naik submits that the fault was not solely attributable to the applicant because the Secretary of State should have known when he claimed to be born in Pakistan in an area where thousands of Afghan refugees were located, that he was likely to be an Afghan national. That, in my judgment, is to put far too high a standard on the caseworker dealing with his case. The reason for the mistake was that the applicant chose not to tell the truth and thus to explain why it was he could not give answers about the position in Afghanistan.

25.

I have concluded that it is utterly unarguable that, given the circumstances in which the error in 2002 was made, this is a case in which the only way the Secretary of State could have reasonably exercised her discretion was by granting ELR and then ILR to this applicant.

26.

Finally, although Ms Naik submits that there is no case for defeating this claim on the grounds of delay, after the tribunal made its decision in 2002 accepting his claim to be an Afghan national there was a substantial delay in raising the submission based on the former policy. It was only raised in September 2011, nine months after the RS policy

was withdrawn and a long time after the former policy was withdrawn.

Even

discounting the period between 2002 and February 2011, there was an 18-month delay between February 2011 and the filing of these proceedings.

27.

For all these reasons, I refuse permission for this case to proceed to a full hearing.

Order: Application refused

Case No: C5/2015/0812 Neutral Citation Number: [2016] EWCA Civ 313 IN THE COURT OF APPEAL (QUEEN’S BENCH DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 25 February 2016 Before: LORD JUSTICE FLOYD ——————–Between: AD (PAKISTAN) Applicant - and SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

——————–DAR Transcript of WordWave International Limited Trading as DTI Global 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 Official Shorthand Writers to the Court ——————–Mr Vijay Jagadesham (instructed by Silverdale Solicitors) appeared on behalf of the Applicant The Respondent did not appear and was not represented ——————–Judgment (Approved)

LORD JUSTICE FLOYD: 1.

This is a renewed application for permission to appeal against the decision of Deputy Upper Tribunal Judge Lever, who upheld the determination of First-tier Tribunal Judge Bruce, which in turn dismissed the applicant’s appeal against her removal from the United Kingdom.

2.

The applicant is a 48 year-old national of Pakistan She last entered the UK in 2007. She has previously applied for leave to remain on compassionate grounds but that was refused. She made the present application on 30 July 2013 for leave to remain on human rights grounds outside the rules. By a decision dated 26 December 2013 the respondent decided to remove her from the United Kingdom.

3.

The applicant is the eldest of five children of Mr Mohammed Majid and his wife Abida Begum. The parents are now both British citizens, having migrated to the United Kingdom many years ago. Other members live in the UK. Both parents are very unwell.

The applicant provides constant care for her parents without significant

assistance from her siblings.

4.

The applicant’s case is that it would contravene her article 8 rights to family and private life to remove her to Pakistan. The Fist-tier Tribunal judge did find that the applicant shared a family life with her parents and that there was a sufficient dependency in the present case to show that family life was present, despite the maturity of the applicant. That was principally because of the bond which had been cemented between the applicant and her father since her arrival in the United Kingdom in 2007.

5.

Mr Majid is too unwell to travel to Pakistan and it is likely that if the applicant was removed he would not see his daughter again. The judge concluded that the removal of the applicant constituted an interference with family life of sufficient severity to engage article 8.

6.

The critical issue for the applicant was therefore the proportionality of her removal. The First-tier judge found that there were other members of the family, the sons Omar and Yasir, who were able to help with the parents’ care if the applicant could not.

7.

The critical point on which Mr Jagadesham focuses this morning is what the judge said at paragraph 29 of her judgment. She said this:

“I am guided in assessing proportionality by looking at the rules. As I note above, there is no provision under appendix FM for British nationals to bring in a family member or otherwise to care for them. It may however be instructive to consider the requirements for the converse situation, where a carer is already here and it is the person who is requiring the care that is seeking entry. Paragraph E-ECDR 2.4 provides that the latter ‘must as a result of age, illness or disability require long-term personal care to perform everyday tasks’. I do not think it is in dispute that this requirement is met. Paragraph EECDR 2.5 further provides that they ‘must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because (a) it is not available and there is no person in that country who can reasonably provide it, or (b) it is not affordable’. I cannot find that this requirement transposed to this situation would be met. The care that the appellant provides to Mr Majid is no doubt valued, but she is not indispensable; he has two sons in this country, both of whom could assist, and he could of course call upon the greater assistance of the state.”

8.

The judge then goes on in paragraph 30 to consider the emotional impact on the appellant and the wider family of her return to Pakistan, but concludes paragraph 30 by saying “since I have found that his care could be conducted by others it is difficult to

see why this decision is disproportionate”. Mr Jagadesham submits that the very narrow rule to which the judge referred cannot be exhaustive of the article 8 proportionality considerations. He submits in essence that the judge was too strongly influenced by the corresponding rule, which did not apply in any event, and lost sight of the broad duty which he was under to make sure that removal did not disproportionately interfere with the applicant’s article 8 rights.

9.

He goes on to submit in his second ground that the judge, in making certain criticisms, particularly in paragraphs 23 and 30 of the judgment, went beyond what was fair, given that none of these points had been put to the witnesses in question, either by the court or by the respondent, and had not been raised with the applicant’s representatives in argument. The judge concluded at one point in his judgment that he considered that the applicant might be better off going back to living alone in the family home than remaining here.

10.

This is a second appeal and I should not grant permission unless I consider it raises an important point of principle or practice or there is some other compelling reason for granting permission. Having heard Mr Jagadesham this morning, I am satisfied that the two points which he has argued do justify a second appeal. This court has not yet looked at the extent to which the very narrow Immigration Rule on which the judge relied properly reflects the proportionality assessment necessary under article 8. In ZB (Pakistan) v SSHD, 30 July 2009, [2009] EWCA Civ 834, this court considered a much wider rule, albeit against a very different family background, but nevertheless held that there was a margin in which article 8 had a significant impact outside the rules. It would be right, in my judgment, for the full court to consider whether the judge did indeed err by placing the weight she did on the much narrower new rule.

11.

For those reasons I grant permission. Time estimate of one day. The panel should include one judge with expertise in Immigration law.

Order: Application granted

Case No: C5/2014/2060 Neutral Citation Number: [2016] EWCA Civ 357 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM UPPER TRIBUNAL (Immigration and Asylum Chamber) Mr Justice McCloskey and Upper Tribunal Judge Perkins DA001512013 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/04/2016 Before : LADY JUSTICE ARDEN LORD JUSTICE MCFARLANE and LADY JUSTICE MACUR ——————–Between : BL (Jamaica) - and The Secretary of State for the Home Department

Respondent Appellant

—————————————-Alan Payne (instructed by Government Legal Department) for the Appellant Michael Rudd (instructed by J McCarthy Solicitors) for the Respondent Hearing date: 3 February 2016


Judgment

LADY JUSTICE ARDEN:

1.

The central issue on this appeal is whether in its decision dated 6 February 2014 the Upper Tribunal (McCloskey J and UTJ Perkins) (“the UT”) made an error of law in allowing an appeal by BL, a foreign convicted offender aged 31 years and a national of Jamaica, against the order of the First-tier Tribunal dismissing BL’s appeal against the deportation order dated 16 January 2013 made by the Secretary of State under section 32 of the Borders Act 2007.

2.

The issue for the UT was whether the deportation was a proportionate interference with BL’s right to family life under Article 8 of the European Convention on Human Rights (“the Convention”) and thus one of balancing the competing considerations arising in this case. The UT considered that the balance came down firmly against deportation. The key issue, in the view of the UT, was the contribution which BL was making and was likely to make in the future as partner, biological father and father figure in his family unit. In the UT’s judgment, BL’s deportation would: impact disproportionately on the best interests of his children, giving rise to an acute imbalance which the public interest favouring deportation cannot, in this intensely fact-sensitive case, outweigh. (UT Decision [1])

3.

The Secretary of State contends that, in the light of SS (Nigeria) v Secretary of State [2014] 1 WLR 908 and MF (Nigeria) v Secretary of State [2014] 1 WLR 544, the facts could not amount to an acute imbalance. In my judgment, despite the thorough arguments to the contrary presented on BL’s behalf, this contention is correct in law. I consider that this appeal must be allowed. The UT did not follow the holdings of this Court, in the two authorities to which I have referred at the start of this paragraph, as to the weight to be given to the public interest in deportation cases, and focused instead of what outcome would be likely to be in the children’s best interests.

4.

I start by setting out the background as to the reasons for deportation, the UT’s evaluation of the facts, the key provisions of the Immigration Rules, the UT’s directions on the law, the submissions and my conclusions.

WHY THE SECRETARY OF STATE MADE AN ORDER FOR BL TO BE DEPORTED 5.

On 16/17 January 2013 the Secretary of State ordered that BL be deported, rejected BL’s application for leave to remain and decided that BL’s rights to family life were outweighed by the public interest in his deportation. The decision letter stated that the offence of which he had been convicted was serious and that accordingly significant weight had to be given to the question of protecting society against crime. The right to a private life had to give way to this public interest.

6.

The Secretary of State’s decision was based on an examination of BL’s immigration history, his criminal record and the circumstances of his family unit.

7.

Immigration history: BL has had no permission to be in the UK for about the last 15 years. He first entered the UK on 18 December 1999 and was given 6 months leave to

enter as a visitor. Before the expiry of his leave he applied for indefinite leave to remain. This was refused but BL failed to leave the UK. On 14 May 2002 BL was removed from the UK. Three months later he re-entered the UK using a false passport under a different name. BL has been in the UK since that date without leave. 8.

Criminal record: BL has been arrested on several occasions and he has been cautioned. He has also been convicted of a serious criminal offence. He was arrested on 25 July 2001 and 26 March 2002 on suspicion of having committed drug offences and failed to observe his reporting conditions (after being granted temporary release in August 2001). On 8 October 2003 BL was cautioned for possessing crack cocaine. At some point in 2010, BL was arrested and charged with possessing a controlled Class A drug (crack cocaine) with intent to supply. He was remanded in custody. On 1 November 2010 BL pleaded guilty to this offence. He was sentenced to four years’ imprisonment on 10 December 2010. This put him in the category of most serious offender for the purposes of the deportation rules, though at the very bottom end of it.

9.

BL did not offer any mitigation. The offence was committed in Birmingham, not in London where BL lived. He had gone there to commit the offence. The sentencing judge stated in his sentencing remarks: There is one thing to say in your favour and that is that you pleaded guilty. You are entitled to a third discount of the sentence with that and that I shall give you, and the 39 days spent on remand awaiting to be sentenced will count towards the half of the sentence you have to serve before, inevitably, you will be deported. I am not adding to the sentence because you smuggled yourself into this country illegally. I am dealing with you, quite simply, for being in possession of something over 19 grams of that lethal drug, crack cocaine. The Court of Appeal has said that after a trial for an offence like this, very rarely would a sentence of less than six years be imposed. You, however, get credit for your plea. The sentence is four years in custody.

10.

The view of the Secretary of State was that, by “the very nature” of the offence for which BL was convicted, BL had “shown no regard for the impact that these drugs have on the fundamental interests in society…offences involving drugs are offences which have a wide impact on the health and morals of the community at large- both in terms of the deleterious effect on the health of those who take the drugs imported, and in terms of the associated effects of crime and anti-social behaviour that are fostered by such activities.” BL’s offences were “representative of [his] willingness to gain profit from the source of such a negative impact on the community” of the UK.

11.

BL’s family unit: The family unit consists of BL, his partner, KS, and four minor children. BL’s relationship with KS started in 2004 when he was about 18 years old. He has had three children with her (twins, aged 7 years at the date of the deportation decision and another child aged 5 years at the date of the deportation decision).

12.

KS has two other children from a previous relationship (aged 17 and 13 years respectively at the date of the deportation decision).

13.

BL also has a child from a previous partner who was 8 years old at the date of the deportation decision. The Secretary of State did not accept that BL had any family life with her. KS and all the children of BL are British citizens.

14.

BL’s relationship with KS cannot have been continuous, but it was current at the date of the UT’s decision. Moreover, BL’s cohabitation with KS was clearly not continuous. BL was remanded in custody or was in prison or was detained in an immigration centre from about autumn 2010 to October 2013 and between those dates BL did not enjoy family life and his family unit did not enjoy family life with him. This was because, after his release from prison on 31 October 2012, BL was detained under immigration powers. On 18 October 2013, he was released from immigration detention on bail. BL then went to live with the family unit. Between arrest in about October 2010 and release in October 2013, BL did not enjoy any family life.

15.

The Secretary of State took the view that, in view of BL’s conviction to 4 years’ imprisonment, BL had to show exceptional circumstances if he were not to be deported. BL had not done this. The Secretary of State noted that the children were under the care of their mothers and that they were not financially dependent on BL. There was no evidence to suggest that BL’s presence in the UK was required to provide them with safe and effective care or to protect them from maltreatment. Moreover there were no grounds to suggest that the mothers were exceptionally reliant on BL

BL appeals the Secretary of State’s decision to the First-tier Tribunal 16.

BL appealed against the Secretary of State’s decision to the First-tier Tribunal (“FTT”) but on 16 April 2013 FTT dismissed his appeal. BL appealed to the UT. At a separate hearing the UT set aside the FTT’s decision on the grounds of an error of law identified in its handling of this case: we are not concerned with this decision of the UT. On 6 February 2014, following a two-day hearing with evidence, the UT decided to allow the appeal on the grounds summarised above and that decision is the subject of this appeal.

UT’S DECISION (1) UT’s evaluation of the evidence concerning BL’s children 17.

The UT found credible the evidence given by BL, KS and KS’s eldest son. The eldest son spoke of the difference between the home with BL and in his absence. In particular the son noted that KS could not manage her money and drank more than was good for her. The UT inferred that without BL the family would descend into poverty and require the support of social services.

18.

The UT held that BL was a responsible father figure prior to his arrest in 2010, making a contribution to the family’s finances. According to BL he had borrowed £2,000 to pay for his mother’s funeral in the US in 2008. Even though BL had not put this explanation for the offence forward to the sentencing judge, the UT accepted this evidence. The Secretary of State has not argued on this appeal that the UT’s acceptance of BL’s evidence on this point was an error of law and so we have not heard BL’s submissions on this point, but I note that that the UT did not set out the remarks of the sentencing judge, that their assessment of BL’s explanation is arguably

inconsistent with their finding that BL was using the proceeds of his illegal activity to help finance the family unit (UT Decision 9(v)), and that on this appeal BL did not rely on the explanation in the Pre-Sentence Report beyond informing us that it was before the UT. 19.

The family visited BL in prison. BL had taught the youngest to read and write.

20.

The family’s morale had improved since his BL’s release from prison. The UT considered that BL’s presence had significantly contributed to KS’s ability to obtain care qualifications and her eldest son’s academic success. (2) UT’s evaluation of risk of harm posed by BL

21.

Although BL did not offer any mitigation when he was sentenced, his Probation Service Pre-Sentence Report (“Pre-Sentence Report”) stated that BL had committed the offence “in circumstances where he was vulnerable in the wake of the death of his mother and needed to both settle certain debts and provide for his family” (UT Decision, [9(i)]).

22.

The UT considered that BL had made “significant strides” in self-rehabilitation and that he presented as a “maturing, increasingly responsible member of society.”

23.

The UT held that “the relevant evidence clearly supports the finding that the risk of [BL] causing serious harm in the future is low” unless there were a change in circumstances (UT Decision, [9(iii)]). This had also been the view in the pre-sentence report

RELEVANT PROVISIONS OF THE IMMIGRATION RULES 24.

Paras 396 to 399A are the relevant provisions of the Immigration Rules in this case. They provide: 396.

Where a person is liable to deportation the presumption shall be that the public interest requires deportation. It is in the public interest to deport where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007.

397.

A deportation order will not be made if the person’s removal pursuant to the order would be contrary to the UK’s obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed.

398.

Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention , and

(a)

the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

(b)

the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or

©

the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,

the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.

25.

Paras 399 and 399A do not apply in BL’s case. However, those paras are relevant as showing what circumstances do not of themselves amount to exceptional circumstances in the case of an offender who, as in BL’s case, falls within para 398(a).

26.

Paras 399 and 399A provide:

399.

This paragraph applies where paragraph 398 (b) or © applies… if – (a)

the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and (i)

the child is a British Citizen; or

(ii)

the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision;

and in either case (a) it would not be reasonable to expect the child to leave the UK; and (b) there

is no other family member who is able to care for the child in the UK; or (b)

the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, or in the UK with refugee leave or humanitarian protection, and (i)

the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and

(ii)

there are insurmountable obstacles to family life with that partner outside the UK.

399A. This paragraph applies where paragraph 398(b) or © applies if – (a)

the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK; or

(b)

the person is aged 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social , cultural or fail) with the country to which he would have to go if required to leave the UK.

SUMMARY OF UT’S DIRECTIONS ON THE LAW (i) on the weight to be given to the public interest in relation to the deportation of foreign criminals 27.

In deciding whether deportation is a proportionate interference with family life for the purposes of Article 8(2), great weight is to be given to the public interest. This is a

single stage exercise unless the case in not within paras 399 or 399A, when there is a two-stage approach and the court has to find exceptional circumstances to outweigh the public interest in deportation: MF (Nigeria) v SSHD. Paras 398 to 399A were a complete code and the exceptional circumstances to be considered in the balancing exercise between the private life of the person to be deported and the public interest involved the application of a proportionality test as required by the jurisprudence of the European Court of Human Rights. 28.

Under sections 32 and 33 of the Borders Act 2007, the Secretary of State had to make a deportation order against a foreign criminal where the Secretary of State deemed the deportation to be conducive to the public good, but this did not apply where the removal would breach a person’s Convention rights.

29.

Powerful weight was to be attributed to the Parliamentary intervention in the field of deportation. The 2007 Act attaches great weight to the deportation of foreign criminals: see per Laws LJ, with whom Black LJ and Mann J agreed, in SS (Nigeria) v SSHD.

(ii) on the relationship between Article 8 and section 55 of the 2009 Act 30.

Section 55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”) requires the Secretary of State when making immigration decisions to have regard to the need to safeguard and promote the welfare of children in the UK. Therefore the Secretary of State has to have regard to the best interests of the child when making her proportionality assessment under Article 8(2).

31.

However, while the best interests of the child must be a primary consideration, it need not always be the only primary consideration: Zoumbas v Secretary of State for the Home Department [2013] 1 WLR 3690.

UT’S APPLICATION OF THE LAW TO THE FACTS OF THE CASE 32.

The UT stated on more than one occasion that they found this a difficult case.

33.

The deportation of the Appellant would inevitably interfere with the right to respect for the private and family lives of all members of the family concerned. This interference would be most acute in relation to the Appellant, his partner and their three biological children. The UT considered that the disruption to and destabilisation of the family unit would be immense. [A]ny contact thereafter would be of a limited inadequate and progressively intermittent kind [24].

34.

This profound interference with family life and the infringement of the best interests of the three children had to be balanced against the potent public interest in play. The two main factors which point in favour of deportation were: (1) BL’s flouting of the immigration laws and (2) his criminal record. On paper BL was therefore a strong candidate for deportation [25].

35.

However, the public interest had to yield to the best interests of the children (protected by s.55 of the 2009 Act) and rights enjoyed by the whole family under Article 8 of the Convention. The core reasoning of the UT was as follows:

The best interests of the affected children will undeniably be served, promoted and fortified if [BL] is not deported. …[W]e conclude that there are particularly compelling reasons sufficient to outweigh the public interest in deportation. ...[w]e are mindful of the central importance of the family in British society. Strong and stable families make important contributions to the maintenance of a prosperous and law abiding society. …The effect of our main conclusion is that the family unit under scrutiny in this case will be fortified and stabilised. The alternative conclusion would result in the family unit being severely weakened and destabilised… [26].

WHY THE SECRETARY OF STATE CONTENDS THAT THE UT ERRED 36.

Mr Alan Payne, for the Secretary of State, submits that the UT failed to have regard to the fact that Parliament, through para 398(a) of the Immigration Rules, has identified a particularly weighty public interest in deporting alien criminals who have committed serious crimes, namely crimes attracting a sentence of at least 4 years.

37.

Moreover, Parliament also attached weight to the need to deter others and the need to express society’s revulsion at the kind of criminality in question, which the UT had failed to address. These matters had to be taken into account in any proportionality assessment under Article 8 in a deportation case: SE (Zimbabwe) v SSHD [2014] EWCA Civ 256, where this court agreed with the analysis of Mr Raza Husain QC that weighing up the offence of a person to be deported as part of the proportionality assessment under Article 8, the court had to consider (i) the risk of re-offending, (ii) the need to deter others and (iii) the need to express society’s revulsion at the criminality.

38.

The UT also, on Mr Payne’s submission, failed to weigh in the balance either BL’s immigration history or the precarious nature of BL’s family life. Mr Payne submits that the UT did not make adequate findings about BL’s family life.

39.

Moreover, on Mr Payne’s submission, the UT failed to afford a sufficient margin of appreciation to the Secretary of State’s assessment of the public interest (SS (Nigeria) v SSHD at [47]) or reached a conclusion that was in all the circumstances perverse.

40.

Mr Payne contends that BL did not even meet the criteria for those who have committed less serious crimes, since some of the children were under 7 years and there was no investigation into whether there was another carer who could look after the children if BL was deported. It followed that the UT therefore attached inadequate weight to the public interest in deportation. Alternatively, the UT applied an overly generous threshold in assessing exceptional circumstances.

41.

Mr Payne submits that the UT did not properly apply SS (Nigeria) or MF (Nigeria). The structure of the decision should have been to ask: are there any exceptional circumstances leading to another outcome?

SUBMISSIONS MADE ON BL’S BEHALF

42.

Mr Michael Rudd, for BL, sums up the various grounds of appeal as no more than a disagreement with the conclusions of the UT.

43.

Mr Rudd submits that, contrary to the Secretary of State’s submissions, the UT treated the public interest in deporting criminals convicted of offences that fall under para 398 as particularly weighty. He points to the fact that numerous references to the public interest in deportation are found throughout the UT decision. The UT’s detailed exposition of the law relating to Article 8 and exceptionality shows that the UT were fully aware that paras 399 and 399A did not apply and that they were considering the exceptionality test under para 398. The UT did not have to explicitly refer to the need for exceptionality.

44.

Furthermore, submits Mr Rudd, the UT were fully aware of BL’s immigration history and had referred to it; as such the UT gave this factor appropriate weight. The UT considered the appeal extremely carefully, describing the appeal as “challenging and acutely fact sensitive.”

45.

There was, submits Mr Rudd, no need for the UT to refer to the need to deter or reflect public revulsion at the crime committed by BL. That was inherent in the public interest in deportation.

46.

On the question of the adequacy of the UT’s findings, Mr Rudd submits that the UT was aware of the legal tests to be applied in respect of family life. They made full findings and apply the law correctly. They were aware that BL’s relationship with KS had begun when BL’s immigration status was precarious.

47.

As to the Secretary of State’s complaint that the UT did not address the treatment of the children whilst BL was in custody and why social services could not adequately address the situation, Mr. Rudd submits that the Secretary of State did not raise these matters before the UT and could not now rely on the failure to deal with these matters as criticisms of the UT. In any event, “matters of unruly children and children growing up without a father or father figure” were not matters “for the already overstretched social services.”

48.

Mr Rudd contends that the UT recognised that BL was a strong candidate for deportation and the decision as a whole disclosed no error of law.

CONCLUSIONS ON THE SUBMISSIONS ON THIS APPEAL

49.

The key issue that the UT had to resolve was how to balance BL’s Article 8 rights, where children are involved, with the public interest in deportation. On this issue, the UT were unquestionably right that the two crucial authorities were MF (Nigeria) and SS (Nigeria). The UT correctly recognised that, while the children’s best interests are a primary consideration, they need not be the, or the sole, primary consideration.

50.

But in their analysis of SS (Nigeria), the UT failed to refer to an important holding of this Court on balancing the best interests of the children with the public interest in deportation. As this Court put it in SS (Nigeria), the interests of the children are a

substantial consideration. But this Court went on to give further valuable guidance as to how the competing interests of the children and the public interest in deportation were to be balanced. This Court held that the children’s interests will have to be stronger the more pressing the nature of the public interest in the parent’s removal. The public interest will be greater the more serious the offence: see SS (Nigeria) at [47]. Moreover, the courts have to respect the view of the legislature on the pressing nature of the offence particularly since it reflected policy in the area of moral and political judgment: see SS (Nigeria) at [52]. The children’s best interests have to be weighed against other relevant considerations on that basis. In short, as applied to this case, it is not the function of the balancing exercise to “promote” or “fortify” their interests (see [35] above), but to weigh them appropriately in the balance. 51.

Failure to have regard to the holdings in SS(Nigeria) led the UT into error because, having established what the children’s best interests required, they failed to go on and explain why their interests were strong enough to displace the public interest in deportation. The public interest is particularly pressing in this case because BL, with his four year sentence, cannot not bring himself within paras 399 and 399A. Moreover, since such a person cannot claim under those paras, it is clear that he must be able to show something over and above the requirements of those paras.

52.

The UT did not consider whether BL could meet the requirements of para 399, let alone meet a higher case. Leaving aside the fact that only three of his children were of the requisite age, the UT made no sufficient inquiry into whether there was any other family member who could be able to care for his children. The obvious candidate was KS in the case of the children in the family unit.

53.

What the UT did in the course of their detailed and no doubt conscientious decision was to accept KS’s son’s evidence that KS could not manage her money and drank more that was good for her and made the inference that without BL the family would descend into poverty and require the support of social services. As against this, however, KS had looked after the family while BL was in prison or immigration detention and the UT had not made any findings that the family had then descended into poverty or required the support of social services, or that if that were to happen, there would not be adequate support services for these children. The UT were entitled to work on the basis that the social services would perform their duties under the law and, contrary to the submission of Mr Rudd, the UT was not bound in these circumstances to regard the role of the social services as irrelevant. The Secretary of State had made the point in the decision letter that there was no satisfactory evidence that KS had not coped with the children’s upbringing in BL’s absence and so the UT were aware that this point was in issue. KS’s son’s evidence was an insufficient evidential basis for the UT’s conclusion on this point. His evidence was in reality uncorroborated and self-serving hearsay on this issue.

54.

I accept Mr Payne’s submission that the starting point for the UT should have been to ask: are there any exceptional circumstances in this case which should lead to the conclusion that BL should not be deported? This is what paras 398 to 399A of the Immigration Rules require, and MF (Nigeria) makes it clear that these provisions are a complete code. I accept also as Mr Rudd submits that the UT made the point when directing themselves as to the law in their decision that the test was one of exceptionality, but there is no trace of the test of exceptionality – or anything equivalent - in the reasoning of the UT on the case.

55.

Not having started with the relevant question, the UT gave no weight to the evaluation of the Secretary of State on the question of deportation or to the fact that Parliament considered that exceptional circumstances had to be shown. Moreover, the circumstances of BL’s family are not exceptional as is clear from the fact that they would not have been enough if BL had committed a less serious offence.

56.

Mr Rudd is of course correct to say that the UT had a detailed knowledge of all the relevant facts. Their decision is very detailed. But that is not enough to save their decision in the light of the errors of law referred to above. The Secretary of State’s challenge goes beyond a mere disagreement with the UT’s conclusions.

57.

In the circumstances it is not necessary for me to deal with Mr Payne’s submissions on deterrence, public revulsion or the fact that BL’s relationship with KS was formed and existed at a time when BL had no legitimate immigration status in the UK.

58.

For these reasons, I would allow this appeal.

Lord Justice McFarlane 59.

I agree.

Lady Justice Macur 60.

I also agree.

Case No: C5/2013/3442 Neutral Citation Number: [2016] EWCA Civ 358 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM the Upper Tribunal (Immigration and Asylum Chamber) Deputy Upper Tribunal Judge Peart Royal Courts of Justice Strand, London, WC2A 2LL Date: 07/04/2016 Before : LADY JUSTICE RAFFERTY LORD JUSTICE UNDERHILL and LORD JUSTICE SIMON ——————–Between: MILAN GURUNG - and THE ENTRY CLEARANCE OFFICER, NEW DELHI

Appellant Respondent

—————————————-Mr Christian Howells (instructed by N.C. Brothers & Co Solicitors) for the Appellant Mr Tom Richards (instructed by Government Legal Department) for the Respondent Hearing date: 9 December 2015


Judgment

Lord Justice Underhill :

THE FACTS AND THE PROCEDURAL HISTORY 1.

The Appellant is a national of Nepal, where he was born on 27 October 1987. On 26 September 2009 his father was granted entry clearance to the U.K. for settlement on the basis of his former service as a Gurkha in the British Army, and he came to this country shortly thereafter. The Appellant and his mother had in the meantime applied for entry clearance to settle here with him. The Appellant was at that point aged 21. He is his parents’ only son, though they have two daughters.

2.

The Appellant’s mother’s application for entry clearance was accepted, on 27 April 2010, though she did not leave Nepal straightaway. His own application was refused by a decision dated 16 June 2010. The reasoning of the Entry Clearance Officer (“ECO”) can be summarised as follows: (1)

He found that the Appellant did not qualify under the Immigration Rules. Since no issue now arises about that aspect of his decision I need not set out his reasons.

(2)

He then considered the Appellant’s application under what he understood to be the applicable policy for adult dependants of members of the Armed Forces, which he understood to require that “exceptional circumstances” be shown. Again, I need not set out his reasoning in detail. In summary, he found that there was nothing exceptional in the Appellant’s case. He noted that the Appellant was an adult; that he was living with his mother and his aunt in Nepal, and that even if his mother left to join his father he would still be living in the same household with a member of the family; that there was no evidence of any financial dependence on his father; and that he also had grandparents and two uncles in Nepal.

(3)

Finally, he considered whether the Appellant might have a separate claim under article 8 of the European Convention of Human Rights. He held that article 8 was not engaged because the Appellant’s relationship with his parents did not go beyond “the normal emotional ties”. But he went on to say that if he was wrong about that: “… I consider that refusing this application is proportionate in the exercise of firm immigration control. In particular, I note that your parents chose to apply for settlement when you and your sisters were already adults. Even if your parents were to travel to the UK there would be no bar to them returning to Nepal either permanently or temporarily. Family life can continue as it may have done and without interference by this decision.”

3.

The Appellant’s mother left Nepal on 28 July 2010 and has settled in the U.K. with his father. The Appellant continued to live with his aunt in Nepal.

4.

The Appellant appealed to the First-tier Tribunal against the refusal of entry clearance. On 16 December 2010 IJ Elvidge allowed his appeal on the basis that the ECO had failed to apply a more favourable policy, referred to as SET12, which remained in force at the material time. I need not set out its detailed terms. It itemises a number of factors which an ECO should consider, and concludes: “If one or more of the factors listed above are present, the ECO may exercise discretion and grant entry clearance for settlement in the UK.” Judge Elvidge believed that he was entitled to exercise that discretion himself, and he did so by directing that leave to enter for settlement purposes should be granted. Crucially, as regards the issue which we have to decide, he did not deal with the Appellant’s article 8 claim. Presumably he thought that it was unnecessary for him to do so in view of his decision on the policy issue; but the subsequent history of the proceedings is an object lesson in the risks of that approach.

5.

The ECO appealed to the Upper Tribunal. By a determination promulgated on 3 November 2011 UTJ Eshun held that SET12 was indeed the applicable policy and that the ECO had accordingly approached the application on a wrong basis; but she held that Judge Elvidge had been wrong to exercise the discretion himself. She thus allowed the appeal to the extent that the Appellant’s application was remitted to the ECO for reconsideration on the correct basis.

6.

On 12 March 2012 the ECO made a fresh decision pursuant to the order of the Upper Tribunal. (It appears that a different individual was responsible for the decision.) He again refused the Appellant entry clearance. His reasoning can be summarised as follows: (1)

He held that, even applying SET12, the Appellant was not entitled to an exercise of discretion in his favour. I need not set out his reasoning, but I should note that it focused on his circumstances at the time of the original decision: it referred expressly to “the time of your application in 2009” and also referred to him living “in your family home with your mother and auntie” (his mother of course not having left until after the date of the first decision).

(2)

He said that he was obliged to “re-visit” the article 8 claim. He decided that article 8 was not engaged, but also that, even if it was, refusal of the Appellant’s application was not disproportionate. As regards the issue of proportionality, his language is identical to that of the first decision; but as regards whether article 8 is engaged at all it is somewhat differently worded. For reasons that will appear, it is relevant to consider the date at which he considered the article 8 claim. Although he does not address the point explicitly, the natural reading seems to me to be that he did so on the basis of the circumstances as they were at the time of his decision, i.e. in 2012. That might or might not be implicit in the reference to “re-visiting” the claim. But what seems to me decisive is that he refers to the Appellant as having family life in Nepal with his aunt, grandparents and uncles, making no mention of his mother. That can only have been deliberate, given that the Appellant’s mother had been expressly referred to when he was considering the claim under SET12; and the difference must reflect the fact that she had left for the U.K. in the meantime.

7.

The Appellant appealed against that decision. By a determination promulgated on 8 May 2013 FTTJ Hembrough dismissed the appeal. I can summarise his reasons as follows: (1)

He considered first the claim under article 8. He observed that there was some uncertainty about whether he was considering an appeal against the first or second decision of the ECO. He expressed the view that it was the latter, but he said that the point is in any event academic by virtue of section 85 (4) of the Immigration, Asylum and Nationality Act 2002, which allowed a tribunal to consider “evidence which concerns a matter arising after the date of the decision”; so that even if the appeal was against the first decision he could consider subsequent events. (He was in fact wrong about that – see para. 13 (3) below.)

(2)

Consistently with that conclusion, he considered the article 8 claim as at the date of the second decision of the ECO (subject to the wrinkle noted below). He in fact noted that the language of the 2010 and 2012 decisions was very similar, but he nevertheless pointed out (at para. 29) that “… by 12 March 2013 [sic] time had moved on and circumstances had changed”. The reference to 12 March 2013 was a slip: the second ECO decision was, as I have said, made on 12 March 2012. However the Appellant does not suggest that anything turns on this mistake: as will appear, the issue is whether the Judge should have considered the position as at 2010, and the difference between 2012 and 2013 is immaterial.

(3)

As regards the question whether article 8 is engaged in the Appellant’s case the Judge directed himself by reference to the decision of the Upper Tribunal (Lang J and UTJ Jordan) in Ghising v Secretary of State for the Home Department [2012] UKUT 00160 (IAC), which contains a thorough review of the case-law about the application of article 8 in the case of adult family members and concludes that there are no blanket rules and that each case should be decided on the basis of a careful analysis of its particular facts.

(4)

The Judge’s primary conclusion was that article 8 was not engaged. Since that conclusion is not now challenged I need not set out the reasoning in any detail. In bare outline, he acknowledged that the evidence of the Appellant’s father was that there was a particularly close emotional bond between the Appellant and his mother; but he said (at para. 31) that: “the fact of his mother having chosen to settle in the UK in 2010 [is] indicative of a view on the part of both the Appellant and his parents that he was capable of looking after himself in Nepal albeit with the benefit of some financial assistance from the UK and that the separation would not be prejudicial to his emotional welfare. Frankly this is nothing more than one would expect of a normal, healthy 25year old adult male even when regard is taken of the cultural context.” That point was then developed in the following paragraphs. The Appellant was fit and there was no evidence that he was incapable of finding work and supporting himself.

(5)

At para. 35 he said that even if he had been satisfied that article 8 was engaged he would have found that any interference with family life was proportionate. He gives no reasons, but it can fairly be inferred that he relied on essentially the same matters as in relation to the prior question.

(6)

He then went on to consider the claim under policy SET12. He started by observing that the earlier decision of the ECO should be treated as a nullity and that “it might therefore be argued with some force that the relevant date for consideration of the facts and the application of the policy is 12 March 2013 [sic] not 16 June 2010”. However, he proceeded to consider the claim on both bases by way of alternative. In relation to both he held that the policy did not require the ECO to exercise his discretion in the Appellant’s favour.

8.

The Appellant appealed to the Upper Tribunal. He was represented, as he had been at all previous stages, by Mr Christian Howells of counsel. One of the grounds of appeal concerned the application of the decision of this Court in Gurung v Secretary of State for the Home Department [2013] EWCA Civ 8, [2013] 1 WLR 2546. Since that point is not pursued before us I need say no more about it. The other two grounds of appeal were based on the fact that Judge Hembrough had considered both the article 8 claim and (it was contended) the claim under the policy by reference to the facts as they stood in March 2012 (or 2013) rather than June 2010. In that connection Mr Howells relied on dicta of Tomlinson LJ in UG (Nepal) [2012] EWCA Civ 58, which I will set out later.

9.

The appeal was heard by DUTJ Peart on 9 September 2013. By a determination promulgated on 23 September 2013 it was dismissed. The Judge’s reasoning on the issue was brief. He said, at para. 21: “Judge Hembrough carried out an Article 8 balancing exercise … . As Judge Hembrough explained at [29] of his determination, in his Article 8 assessment, by 12 March 2013 time had moved on and circumstances had changed. I do not accept that UG in any way restricted Judge Hembrough to take account of the appellant’s circumstances as of the date of the first refusal in 2010, rather than the appellant’s circumstances as he found them before him in 2013. I do accept that the developments that took place in the appellant’s life, by the effluxion of time, might be argued to have worsened his position in the sense of weakening of family ties and dependency, but I do not accept as a result that the judge’s approach was unfair and therefore unlawful.” (The references in that passage to the second decision of the ECO having been made in 2013 follow the original mistake of the FTT: see para. 7 (2) above.)

THE APPEAL 10.

The Appellant appeals to this Court with permission granted by Vos LJ. He has again been represented by Mr Howells. The Respondent has been represented by Mr Tom Richards of counsel. We are grateful to both for their succinct and persuasive submissions.

11.

Although the original grounds of appeal had gone somewhat wider, Mr Howells at para. 4 of his skeleton argument summarised the basis of the appeal as follows: “The appellant relies upon the sole ground [that] the Tribunal erred in law in not taking the factual nexus as at the date of the first of the two decisions by the [ECO] to refuse the appellant’s application for settlement under article 8 ECHR, where the first decision had been set aside as unlawful. The Tribunal’s approach led to unfair treatment of the appellant in that the passage of time weakened his appeal under article 8 ECHR. The Tribunal’s approach also differed to that of the respondent.” In short, the FTT erred in law in assessing the Appellant’s article 8 claim as at 2013 rather than as at the date of its original decision some three years earlier.

12.

Although that is described as a single ground of appeal, it comprises two distinct arguments, which I will describe as the “date of decision” and the “fairness” arguments. I take them in turn.

(1)

THE DATE OF DECISION ARGUMENT

13.

The legal basis for this argument is the provisions of sections 85 and 85A of the 2002 Act, as they stood at the material time (they have since been amended). I start by setting out the material parts: (1) Section 85 (4) provided that: “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 considers relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision”. It is common ground that the appeal in the present case was made under section 82 (1) of the Act, which conferred a right of appeal against an “immigration decision” (as defined in section 82 (2)). Section 85 (4) set out a well-understood general rule that, in essence, the Tribunal determines an appeal on the basis of the evidence before it rather than the evidence before the original decision-taker. (2) However, section 85 (5) provided that the rule in section 85 (4) was subject to the exceptions in section 85A. Section 85A (2) read: “Exception 1 is that in relation to an appeal under section 82 (1) against an immigration decision of a kind specified in section 82 (2) (b) or © the Tribunal may consider only the circumstances appertaining at the date of the decision”. Section 82 (2) (b) refers to “refusal of entry clearance”. (3) Accordingly the decision in the present case – being a decision to refuse entry clearance – falls within section 85A (2) and, contrary to the general rule, the Tribunal was entitled only to consider the circumstances appertaining at the date

of the decision appealed against. (That is why, as Mr Richards accepted, Judge Hembrough’s point referred to at para. 7 (1) above is wrong.) I should mention for completeness that in AS (Somalia) v Secretary of State for the Home Department [2009] UKHL 32, [2009] 1 WLR 1385, the House of Lords held that these provisions – or, strictly, an earlier but substantially identical version of them – were not incompatible with article 8 of the Convention. 14.

Mr Howells’ argument depends on the submission that the decision with which Judge Hembrough was concerned was the first decision of the ECO – that is, the decision taken on 16 June 2010. If that is correct, the effect of section 85A (2) is that the Judge was not entitled to consider anything which had occurred since that date, whereas he in fact explicitly considered the position as it stood in 2013 – see para. 7 (2) above.

15.

In support of that submission Mr Howells referred us to the decision of the Upper Tribunal in Secretary of State for the Home Department v Greenwood [2014] UKUT 342 (IAC), [2014] Imm AR 6. In that case Mr Ockelton, the Vice-President of the Chamber, questioned whether the FTT has power to “remit” a decision to the primary decision-maker following a successful appeal: rather, he suggested, the original decision having been held to be not in accordance with the law, the application in question remains outstanding, awaiting a lawful decision (see para. 17). Mr Howells acknowledged that the ECO had had to take a fresh decision on the policy question, because it had been held that he had got that wrong; but he submitted that since there had been no criticism of his reasoning under article 8 that aspect of the first decision accordingly stood and constituted the decision with which Judge Hembrough was concerned.

16.

I do not accept that it is possible to split the decision made by the ECO in the way proposed by Mr Howells. The Appellant’s application was an undifferentiated application for leave to enter, albeit advanced on more than one basis in law; and the ECO’s decision to refuse that application was likewise a single decision. Greenwood does not assist him: the present point was not in issue, and in any event Mr Ockelton refers to “the application” remaining outstanding. The ECO on the second occasion understood the position correctly when he said that the article 8 point required to be “re-visited”. The procedural position reflects this reality. The appeal before Judge Hembrough was undoubtedly in form an appeal from the ECO’s decision of 12 March 2012 and is treated as such in the Appellant’s Grounds of Appeal to the Tribunal.

17.

Accordingly, I would reject the date of decision argument. The decision under appeal was, as regards article 8 as much as the policy issue, the ECO’s decision of 12 March 2012; and the relevant circumstances were thus, in accordance with section 85A (2), those appertaining at the date of that decision.

(2)

THE FAIRNESS ARGUMENT

18.

Mr Howells’ second argument was that, even if the formal focus was on the 2012 decision, it was in the particular circumstances of the case unfair that the FTT should rely on the facts as they stood as at that date rather than as they stood in 2010. He relied on two points, which I take in turn.

19.

First, he submitted that the ECO himself in the 2012 decision had proceeded on the basis of the facts as they were in 2010 and accordingly that it was unfair that the FTT should proceed on any different basis. I am not sure that that follows; but in any event I believe that the premise is wrong. I agree that the approach of the ECO is not wholly explicit; but for the reasons given at para. 6 (2) above I think that the better view is that in addressing the article 8 issue he was considering the position as it was in 2012.

20.

Secondly, Mr Howells pointed out that Judge Hembrough had explicitly proceeded on the basis that the Appellant’s case under article 8 had been weakened by the passage of time between 2010 and 2013 (or, rather, 2012): “time had moved on and circumstances had changed” (see para. 7 (2) above). But the only reason why the FTT was considering the Appellant’s article 8 claim on the basis of the circumstances at the latter date was that the ECO had applied the wrong policy first time round, which had led to the FTT on the first appeal not having to consider the article 8 claim and it having to be “re-visited” two years later. It was unfair that he should be prejudiced by that error, for which he was in no way responsible, and accordingly any change in his circumstances in the intervening period should be ignored.

21.

In support of that submission Mr Howells relied on a passage in the judgment of Tomlinson LJ in UG (Nepal) v Entry Clearance Officer [2012] EWCA Civ 58. In that case it was conceded in this Court that the decision of an ECO to refuse entry clearance had been made on the basis of an incorrect understanding of the applicable policy. (No claim was made under article 8.) There was an issue as to whether it was necessary to remit the case to the ECO for a fresh decision. It was held that it was. At para. 28 of his judgment (with which Arden and Sullivan LJJ agreed) Tomlinson LJ gave guidance as to the approach which the ECO should take on remittal, as follows: “… The ECO should in each case apply the policy which was in force as at the date of the respective applications, but he should apply it to the facts as he finds them to be as at the time of his decision. … The ECO is entitled to take into account developments subsequent to the date of the initial application, insofar as they amount to a material change of circumstances. In so proceeding the ECO will of course be mindful of the need not to permit a material change of circumstances to lead to unfair treatment of an applicant [my emphasis]. But changes of circumstance can cut both ways. Serious illness may have intervened which was not present at the time of the application. There would be no unfairness in denying settlement rights in the UK to a once-dependent applicant who has subsequently married or formed some liaison with a millionaire overseas.”

Mr Howells submitted that the weakening of the Appellant’s article 8 case by the delay between 2010 and 2012 was a good illustration of the kind of material change of circumstance which the FTT, being the relevant decision-maker, was obliged – in accordance with Tomlinson LJ’s admonition as italicised above – to ensure did not lead to unfair treatment. 22.

I do not regard Tomlinson LJ’s observations in UG as applicable to the present case. He was concerned with the application of a policy and not with a claim under article 8. The decision of the House of Lords in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, [2009] 1 AC 1159, addresses directly the question of the proper approach to claims under article 8 where the claim has been weakened by the passage of time as a result of culpable delay which is the responsibility of the Secretary of State. The facts were that the consideration of the application of a Kosovar asylum-seeker was delayed, initially because the Secretary of State wrongly asserted that he had failed to lodge a claim in proper form and latterly because of unexplained inertia; and the result of that delay was that the asylum claim became unsustainable. The claimant, however, pursued a claim under article 8 and sought to rely on the Secretary of State’s delay in that connection. Lord Bingham, with whom the majority agreed, started by rejecting, at para. 13 of his opinion, the submission (not in fact made in that case but appearing in earlier authority) “… that if the decision on an application for leave to enter or remain was made after the expiry of an unreasonable period of time, and if the application would probably have met with success, or a greater chance of success, if it had been decided within a reasonable time, and if the applicant had in the meantime established a family life in this country, he should be treated when the decision is ultimately made as if the decision had been made at that earlier time” (p. 1188H). He accepted that “the duty of the decision-maker is to have regard to the facts, and any policy in force, when the decision is made [my emphasis]” (p. 1189B)). He went on to identify ways in which delays in decision-making might nevertheless be relevant to the proportionality exercise. The first two instances that he considers (at paras. 14 and 15) have no potential application to the present case. But at para. 16 (p. 1189 G-H) he makes the point that “[d]elay may be relevant … in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control, if the delay is shown to be the result of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes”, and that that may be relevant to the proportionality assessment in a given case. The reference to a “dysfunctional system” reflects the circumstances of the particular case, but I do not understand it to be of the essence: the underlying point is that a culpable delay in decision-making which leads to a seriously unfair outcome may in principle be relevant to the assessment of proportionality. Lady Hale in her concurring opinion referred more generally to “prolonged and inexcusable delay”: see para. 32 (p. 1194 F-G).

23.

It seems to me that the passage from para. 13 of Lord Bingham’s opinion which I have quoted above is incompatible with Mr Howells’ submission that Judge Hembrough was obliged to assess the article 8 claim on the basis of the facts as they stood in 2010. On the contrary, he was obliged to do so on the facts as they stood at the date of the decision (being, exceptionally, because of section 85A (2), the date of

the decision of the ECO rather than his own decision). That is in substance what he did (his reference to 2013 rather than 2012 being admittedly immaterial). In so far as he was entitled to have regard to the prejudice arguably caused to the Appellant’s case by the passage of time caused by the Respondent’s initial application of the wrong policy, he could only do so in the context of the proportionality assessment. 24.

That is sufficient to dispose of the Appellant’s case as advanced by Mr Howells. But I should say that even if he had formulated his complaint as a challenge to Judge Hembrough’s failure to take into account in his proportionality assessment the prejudice caused by the delay I do not believe the challenge could have succeeded. In the first place, the Judge’s principal decision was that article 8 was not engaged at all: see para. 7 (4) above. The original grounds of appeal had sought to challenge that finding, but Mr Howells abandoned that point. Secondly, while the Judge was no doubt right in principle to say that the passage of time had weakened the claim under article 8, it does not follow, and I very much doubt, that it could have succeeded on the basis of the facts as they stood at 2010 either. I do not believe that the interval of two years (in fact one year and nine months) was of great significance. The circumstances on which the Judge relied in reaching his conclusion were essentially as applicable in 2010 as in 2012.

25.

This conclusion renders it unnecessary to consider other arguments advanced by Mr Richards on this part of the appeal. But I will briefly mention two, which may possibly be of some wider application.

26.

First, Mr Richards submitted that the fairness argument was conclusively answered by the terms of section 85A (2): the FTT was obliged to consider “only the circumstances appertaining at the date of the decision” – being, as established above, the 2012 decision – and was not therefore permitted to take into account the circumstances appertaining at the date of the 2010 decision. I do not accept that. The purpose of section 85A (2), being an exception to the general rule in section 85 (4), is to exclude reference to circumstances arising subsequently to the decision appealed against. In any event, I do not see why in principle an unfairness of the kind relied on by the Appellant cannot constitute part of the circumstances appertaining at the date of the decision.

27.

Secondly – with, it must be said, some encouragement from the Court – Mr Richards relied on the recent decision in R (TN (Afghanistan)) v Secretary of State for the Home Department, [2015] UKSC 40, [2015] 1 WLR 3083, in which the Supreme Court held (over-ruling R (Rashid) v Secretary of State for the Home Department, [2005] EWCA Civ 608) that it was not open to a tribunal to allow a claim for asylum or humanitarian protection that was not justified at the date of decision on the basis that the claim would or might have succeeded but for some culpable delay on the part of the Secretary of State that prevented it being considered sooner. The broad thrust of the reasoning is indeed similar to that of Lord Bingham at para. 13 of his opinion in EB (Kosovo); but it is less directly in point because it is concerned with asylum claims rather than claims under article 8.

CONCLUSION 28.

I would dismiss this appeal.

Lord Justice Simon: 29.

I agree.

Lady Justice Rafferty: 30.

I also agree.

Neutral Citation Number: [2016] EWCA Civ 366 Case No: B4/2015/3280 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM The Family Court sitting at Medway HHJ Scarratt ME15C01332 Royal Courts of Justice Strand, London, WC2A 2LL Date: 19/04/2016 Before: THE CHANCELLOR OF THE HIGH COURT LORD JUSTICE LEWISON and THE SENIOR PRESIDENT OF TRIBUNALS ——————–In the Matter of W (A Child) (Designation of Local Authority) Between: Medway Council - and Kent County Council -andDorset County Council -andOthers

Appellant Respondents

—————————————-Mr Frank Feehan QC and Ms Amanda Meusz (instructed by Medway Council) for the Appellant Ms Diedre Fottrell QC and Ms Joanna Burt (instructed by Kent Legal Services) for Kent CC Miss Janet Bazley QC and Mr Corey Mills (instructed by Dorset Legal & Democratic Services) for Dorset CC Hearing date: 3 February 2016


Judgment

Judgment Approved by the court for handing down.

W (A Child)

Lord Justice Ryder: 1.

On 18 September 2015 His Honour Judge Scarratt made an order in the Family Court sitting at Medway in Kent that designated Medway Council [‘Medway C’] as the local authority responsible for a baby girl who is now 8 months of age.

2.

The background circumstances to the care proceedings within which that order was made are not of immediate significance to the issue that brings the matter to this court and I shall accordingly focus on such facts as are relevant to the question in the appeal which is whether the judge was wrong to designate Medway C as the responsible local authority. Medway C submit that either Kent County Council [‘Kent CC’] or Dorset County Council [‘Dorset CC’] should have been designated. All three local authorities were represented before this court and each have made submissions in opposition to an order designating them as the responsible local authority.

3.

The child concerned was born on 6 July 2015 in Portsmouth. I shall call her W. The mother was in Portsmouth in consequence upon a detoxification referral made for her by Dorset Community Drug and Alcohol Advisory Service. W needed intensive care treatment at birth and was discharged by the hospital in accordance with a ‘safe discharge plan’ that neither this court nor the first instance court has been able to obtain. It may be that no copy of the plan now survives. If a local authority was involved in the making of the plan, it was not one of the authorities that have appeared before this court or the family court. The existence of the plan is known about because it is referred to in the documents available to the court as being made on 13 July 2015. It is common ground among those who are aware of its existence that it provided for the subsequent placement of the mother and her baby with the maternal grandfather in Kent and at a time unspecified or unknown thereafter with the maternal great grandmother in Medway.

4.

There is no dispute about the fact that upon her discharge from hospital on 23 July 2015 W went with her mother to the home of the maternal great grandmother in Medway and that the maternal grandfather was in some way involved in that arrangement and may have been the person into whose care W was discharged by the hospital. W lived from 23 July 2015 to 4 August 2015 at the maternal great grandmother’s address in Medway. Thereafter, the mother and W were provided by Kent CC with a mother and baby placement in East Sussex.

5.

Prior to W’s birth, her mother had spent time living in Dorset and Kent. For example, it is said that she lived in Dorset from May 2012 until February 2015 during which time her older child (with whom this court is not concerned) was placed in December 2014 with the paternal grandfather in Dorset. In February 2015 the mother left Dorset with that older child and went to the home of the maternal grandfather in Kent and in May 2015 the older child was made the subject of a child arrangements order to live with the maternal grandfather in Kent. The mother subsequently moved backwards and forwards to the extent that when Kent CC attempted to carry out a pre-birth assessment for W, they were unable to do so because the mother could not be located.

6.

The Judge found as a fact that the mother had left Dorset for Kent prior to the birth of W on 6 July 2015 but that she had regularly visited Dorset until her detoxification programme began on 29 June 2015 at the St James’ Hospital in Portsmouth.

Judgment Approved by the court for handing down.

W (A Child)

7.

Care proceedings were issued in respect of W on 23 July 2015 by Kent CC. On 9 July 2015 Kent CC had written to Dorset CC to request that Dorset CC take care proceedings. Dorset CC replied to say that they would not be bringing proceedings. Instead the ‘safe discharge plan’ agreed on 13 July 2015 apparently provided for the care of W within the extended family. It is clear from the statement in support of the application for a care order and the application itself that Kent CC were not in agreement with the placement of W with her mother in the community i.e. with any of the relatives proposed. The first interim care order was made by the family court on 31 July 2015 in favour of Kent CC. At that hearing Kent CC informed the court that W was being looked after by her mother at the maternal great grandmother’s home in Medway subject to a written agreement and that “this is not a safe or stable interim placement”.

8.

The written agreement was also referred to in a letter dated 23 July 2015 from Kent CC to Portsmouth City Council [‘Portsmouth CC’] informing Portsmouth CC that W and her mother were living in Medway under a ‘working together agreement’ with Kent CC. The best evidence of the terms of that agreement is contained in a Kent CC document dated 21 July 2015. The agreement is between Kent CC, the mother, the maternal grandfather and the maternal great grandmother. It is clear in its terms that the named members of the extended family were to be responsible for the supervision of the care of W and it specifies that W was to live at the home of the maternal great grandmother in Medway until Kent CC found a ‘suitable placement’.

9.

It is patent from the documents disclosed to this court and to the family court that Kent CC were opposed to the safe discharge plan even before discharge had occurred and maintained their opposition to the placement of W with her mother on the face of the application for a care order and at the hearing when the first interim care order was made. They submit that the working together agreement was a voluntary child protection agreement to abide the event of a more suitable placement that was eventually identified in East Sussex. They submit that the agreement neither provided for the placement or accommodation of W by Kent CC with her mother or other family members nor impliedly approved of the same. It was, they submit, a necessary device for the protection of W given that no other local authority had acted to protect her.

10.

It is Medway C’s case that the working together agreement amounted to accommodation provided for or on behalf of Kent CC of W with her mother and/or the extended family such that the disregard in section 105(6) applies to the period of the placement that was provided either as voluntary accommodation in accordance with section 20 CA 1989 or thereafter accommodation of W as a looked after child once the interim care order was made. Whether or not W was accommodated as submitted, both Kent CC and Dorset CC submit that the background circumstances are such that it is clear that neither the mother nor W were ordinarily resident in either of their authorities either at the time of the move to Medway or when the designation order came to be made.

The legal framework 11.

In accordance with section 31(1)(a) of the Children Act 1989 [CA 1989] a care order, whether interim or final, must be made in favour of a ‘designated local authority’. Section 31(8) CA 1989 defines a designated local authority as follows:

Judgment Approved by the court for handing down.

W (A Child)

“a) The authority within whose area the child is ordinarily resident: or b) Where the child does not ordinarily reside in the area of a local authority, the authority within whose area any circumstances arose in consequence of which the order is being made.” Section 105(6) CA 1989 makes further provision for the determination of the issue of ‘ordinary residence’ for the purpose of the CA 1989. It provides for a disregard of any period in which the child lives in any place – “a) which is a school or other institution; b) in accordance with the requirements of a supervision order under this Act c) in accordance with the requirements of a youth rehabilitation order under part 1 of the Criminal Justice and Immigration Act 2008: or d) while he is being provided with accommodation by or on behalf of the local authority.” 12.

The duty imposed on a local authority to provide accommodation for a child in need is set out in section 20 CA 1989: “(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of –

12.

(a)

there being no person who has parental responsibility for him;

(b)

his being lost or having been abandoned; or

©

the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.”

By section 20(7) CA 1989 a local authority is not permitted to provide accommodation for a child in need if any person with parental responsibility is willing and able to provide accommodation or to arrange for it to be provided and objects. A child in need for the purposes of section 20 is defined in section 17(10) CA 1989 as follows: “(10) For the purposes of this Part a child shall be taken to be in need if – (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; (b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

Judgment Approved by the court for handing down.

W (A Child)

© he is disabled, […].” 13.

Once a child is received into the care of a local authority or is provided with accommodation by them, that child is a ‘looked after child’ as defined in section 22(1) CA 1989. Looked after children are subject to a regulatory scheme for their care planning, placement and case review. In England the detail of that scheme is to be found in part in primary legislation (see, for example, section 26 CA 1989) and in part in secondary legislation (see, for example, the Care Planning, Placement and Case Review (England) Regulations 2010, as amended [‘the 2010 Regulations’]. The Secretary of State has also issued guidance to local authorities under section 7 of the Local Authority Social Services Act 1970 (‘the Children Act 1989 guidance and regulations volume 2: care planning, placement and case review’, June 2015, DfE). I shall return later in this judgment to the fact that neither in this court nor in the family court was sufficient attention paid by the parties to the provisions of the regulatory scheme.

14.

A local authority is under a duty to safeguard and promote the welfare of a looked after child by section 22(3)(a) CA 1989 and to provide accommodation for a child in their care by section 22A CA 1989. The ways in which that latter duty is to be exercised are described in sections 22C to 22G, inclusive. In essence, there is a priority of choices to which the local authority must have regard beginning with a parent and ending with a placement which is otherwise ‘the most appropriate’. What is appropriate is in part defined and constrained inter alia by that which is consistent with a child’s welfare, that which is reasonably practicable and that which is in accordance with regulations made for the purposes of the section.

15.

Section 22D CA 1989 imposes on a local authority providing accommodation for a child an obligation to do so in consequence upon a review of the child’s case in accordance with the regulatory scheme unless the arrangements are made as a matter of urgency.

16.

It is not necessary to examine any further the detailed provisions of the legislative scheme because, as I shall explain later in this judgment, the issue in this appeal depends upon an analysis of the working together agreement made between Kent CC and the family in all the circumstances that were known for the purpose of a factual determination about the ordinary residence of the child. It is, however, important to acknowledge the legal context in which that analysis should be made.

17.

Section 31(1) CA 1989 provides that an application for a care order may be made by ‘any local authority’. If a care order is made, that order is to place the child ‘in the care of a designated local authority’ (section 31(1)(a) CA 1989) and the local authority designated in a care order is that provided for in section 31(8).

18.

Section 31(8) provides that the court consider first the issue of the child’s ordinary residence when making a determination about designation. In the event that the court decides that the child is not ordinarily resident in any local authority the court must go on to consider where the circumstances existed which gave rise to the application for an order. Although there may have been interesting arguments in this case about the identity of the local authority for the purposes of section 31(8)(b) CA 1989, no-one

Judgment Approved by the court for handing down.

W (A Child)

submitted to the family court or to this court that notice should have been given to Portsmouth CC, let alone that an order should have been made against them. Given the decision that we made at the end of the hearing before this court, that question is no longer relevant. 19.

There is no issue between the local authorities concerned about the guidance that has been given by this court as to how a decision about designation should be made. In Northampton County Council v Islington Council [1999] 2 FLR 881 at 890 Thorpe LJ held that: i)

in designating particular local authorities in care orders, the courts should construe sections 31(8) and 105(6) CA 1989 to provide a simple mechanism for designation; and

ii)

the function of the court is to carry out a rapid and not over sophisticated review of the history in order to make a purely factual determination of the child’s place of ordinary residence, or, if there was no place of ordinary residence, of the place where the case was carried over the section 31 threshold, and to designate a local authority accordingly.

20.

In order to keep the court’s task as simple as possible, Thorpe LJ concluded in Northampton at 888 to 889 that the ordinary residence of a child immediately preceding the commencement of any period of disregard in section 105(6) CA 1989 should be deemed to continue uninterrupted.

21.

In C (A Child) v Plymouth County Council [2000] 1 FLR 875 Thorpe LJ reemphasised the basis of the Northampton decision which, he said, was to put an end to litigation of this kind between local authorities (see, for example at 878 and per Swinton Thomas LJ at 880). Thorpe LJ agreed with the first instance court that it was a reasonable inference of fact in the circumstances of that case that a new born baby would be unlikely to have an ordinary residence apart from her primary career and that for a child of such a tender age, the child’s ordinary residence would usually follow that of her carer. An example of the court holding that the placement of a child in an extended family can constitute the provision of accommodation by a local authority can be seen in the decision of Bodey J in: Sheffield CC v Bradford CC [2013] 1 FLR 1027.

22.

Northampton has been consistently applied for 17 years, although not without some difficulty. It inevitably involves give and take by local authorities and an acknowledgement by each of them of the obligations imposed by the legislative and regulatory scheme. In Re D (A Child) [2012] EWCA Civ 627 Ward LJ said as much and went on to give the following helpful analysis: “[19]. If one asks which local authority is to bear the burden of responsibility for implementing the care order and care plan, it seems to me that the answer is fairly obvious. For the section 31 threshold to be crossed the child must be suffering, or be likely to suffer, significant harm at the time the local authority initiated the procedure for the protection of the child concerned. Where the child is ordinarily living, or where the relevant threshold events take place, is the relevant locus which provides the best identification of a practical, temporal and physical connection between

Judgment Approved by the court for handing down.

W (A Child)

local authority and child. The burden of the eventual responsibility for implementing the care order should then fall on the local authority having that connection. The designation of the appropriate local authority under section 31(8) seeks to do just that. […] [21] Much the same idea should inform section 31(8)(a). The designated authority is to be the local authority within whose area the child is ordinarily living. The local authority in the area where the child ordinarily lives is best placed to monitor the needs of the child and to take action if the child is in need and to shoulder the financial obligations of doing so. Ordinary residence is the most appropriate connecting factor between the child, the local authority and the court. It should not be unduly difficult to resolve a question of ordinary residence if the matter is robustly approached by the court. It is easy enough to establish where the child and, because of the child’s dependency, where the mother is living. The court need not take the tooth comb to decide whether, to apply the hallowed test of Lord Scarman in Reg v Barnett LBC, ex p Shah [1983] 2 AC 343, her abode in that particular place has been adopted voluntarily and for settled purposes as part of the regular order of her life for the time being, whether of short or long duration.” 23.

A more recent review of the authorities on ordinary residence in the context of vulnerable adults is to be found in the judgment of Lord Carnwath in the Supreme Court in R (on the application of Cornwall Council) v Secretary of State for Health, R (on the application of Cornwall Council) v Somerset County Council [2015] UKSC 46. There is nothing in that analysis which casts doubt on the principles described in Northampton and in Re D.

Discussion: 24.

It is a matter of some regret that the issue of the designation of the responsible authority was not concluded as it should have been when the first interim care order was made. Judge Scarratt was right to comment adversely about that. It was simply inappropriate for the court to sever off the issue given the importance that it has for the effective management of the regulatory scheme and to enable the court’s task of designation to be undertaken simply and robustly in the manner described in the authorities. It left W in the interim care of Kent CC but in an extended family arrangement of which they disapproved.

25.

Although no-one sought to example in evidence for this court or the family court the impact of the legislative and regulatory scheme for care planning, placement or case review on the circumstances that arose as respects W, there was at least a fleeting acknowledgement that it was relevant. Ms Fottrell was able to confirm that whether the extended family arrangement that arose as a consequence of the safe discharge plan was section 20 accommodation or thereafter part of a looked after child’s plan, was not a question put to the family court with the consequence that no-one asked for disclosure of the documents that ought to have existed if it was. Accordingly, all that can be said is that there was no evidence before that court or before this court that a responsible officer of Kent CC made a decision to accommodate or place W with her mother or any

Judgment Approved by the court for handing down.

W (A Child)

relative (known for this purpose as ‘a connected person’) before the decision that led to the move to East Sussex. Such limited documents as exist before this court were requested by Medway Council at the permission hearing. 26.

There is no care plan, permanence plan or placement plan made under regulations 4 to 9, inclusive of the 2010 Regulations which might have been evidence of a contrary position. Likewise, there is no child protection plan, assessment, minute of a case review or decision by an agency decision maker upon which a finding of fact could have been based. There is no document that amounts to notification of a placement by Kent CC which would have been required under regulation 13 (a document that would have been served on any number of people including the parents) nor any document to regularise what would have been for Kent CC a placement out of area under regulation 11.

27.

Mr Feehan’s submission that the arrangement contained in the working together agreement was an emergency foster placement (with a connected person) pending assessment under regulation 24 of the 2010 Regulations begs the very question on what basis such a conclusion can be drawn. He might also have submitted that the arrangement was a placement with a parent under regulation 19. In each case, in the absence of any other evidence, all that the family court and this court have is the wording of the working together agreement in the context of the other circumstances, which in this case are limited and include the disavowal by Kent CC of the arrangement.

28.

In the absence of any any detailed submissions or evidence on the point, I have hesitated to do more than point out what is missing in this case. It is sufficient to say that none of the local authorities who appeared before this court identified a deemed regulatory effect that was determinative of the factual issue before us given the lack of evidence to which I have referred.

29.

One agreed consequence of the failure to designate the authority at the beginning of the proceedings was that Judge Scarratt had to make his decision at the time of the hearing before him in mid September 2015 nearly two months after the mother and W had been discharged from hospital and more than one month after the mother and baby placement had been provided by Kent CC in East Sussex. That placement was of course a placement to which the disregard in section 105(6) CA 1989 applied so that Judge Scarratt was met with the artificial circumstance of having to decide ordinary residence at the time of the hearing before him when more than a month before that date the disregard had started to apply. Accordingly, his decision was one constrained by the facts that were relevant within a limited timescale that started with W’s birth (in the context of the mother’s history immediately before that date) and finished with the placement in East Sussex.

30.

In the absence of any other material, the plain language of the working together agreement presents a formidable obstacle to the submission that W was accommodated or placed by Kent CC with the extended family in Medway. The agreement is no more than an unenforceable child protection arrangement, albeit that this court was told that failure to abide by it would have led to the removal of W. The document is not phrased as a section 20 accommodation agreement or a plan to accommodate or place W as a looked after child. I am wholly unpersuaded that this document on its own is sufficient to infer that the arrangement in Medway should be disregarded as ‘accommodation

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W (A Child)

provided by or on behalf of the local authority’ in accordance with section 105(6) CA 1989. On its face, the arrangement was not. 31.

If the arrangement in Medway is not to be disregarded then that is the only place that the child lived after discharge from hospital shortly after her birth and until her move to East Sussex. The history before birth is of little assistance and no-one challenges the judge’s finding that the mother had left Dorset for Kent but had continued to visit Dorset until the detoxification referral that took her temporarily to Portsmouth. The section 31 threshold arose out of historic facts not relevant to the detoxification unit in Portsmouth so that the likelihood of harm would arise, absent protection, in any place where the child ordinarily lived with her mother thereafter. The mother’s position was that she intended to continue to live in Medway where she could call on the continuing support of her extended family.

32.

On any basis the effect of the judge’s finding that the mother left Dorset in February 2015 with no settled intention to return and no return in fact save for visits before the birth of W (with no return at all after the birth of W) effectively rules them out as a place where the mother could have been ordinarily resident for the purposes of section 31(8) CA 1989.

33.

If W was not accommodated or placed by Kent CC with the extended family in Medway the disregard does not apply and as between Kent and Medway, W lived for the whole of the relevant period in Medway with her primary carer. At no material time did she or her mother live in Kent, whatever may have been agreed in the safe discharge plan or whatever might have been expected or intended after her mother left Dorset. The judge found as a fact that W had never lived in Kent or Dorset and that cannot seriously be contradicted.

34.

I have sympathy with Medway C who are able to point to the mother’s earlier lifestyle outside their authority and the relatively short duration of her residence with W in their area. However, the matters relied upon by Kent CC are determinative in the absence of any other material

35.

Given that the test for ordinary residence is one of fact and should not be made into an overly complicated exercise, I can find no basis for concluding that Judge Scarratt’s decision was perverse. It was based on the analysis I have described without the benefit of any material to suggest otherwise. It was reasoned and clear and in all the circumstances unassailable.

36.

At the conclusion of the hearing, the appeal was dismissed and these are my reasons for concurring in that decision.

Lord Justice Lewison: 37.

I agree.

The Chancellor: 38.

I also agree.

Neutral Citation Number: [2016] EWCA Civ 369 Case No: C5/2014/2083 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) Royal Courts of Justice Strand, London, WC2A 2LL Date: 19/04/2016 Before : PRESIDENT OF THE QUEEN’S BENCH DIVISION LORD JUSTICE ELIAS and LORD JUSTICE GROSS ——————–Between : Secretary of State for the Home Department - and LW (Jamaica)

Appellant Respondent

—————————————-Lisa Busch QC (instructed by Government Legal Service) for the Appellant Samantha Knights and Anita Davies (instructed by Ineyab Solicitors) for the Respondent Hearing dates : 23 February, 2016


Judgment

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SSHD –v- LW (Jamaica)

Lord Justice Gross :

INTRODUCTION: 1.

Our task on this appeal is to determine whether the First-Tier Tribunal (“the FTT”) erred in law and whether the Upper Tribunal (“the UT”) itself erred in law in upholding the FTT’s decision. Underlying this appeal, however, is the important policy question as to the public interest in the deportation of foreign criminals, applied in the context of an individual who, although guilty of serious criminal conduct, has lawfully resided in this country for over 40 years.

2.

The Secretary of State for the Home Department (“the SSHD”) appeals, with the permission of Laws LJ, granted at an oral renewal hearing on 12th February, 2015, against the decision of the UT to dismiss her appeal against the decision of the FTT to allow the Respondent’s (“LW’s”) appeal against deportation.

3.

A brief chronology is helpful: i)

LW is a Jamaican national.

ii)

He was born on 24th April, 1957 (and so is now approaching 59).

iii)

He entered the United Kingdom (“UK”) in August 1973 (to join his father, who was living here with his mother), at the age of 16.

iv)

He was granted indefinite leave to remain on 11th October, 1973 and has lived in the UK lawfully ever since.

v)

On the material available to this Court, he has only been to Jamaica twice since coming to the UK in 1973; both of those occasions were in 2010; one was for a short holiday, the other to attend his grandmother’s funeral.

vi)

Between 17th December, 1976 and November 2011, he amassed in this country 21 convictions for a total of 35 offences.

vii)

On the 24th October, 2011, LW pleaded guilty to possession with intent to supply class A drugs (crack cocaine, “the conviction”)).

viii)

On the 6th December, 2011, he was sentenced to 6 years imprisonment (“the sentence”).

ix)

On the 29th May, 2013, the SSHD issued LW with a Deportation Order (“the Deportation Order”) on the basis that, in the light of the sentence such an order is automatic under the legislation to which I shall come. It is fair to underline that the Deportation Order was based on the sentence alone – not LW’s criminal record in general.

x)

By its determination promulgated on the 22nd August, 2013, the FTT allowed LW’s appeal against the Deportation Order (“the FTT decision”).

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xi)

4.

SSHD –v- LW (Jamaica)

Following an initial refusal by the FTT but with permission subsequently granted by a Judge of the UT (to which I shall return), the UT heard the SSHD’s appeal from the FTT decision. By its determination promulgated on the 13th March, 2014, the UT held that the FTT had not erred in law and upheld the FTT decision (“the UT decision”). As already indicated, the SSHD appeals to this Court from the UT decision.

It is convenient to mention LW’s family at this stage. He and his wife have been together for over 20 years and married on 23rd June, 2011. They have two children, one of whom, Tyrone, was just under 18 at the time of the FTT decision (and is now over 18). LW also has two stepchildren. LW’s mother, brother and two sisters are also in the UK. LW’s wife and children are all British citizens. It is said that he has always played an active role in his children’s lives and has always lived with them, except when imprisoned. It may be noted that Tyrone was sentenced to a Detention and Training Order for a domestic burglary; he was released on licence on the 7th February, 2013 and his licence expired on the 5th September, 2013.

THE LEGAL FRAMEWORK 5.

The UK Borders Act 2007 (“the 2007 Act”) provides, so far as material, as follows: “ 32 Automatic deportation (1) In this section ‘foreign criminal’ means a person – (a) who is not a British citizen, (b) who is convicted in the United Kingdom of an offence, and © to whom Condition 1 or 2 applies. (2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months. (4) For the purpose of section 3(5)(a) of the Immigration Act 1971….the deportation of a foreign criminal is conducive to the public good. (5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33). 33 Exceptions (1) Section 32(4) and (5) – (a) do not apply where an exception in this section applies (subject to subsection (7) below)….. (2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach –

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(a) a person’s Convention rights….. (7) The application of an exception – (a) does not prevent the making of a deportation order; (b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good; but section 32(4) applies despite the application of Exception 1 or 4.” 6.

In short, the effect of these provisions is that by s.32(4), Parliament has decided that the deportation of foreign criminals is conducive to the public good. By s.32(5), the SSHD is obliged to make a deportation order, subject to s.33. Turning to s.33, it identifies a number of exceptions which, if applicable, have the consequence that subsections 32(4) and (5) will not apply. The only exception here relevant is where the removal of the foreign criminal would breach his rights under the ECHR. However, pursuant to s.33(7), if the exception relied upon is that deportation would amount to a breach of the foreign criminal’s ECHR rights, then s.32(4) continues to apply – i.e., it remains the case that deportation is conducive to the public good.

7.

The detail is dealt with in the Immigration Rules, which reflect the statutory obligation of the SSHD to deport foreign criminals while recognising that there may be cases where the making of a deportation order would be incompatible with Art.8. Rules 398, 399 and 399A (“the new rules”) were introduced in 2012 into the Statement of Changes in Immigration Rules (1994) (HC 395) by the Statement of Changes in Immigration Rules (2012) (HC 194). (New) Rule 398 of the Immigration Rules (in the terms current at the time of the decisions under challenge in this appeal) is in these terms: “ Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and (a) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; (b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or © the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused

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SSHD –v- LW (Jamaica)

serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors. ” 8.

The scheme here may be simply summarised. Rule 398 (a) deals with those sentenced to at least 4 years imprisonment. Rules 398 (b) and © deal with those sentenced to lesser periods of imprisonment. Rules 399 and 399A make provision for various circumstances where, given matters such as family relationships, implicitly at least, deportation would be contrary to Art. 8. Thus, for example – and perhaps germane to the present case – Rule 399A (a) deals with the case of a person who has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision and has no ties with the country to which he would have to go if required to leave the UK. It should be noted that (as cited in MF (Nigeria), referred to below) a document issued by the SSHD to assist caseworkers in applying the new rules, entitled “Criminality Guidance for article 8 ECHR Cases” (March 2013), asserts that a case is not exceptional “just because the exceptions to deportation in rule 399 or rule 399A have been missed by a small margin”.

9.

Crucially, for present purposes, both Rules 399 and 399A are premised on Rules 398 (b) or © applying. Neither Rules 399 nor 399A assists a person sentenced to at least 4 years imprisonment and who falls within Rule 398 (a), as does LW in this case. In cases where Rule 398 (a) applies, the person concerned requires “exceptional circumstances” to outweigh the public interest in deportation.

10.

The new rules were considered in MF (Nigeria) v Home Secretary [2013] EWCA Civ 1192; [2014] 1 WLR 544. Giving the judgment of the Court, Lord Dyson MR observed (at [2]) that the new rules “…introduced for the first time a set of criteria by reference to which the impact of article 8 in criminal deportation cases was to be assessed.” It was common ground (at [35]) that the first step to be undertaken under the new rules was to decide whether deportation would be contrary to an individual’s Art. 8 rights, on the grounds that paragraph 398 (b) or © and one or more of the conditions set out in paragraphs 399 or 399A applied. The Court next posed this question (at [36]): “ What is the position where paragraphs 399 and 399A do not apply either because the case falls within paragraph 398(a) or because, although it falls within paragraph 398 (b) or ©, none of the conditions set out in paragraph 399(a) or (b) or paragraph 399A (a) or (b) applies? The new rules provide that in that event, ‘it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.’” The Court observed (at [38]) that paragraph 398 expressly contemplated a weighing of “other factors” against the public interest in the deportation of foreign criminals. The “central question” was whether the use of the phrase “exceptional circumstances”

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meant that the weighing exercise contemplated by the new rules was to be carried out compatibly with the ECHR. 11.

The Court continued as follows: “ 40. ….. Ms Giovannetti [for the SSHD] submits that the reference to exceptional circumstances serves the purpose of emphasising that, in the balancing exercise, great weight should be given to the public interest in deporting foreign criminals who do not satisfy paragraphs 398 and 399 or 399A. It is only exceptionally that such foreign criminals will succeed in showing that their rights under article 8.1 trump the public interest in their deportation. 41. We accept this submission….. 42. …..in approaching the question of whether removal is a proportionate interference with an individual’s article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be ‘exceptional’) is required to outweigh the public interest in removal. In our view, it is no coincidence that the phrase ‘exceptional circumstances’ is used in the new rules in the context of weighing the competing factors for and against deportation of foreign criminals. 43. The word ‘exceptional’ is often used to denote a departure from a general rule. The general rule in the present context is that, in the case of a foreign prisoner to whom paragraphs 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are the ‘exceptional circumstances’. 44. We would, therefore, hold that the new rules are a complete code and that the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence. We accordingly respectfully do not agree with the UT that the decision-maker is not ‘mandated or directed’ to take all the relevant article 8 criteria into account…..”

12.

MF (Nigeria) has been followed repeatedly in this Court since; two references suffice. First, in LC (China) v SSHD [2014] EWCA Civ 1310; [2015] INLR 302, Moore-Bick LJ said this (at [17]): “ Two points of importance emerge from the decisions in SS (Nigeria) and MF (Nigeria). First both emphasise the great weight to be attached to the public interest in the deportation of foreign criminals and the importance of the policy in that regard to which effect has been given by Parliament in the UK Borders Act 2007 …… The second is that it is wrong to

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consider the question of infringement of Art 8 rights outside the terms of the Immigration Rules…. ” 13.

Secondly, the significance of the approach adopted in MF (Nigeria) was, with respect, illuminated by the observations of Sales LJ in SSHD v AJ (Angola) [2014] EWCA Civ 1636, at [39] – [40]: “ 39. The fact that the new rules are intended to operate as a comprehensive code is significant, because it means that an official or a tribunal should seek to take account of any Convention rights of an appellant through the lens of the new rules themselves, rather than looking to apply Convention rights for themselves in a free-standing way outside the new rules. This feature of the new rules makes the decision-making framework in relation to foreign criminals different from that in relation to other parts of the Immigration Rules, where the Secretary of State retains a general discretion outside the Rules in exercise of which, in some circumstances, decisions may need to be made in order to accommodate certain claims for leave to remain on the basis of Convention rights…… 40. ……The requirement of assessment through the lens of the new rules also seeks to ensure that decisions are made in a way that is properly informed by the considerable weight to be given to the public interest in deportation of foreign criminals, as declared by Parliament in the 2007 Act and reinforced by the Secretary of State ….so as to promote public confidence in that system in this sensitive area. ”

14.

Pulling the threads together: i)

The new rules provide a comprehensive code;

ii)

The context is the great weight to be attached to the public interest in the deportation of foreign criminals;

iii)

That public interest and related questions of public confidence reflect (1) protection of the public from re-offending; (2) deterrence; (3) public revulsion;

iv)

The considerations in a deportation case are thus very different from those applicable to cases of immigration control;

v)

A proportionality test, taking all the relevant Art 8 criteria into account and weighed in the scales against the public interest in deportation, is to be conducted - but through the lens of the new rules, rather than as a free-standing exercise;

vi)

In the case of a person sentenced to at least 4 years imprisonment, paragraph 398(a) applies and neither paragraph 399 nor 399A is applicable; accordingly,

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SSHD –v- LW (Jamaica)

it will only be in “exceptional circumstances” that the public interest in deportation will be outweighed by other factors;

15.

vii)

“Exceptional” here means something “very compelling” rather than something “unusual”; that something is “unusual” is, no doubt, a necessary but not sufficient condition for the determination that “exceptional circumstances” apply.

viii)

The application of the new rules in an individual case is necessarily fact specific.

I turn briefly to the approach to be adopted by this Court when dealing with appeals from specialist tribunals, such as the FTT and UT here. In AH (Sudan) v Home Secretary [2007] UKHL 49, in a well-known passage, Baroness Hale of Richmond said this (at [30]): “ This is an expert tribunal charged with administering a complex area of law in challenging circumstances. ….the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right….. They and they alone are the judges of the facts…… Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently….. ” In MA (Somalia) v SSHD [2010] UKSC 49, Sir John Dyson SCJ (as he then was) expressed much the same thought in these terms (at [45]): “ ….the court should not be astute to characterise as an error of law what, in truth, is no more than a disagreement with the … [tribunal’s]…assessment of the facts. Moreover, where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account. ”

THE FTT DECISION 16.

The FTT decision recorded the evidence and submissions before reciting the provisions of the 2007 Act, the new rules and Art. 8. At [31], the FTT stated that it had “taken into account relevant decided cases including…” and there followed a lengthy list of authorities, together with some observations on certain of them. At [35] and following, the FTT reflected what it described as its obligation “…..to treat the best interests of Tyrone as a primary consideration”. Some lengthy citation of ZH (Tanzania) followed. Various other matters including the Judge’s sentencing observations and the Pre-Sentence Report were then referred to.

Judgment Approved by the court for handing down.

17.

SSHD –v- LW (Jamaica)

At [51] to [55] the FTT addressed the new rules and Art. 8. The critical reasoning in this part of the decision appears from [53] – [54]: “53. We have considered the afore-mentioned factors and documents such as the Judge’s sentencing remarks, the presentencing report and OASys report as well as the effect on the Appellant’s family (in particular, the best interests of Tyrone) should the Appellant be deported and weighed them against factors such as the Appellant’s criminal record and the public interest in removing foreign citizens convicted of serious offences. 54. Many men are sent to prison [for] drugs offences with the consequence that it is difficult for members of the family when such an event happens. We do not find that there is anything exceptional in the suffering of family members whilst a person serves a sentence of imprisonment. We do not find that the Appellant has shown that his medical problems are exceptional. Many persons suffer from diabetes. However, we do find that it would be exceptional to deport a 56 year old person who has been resident in the United Kingdom for approximately forty years, who has strong family ties in the United Kingdom, no family or ties to Jamaica and who is, in effect, a ‘home-grown offender’. He came to the United Kingdom when he was approximately sixteen and first offended when he was twenty years of age.” For these reasons, the FTT allowed LW’s appeal under the Immigration Rules in relation to Art. 8.

18.

The FTT then embarked on a lengthy and free-standing consideration of Art. 8 at [56] and following. In so doing, the FTT considered a number of authorities, properly categorised as dealing with immigration control rather than deportation: see, for example, Maslov v Austria [2009] INLR 47 GC. Ultimately, at [80], the FTT concluded that: “….notwithstanding the Appellant’s serious offending whilst in the United Kingdom, …the Appellant’s Article 8 claim succeeds and that deportation of this appellant is not the appropriate course on the merits of his case….”

19.

For completeness, it may be noted that the FTT rejected a claim by LW that his Art. 3 rights would be breached, on account of his diabetes, if he had to return to Jamaica.

THE UT DECISION 20.

The UT decision may be taken very shortly. Essentially, the UT recorded the FTT decision and addressed the grounds then relied upon by the SSHD in turn. The UT

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SSHD –v- LW (Jamaica)

held (at [29]) that the conclusions reached by the FTT “…were open to the panel on all the evidence and sufficiently reasoned”. The FTT had not erred in law and the UT upheld its determination. THE RIVAL CASES 21.

For the SSHD, Ms Busch QC submitted that the FTT failed to place any, or any adequate, weight upon the significant public interest in deporting foreign criminals from the UK. Accordingly, there had yet to be conducted a properly conducted assessment of the proportionality of LW’s deportation. The FTT decision was significantly flawed and the UT should have but did not, set aside that decision. The UT decision should be quashed, the appeal allowed and the matter remitted to the UT for reconsideration. Irrespective of the ultimate outcome in this case, quashing the flawed decisions here was important for public confidence in this sensitive area.

22.

For LW, Ms Knights grouped her submissions under three headings: (1) The FTT had applied the wording of the new rules; (2) this Court should take into account that we were hearing an appeal from a specialist tribunal, indeed, two specialist tribunals which had reached the same conclusion; (3) the structure of the FTT decision itself and the FTT’s approach did not reveal an error of law.

23.

Under the first heading, Ms Knights emphasised that the FTT decision pre-dated the decision in MF (Nigeria), so the FTT could not fairly be criticised for failing to follow the language of the Court of Appeal in that case. Ms Knight acknowledged that MF (Nigeria) was available to the UT but no mention was made of it in the UT decision. The FTT had applied the wording of the rules; the public interest in deportation of foreign criminals was well-known and it was not an error of law for the FTT not to set out, expressly, the importance attached by the SSHD to that public interest – everyone knows it. Implicitly, bearing in mind that MF (Nigeria) had not yet been decided, when the FTT used the word “exceptional”, it meant “compelling”. There were compelling reasons for not deporting a 56 year old man (at the time of the FTT hearing), who had resided here for some 40 years and had close family ties.

24.

Turning to her second heading, Ms Knights contended that where a specialist tribunal had cited the correct law or rule, this Court should be slow to infer that it had gone wrong in law. The FTT decision should not be subjected to unduly critical reasoning and we should not “rush” to find a misdirection, simply because this Court took a different view. The present case was about facts not law.

25.

Under her third heading, Ms Knights invited us to consider the FTT decision “holistically”. She conceded that the free-standing consideration of Art. 8 – from paragraph 56 onwards – was incorrect; it did not, however, disclose a material error because the FTT had already decided the case in LW’s favour under the new rules. It was plain that the FTT was completely aware of the relevant public interest and not tenable to submit that the FTT had failed to give any or adequate weight to it.

26.

Finally, Ms Knights agreed with Ms Busch that if this Court was minded to allow the appeal, then the right course was to remit case to the UT.

27.

In reply, Ms Busch resisted what she termed the “elision” in Ms Knights’ argument and the language of the FTT decision between “exceptional” and “compelling”. The

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SSHD –v- LW (Jamaica)

FTT had treated “exceptional” as meaning “unusual” rather than “compelling”. The FTT – especially in paragraph 54 – had fallen into the trap of finding certain circumstances “exceptional” without asking the pertinent question of whether they were sufficiently compelling to override the public interest in the deportation of a foreign criminal. The first and second parts of the FTT decision could not be insulated from each other; if, as Ms Busch submitted, the second part was incorrect it was implausible that the FTT had adopted a correct approach in the first part. DISCUSSION 28.

In form, this is an appeal from the UT decision. However, given the nature of the FTT and UT decisions (already outlined), the reality is that the appeal involves an inquiry into the FTT decision; the UT decision will stand or fall depending on the view we take of the FTT decision.

29.

In considering the FTT decision we keep well in mind the observations of the House of Lords and the Supreme Court in AH (Sudan) and MA (Somalia), both supra, as to the approach to be adopted when dealing with appeals from specialist tribunals.

30.

However, even approached in this fashion, it is common ground that the FTT decision from [56] onwards was incorrect; the Art. 8 criteria ought to have been considered through the lens of the new rules rather than in the free-standing manner adopted by the FTT. All the more so, as a number of the authorities there considered by the FTT related to immigration control rather than deportation, so compounding the error.

31.

Granted, therefore, that the FTT strayed in its decision from [56] onwards, what follows? To my mind, the FTT’s reasoning in that second part of its decision is revealing as to its approach and thought processes; plainly, there is the risk that this second part of the decision “infected” the FTT’s reasoning overall – an erroneous approach in the second part of its decision may betray a similarly erroneous approach in the first part of the decision. That said, it does not, by itself, establish that the FTT erred in the first part of its decision, where it sought to apply the new rules. In short, while the second part of the FTT decision casts serious doubt upon and invites critical scrutiny of the first part, confusion in the FTT’s approach to Art. 8, especially as the FTT’s decision pre-dated MF (Nigeria), does not necessarily mean that the FTT failed to address the new rules correctly.

32.

I therefore return to [53] – [54], the paragraphs which are key to the FTT reasoning in the first part of its decision. Reading these paragraphs as benevolently as I can, I am unable to avoid the conclusion that the FTT here fell into error. While it is fair to say that mention is made of the public interest in “removing foreign citizens convicted of serious offences”, I cannot detect any acknowledgment of the great weight to be attached to this public interest in the deportation of “foreign criminals” (as defined). It is because of the importance attached to that interest that there needs to be something compelling to outweigh it. The reference to the “Maslov” jurisprudence (FTT decision at [31] and elsewhere) strongly indicates that the public interest here featured as simply one amongst a number of considerations in the FTT’s decision – as indeed it did in the FTT’s reasoning at [56] and following. No special weight was given to the public interest in deportation at all. As consequence, the FTT’s error, if I may venture to encapsulate it in a sentence, lay in treating “exceptional

Judgment Approved by the court for handing down.

SSHD –v- LW (Jamaica)

circumstances” as meaning “unusual circumstances” rather than “compelling reasons”. 33.

While by no means decisive, the FTT’s unhappy reference to LW as a “home-grown offender” (at [54]) is itself revealing. Although, at first blush, there is an attractive ring to this description, it cannot survive analysis. Consider, for instance, the example of a foreign national who first comes to this country at 16 and is then of good character. Over the next 10 years, he commits a string of serious offences in this country. That he is a “home-grown offender” would not for a moment stand in the way of his deportation, absent other and compelling reasons. It is the offending in this country which makes the person in question a “foreign criminal”; such offending, in this country rather than elsewhere, is the reason for deporting him, not a reason for not doing so.

34.

Rightly or wrongly (given the particular facts), the FTT made much of the position of Tyrone (LW’s son, mentioned above). Suffice to say that as he is now over 18, the significance attached to his interests must necessarily diminish.

35.

I would not gainsay that the fact of LW’s residence in this country for approximately 40 years, is a point of importance. But to found “compelling reasons” for not deporting him, considerably more is required than that provided by the FTT (or the UT). The “passage of time” point was indeed well addressed by UT Judge Jordan when granting permission to appeal to the UT; he said this: “ This raises a question as to whether the passage of time alone is exceptional and if so, at what point does it become exceptional – 20 years, 25 years, 30 years, 40 years? If so, does that render removal disproportionate whatever the offending or is it only exceptional if you are sentenced to 6 years but not if it is 10 years or 15 years? ”

36.

Analysis of questions such as these is not to be found in either the FTT or UT decisions. The relationship between the length of residence, the length of sentence and the gravity of the offending (consider, for example, murder, rape and terrorism) would require careful consideration on a fact specific basis, always keeping in mind that the reasons need to be compelling to outweigh the very strong public interest in the deportation of foreign criminals.

37.

For these reasons, the FTT has erred in law in its approach to the new rules. In upholding the FTT’s decision, the UT has likewise erred in law. Neither decision can stand. I would accordingly allow the appeal. As was common ground, if our decision is to allow the appeal, then the matter must be remitted to the UT for its reconsideration in the light of the judgments of this Court.

38.

For my part, by way of postscript, I am far from saying that, on the facts of this case it might not be open to the FTT (or UT) to conclude that there are compelling reasons for not deporting LW - based especially on the fact of 40 years’ (lawful) residence so as to make deportation unconscionable despite his sentence for dealing in class A drugs. But – an important but – it matters to public confidence that any such decision is reached appropriately, after due regard is had to the great weight to be attached to

Judgment Approved by the court for handing down.

SSHD –v- LW (Jamaica)

the public interest in the deportation of foreign criminals and with “exceptional circumstances” properly understood as meaning “compelling reasons”. Lord Justice Elias : 39.

I agree.

President of the Queen’s Bench Division : 40.

I also agree.

Neutral Citation Number: [2016] EWCA Civ 373 Case No: C4/2014/1422 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE ADMINISTRATIVE COURT Mr. Timothy Dutton Q.C. [2014] EWHC 1169 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Date: 13 April 2016 Before : LORD JUSTICE MOORE-BICK Vice-President of the Court of Appeal, Civil Division LORD JUSTICE McFARLANE and LORD JUSTICE BRIGGS ——————–Between : THE QUEEN (on the application of GOMES) - and SECRETARY of STATE for the HOME DEPARTMENT

Appellant Respondent

—————————————-Mr. Raza Husain Q.C. and Ms. Leonie Hirst (instructed by Wilson Solicitors LLP) for the appellant Mr. Robin Tam Q.C. and Mr. Tom Poole (instructed by the Government Legal Department) for the respondent Hearing date : 8th March 2016


Judgment

Judgment Approved by the court for handing down.

R (Gomes) -v- SSHD

Lord Justice Moore-Bick : 1.

The appellant, Mrs. Gomes, is a Portuguese national who entered this country with her husband in April 1998. The couple have three children. In July 2009 at the Crown Court at Kingston-upon-Thames she was convicted of an offence of cruelty towards one of the children, for which she was sentenced to 21 months’ imprisonment.

2.

The custodial portion of the appellant’s sentence ended on 11th July 2010, after which she would normally have been released on licence until the sentence as a whole expired on 26th May 2011. On 8th July 2010, however, the Secretary of State served the appellant with a notice of intention to make a deportation order against her and exercised her powers under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 authorising her detention pending the making of a deportation order against her. As a result, when the custodial portion of her sentence expired the appellant was kept in prison.

3.

The appellant exercised her right to appeal to the First-tier Tribunal, which, by a decision promulgated on 10th January 2011, allowed her appeal. The Secretary of State had a right within ten days to appeal to the Upper Tribunal against that decision, but she failed to do so, with the result that on 20th January 2011 the appellant was entitled to be released. However, on 25th January 2011 the Secretary of State filed a notice of appeal with the Upper Tribunal, which on 7th February 2011 granted her permission to appeal out of time. It is unnecessary for the purposes of this appeal to describe the subsequent course of events other than to say that the appellant remained in custody until 7th March 2012 when the Upper Tribunal granted her bail.

4.

By the present proceedings, which were commenced on 21st December 2011 while she was still in custody, the appellant sought to challenge the lawfulness of her detention. Her claim for judicial review was heard by Mr. Timothy Dutton Q.C. sitting as a Deputy Judge of the Queen’s Bench Division. Before the judge the appellant argued that she had been unlawfully detained for the whole of the period between 11th July 2010 and 7th March 2012 following her successful appeal against the original notice of intention to make a deportation order against her. The Secretary of State argued that she had been lawfully detained throughout the entire period, including the period between 20th January 2011, when time for appealing against the decision of the First-tier Tribunal in her favour had expired, and 7th February 2011, when the Secretary of State obtained permission to appeal out of time.

5.

The judge held that the statutory power to detain the appellant had lapsed when the time for appealing against the decision of the First-tier Tribunal had expired, but that her appeal reverted to being pending when the Secretary of State obtained permission to appeal out of time and that the authorisation for her continued detention which followed the Detention Review on 17th February 2011 was sufficient to justify her detention thereafter without the need for any further formal step. However, he also held that as from 2nd September 2011 the appellant could and should have been released to a suitable accommodation address and that her detention thereafter had been unlawful. He therefore granted a declaration that she had been unlawfully detained from 20th January 2011 to 17th February 2011 and from 2nd September 2011 to 7th March 2012 and gave directions for the assessment of damages. He also awarded the appellant 50% of her costs of the proceedings.

Judgment Approved by the court for handing down.

R (Gomes) -v- SSHD

6.

This is the appellant’s appeal against the judge’s order. She appeals on the grounds that he ought to have held that, since no formal authorisation had been given for her detention following the success of her appeal to the First-tier Tribunal, she had been unlawfully detained throughout the whole of the period from 20th January 2011 to 2nd September 2011 and that he should have granted a declaration to that effect. Moreover, since she had succeeded on a substantial part of her claim, he ought to have awarded her the whole of her costs. There is a cross-appeal by the Secretary of State on the grounds that no further authority for the appellant’s detention was required once she had obtained permission to appeal to the Upper Tribunal, but that if it was, it was provided by the decisions taken as part of Detention Reviews conducted on 25th January or 17th February 2011.

7.

Paragraph 2(2) of Schedule 3 to the Immigration Act 1971, under which the appellant was detained, provides as follows: “Where notice has been given to a person in accordance with regulations under Section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of the court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.”

8.

On 8th July 2010 the Secretary of State authorised the appellant’s detention using form IS91 in the following terms: “To: Ms Maria Monica Valente De Achada Gomes Portugal 05 May 1979 Whereas the Secretary of State has decided to make a deportation order under section 5(1) of the Immigration Act 1971 against Ms Maria Monica Valente De Achada Gomes a citizen of Portugal who is, at present, detained in pursuance of the sentence or order of a court and is due to be released otherwise than on bail on 11 July 2010 The Secretary of State hereby, in pursuance of paragraph 2(2) of Schedule 3 to that Act authorises any constable, at any time after notice of the decision has been given to the said Ms Maria Monica Valente De Achada Gomes in accordance with the Immigration Appeals (Notices) Regulations 1984 to cause her to be detained from the date of her release until the deportation order is made or an appeal against the decision under Part II of the Act is finally determined in her favour.”

9.

In the course of argument we canvassed with counsel a number of questions relating to the effect of the decision of the First-tier Tribunal on that authority for the detention of the appellant, which seemed to us to depend for its lawfulness on the existence of a valid notice of a decision to make a deportation order against her. We are particularly grateful to Leading Counsel for the Secretary of State, Mr. Robin Tam Q.C., for his assistance in relation to those questions and are satisfied, as he

Judgment Approved by the court for handing down.

R (Gomes) -v- SSHD

submitted, that in order to dispose of the appeal it is necessary for us to determine only two matters: (i) the true construction of the authority for detention and (ii) the effect of the Detention Review which took place on 25th January and 17th February 2011. (i) The authority for detention 10.

There are two parts to the document authorising the appellant’s detention. The first contains a notice informing the appellant of the Secretary of State’s decision to make a deportation order against her; the second contains the authority for her detention, by which any constable may cause her to be detained “until the deportation order is made or an appeal against the decision under Part II of the Act is finally determined in her favour.” Mr. Tam accepted that the appellant’s appeal had been finally determined in her favour when the time for appealing against the decision of the First-tier Tribunal expired on 20th January 2011, but he submitted that the position changed on 7th February 2011 when her appeal once again became pending as a result of the grant of permission to appeal. At that point, he argued, the authority was revived, so that, if the appellant had by then been released (as she should have been), she could have been arrested and detained once more pursuant to it.

11.

Mr. Husain Q.C. submitted that the document authorising the appellant’s detention should not be construed in that way. It was essential, he submitted, that when dealing with a matter as important as the liberty of the person the exercise of executive power be rigorously scrutinised and any warrant for detention expressed in clear terms. In particular, he submitted that the statutory provisions do not contemplate the existence of a warrant, the validity of which varies according to circumstances, including the fluctuating state of legal proceedings. He argued that the warrant ceased to have any effect when the time for appealing against the decision of the First-tier Tribunal expired and could not thereafter be revived.

12.

I start from the proposition that any infringement of the right to personal liberty must be clearly justified, both in terms of the existence of the power to detain and in terms of its exercise. It follows that the language of any warrant authorising detention is to be construed in favour of liberty and any ambiguity resolved in favour of the person against whom it is directed. In this case the warrant was expressed to authorise the appellant’s detention only until an appeal had been finally determined in her favour. That condition was satisfied when the time for lodging a notice of appeal to the Upper Tribunal expired. At that point the warrant lapsed and could not justify her continued detention. The question then is whether it purported to authorise a subsequent period of detention.

13.

I have a good deal of sympathy with Mr. Husain’s submission that the statute does not permit an ambulatory warrant of the kind for which Mr. Tam contended, but I do not think it necessary to determine that question in the present case. Mr. Tam drew our attention to the case of R (Erdogan) v Secretary of State for the Home Department [2004] EWCA Civ 1087, [2004] INLR 503, in which this court considered for the purposes of qualification for asylum support the distinction to be found in section 104 of the Nationality, Immigration and Asylum Act 2002 between an appeal under section 82(1) of that Act which is “pending” and one that has been “finally determined”. The court held that an appeal was no longer “pending” (and so had been “finally determined”) when the time for lodging a notice of appeal had expired, but it

Judgment Approved by the court for handing down.

R (Gomes) -v- SSHD

accepted that, if permission to appeal out of time were granted, the appeal would once again become pending. 14.

The expression “until . . . an appeal . . . is finally determined in her favour” is capable of being construed as extending to a time after the Secretary of State had obtained permission to appeal, but that would be to render the effect of the warrant uncertain. It does not expressly purport to authorise a subsequent period of detention or detention from time to time and I do not think it should be construed in that way. For reasons I have already given, I think it should be construed restrictively in favour of the appellant. Moreover, although in this case the delay in seeking permission to appeal was relatively short, there is no limit beyond which it can be said with confidence that the Upper Tribunal would decline to exercise its discretion to extend time in favour of the Secretary of State. Moreover, it is possible that the appellant might have succeeded before the Upper Tribunal, but failed on an appeal by the Secretary of State to this court. Since, as is common ground, the appellant was entitled to be released on 20th January 2011, it would be very unsatisfactory to construe the original warrant as authorising her arrest and detention many weeks, if not months, later. In my view, therefore, this warrant should be construed as authorising only one continuous period of detention, which in this case expired on 20th January 2011. (ii) The Detention Review

15.

The second question is whether the Detention Reviews which took place on 20th January and 17th February 2011 constituted authority for the appellant’s detention thereafter. Mr. Tam was at pains to emphasise that the statutory power to detain continued to exist and that the Secretary of State could exercise it again once she had obtained permission to appeal. That may be so, but the question is whether she did in fact do so. Mr. Tam submitted that she did, because, following a consideration of the circumstances surrounding the appellant’s case, the Secretary of State took an informed decision to authorise her continued detention. Mr. Husain submitted, on the other hand, that there is an important distinction between a formal warrant authorising a person’s detention and a decision to continue detention following a Detention Review, the sole purpose of which is to consider whether the existing position should be maintained. He submitted that in this context great importance is to be attached to compliance with the proper formalities. In the absence of a second warrant for the appellant’s detention signed by or on behalf of the Secretary of State, there was no exercise of the power available to her under the Act and so no lawful detention.

16.

Regular reviews in accordance with the Secretary of State’s published policy are a procedural obligation essential to ensure the lawfulness of continued detention: see R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23, [2011] 1 W.L.R. 1299. They are necessary because they are the means of ensuring that the power of executive detention is not used in an arbitrary fashion, but the policy is not the source of the Secretary of State’s authority to detain; that lies in the statute. In paragraphs 50 and 51 of his judgment in Kambadzi Lord Hope drew a distinction between the initial decision to detain, which will be lawful if made under the authority of the Secretary of State pending the making of a deportation order, and the decision to continue that detention following a review. Baroness Hale in paragraphs 69-72 emphasised that the requirement to conduct regular reviews is procedural in nature. Similarly, in paragraphs 83-84 Lord Kerr drew a distinction between an initial valid exercise of the power of detention and periodic reviews of its continued justification.

Judgment Approved by the court for handing down.

R (Gomes) -v- SSHD

All this tends to support the conclusion that, although regular reviews are essential to the lawfulness of continued detention, they cannot constitute a valid exercise of the statutory power. 17.

Mr. Tam submitted that to hold that the decision to continue to detain the appellant following the Detention Reviews on 25th January and 17th February 2011 respectively did not constitute authority for her detention would be to allow form to triumph over substance. I do not agree. Although, in general, substance is to be preferred to form, there are circumstances in which it is necessary to observe the correct form because only by doing so will the substantive requirements be satisfied. This is one of them. A Detention Review is an internal procedure conducted by the Home Office on behalf of the Secretary of State. A report of its outcome is given to the detainee, but not, apparently to anyone else. As far as the governor of the detention facility is concerned, authority for the detention of the person concerned is derived from the initial authorisation. In the present case once the original authorisation had lapsed, the governor of HMP Bronzefield, where the appellant was detained, was holding no valid authority for her continued detention.

18.

For these reasons I am satisfied that there was no lawful authority for the appellant’s detention after 20th January 2011 and that the appeal should therefore be allowed and the cross-appeal dismissed.

Lord Justice McFarlane : 19.

I agree.

Lord Justice Briggs : 20.

I also agree.

Case No. C4/2015/0217 Neutral Citation Number: [2016] EWCA Civ 384 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION (ANDREW THOMAS QC) Royal Courts of Justice Strand London WC2A 2LL Date: Wednesday, 23 March 2016 B e f o r e: LORD JUSTICE DAVID RICHARDS ————-Between: THE QUEEN ON THE APPLICATION OF RA (NIGERIA) Appellant v SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent ————-DAR Transcript of WordWave International Limited trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) ————-Mr R Halim (instructed by Duncan Lewis) appeared on behalf of the Appellant Miss J Anderson (instructed by Government Legal Department) appeared on behalf of the Respondent ————-J U D G M E N T (Approved)

1.

LORD JUSTICE DAVID RICHARDS: This is a renewed oral application for permission to appeal against a decision of Mr Andrew Thomas QC sitting as a Deputy High Court Judge in the Administrative Court, whereby he dismissed the application by the appellant for judicial review of a decision taken by the respondent Secretary of State dated 10 May 2013, whereby she refused to revoke a deportation order made against the appellant. In the decision, the respondent maintained a certificate placed on an anterior asylum claim that the application was clearly unfounded, thereby barring the appellant from making an in-country appeal against the decision. The relevant facts can be found in the judgment below, and I will not repeat them here.

2.

There are two grounds of appeal advanced by the appellant. The first ground takes issue with a statement made by the judge in the concluding part of his judgment that: “The defendant was entitled to take into account all of the other material which was available to her. On any view, Dr Sultan and Dr Burrun had far more information available to them than Dr Bell and had been better placed to assess the claimant.” Dr Sultan and Dr Burrun are psychiatrists who have treated the appellant during his detention, while Dr Bell is a distinguished psychiatrist who was consulted on the instructions of the appellant’s solicitors, and who examined the appellant. It is said that it was on that basis that the judge dismissed the claim, and it is objected that it leads to the proposition that the views of an independent medical expert instructed by the appellant can never gain sufficient parity with the views of doctors working within the immigration removal centre where the appellant was held.

3.

In my judgment, the judgment below does not involve that proposition. The judge was careful to read the reports of the psychiatrists and to weigh the decision of the respondent Secretary of State against those reports. I do not accept that the judgment indicates that if the judge had formed the view that it was unreasonable of the Secretary of State not to rely on the views of Dr Bell, that nonetheless the decision would have been correct simply because Dr Sultan and Dr Burrun had treated the appellant in the detention centres where he has been held. It does not appear to me that there is any proposition of that sort upon which the judge was relying. He was, in accordance with established authority, reviewing the decision taken by the Secretary of State to conclude that the application was clearly unfounded, and was simply reviewing that decision in the light of the evidence that was before the Secretary of State. So I do not consider that the appellant can show any real prospect of success on the first proposed ground of appeal.

4.

The argument in relation to the first ground moved on somewhat, because in her statement in opposition to the grant of permission to appeal, Miss Anderson on behalf of the respondent made reference the case of Das, in which this court held that the Secretary of State is generally entitled to rely on the opinions of the responsible clinicians in the event that there are conflicting medical opinions, and it has been pointed out by Mr Halim on behalf of the appellant that the issue decided in that case has been argued in another case, O, in the Supreme Court earlier this year and a decision from the Supreme Court is awaited.

5.

I do not think that the first ground of appeal actually engages this point, but I am inclined to accept the submission of Miss Anderson that reading the judgment below, and in particular having regard to the sentence which I have already quoted from paragraph 63, it is reasonably apparent that the judge shared the view of the Secretary of State that on the basis of the evidence before the court the opinions of Dr Burrun and Dr Sultan were to be preferred.

6.

The second ground of appeal focuses on the condition of the appellant as presenting a suicide risk, and on the opinion of Dr Bell that if he is told that he is to be returned to Nigeria, he will immediately present a suicide risk that will persist before, during and after his return to Nigeria. It is said on behalf of the appellant that having regard to his own subjective fears, he will continue to present a serious suicide risk in Nigeria, which the availability of psychiatric care in Nigeria will not materially reduce. Based on Dr Bell’s report it is said that, because of the appellant’s own subjective state, he will not access the psychiatric care available in Nigeria. It was the submission of the Secretary of State before the judge that there was psychiatric care available in Nigeria, and the judge accepts that as a fact and that acceptance is not challenged on this appeal. So it is not said that there will not be psychiatric care available to the appellant in Nigeria. It is said that only because of his own perceptions and conditions – and I do not mean by saying “only” to downplay them – that he will not gain access to the available care.

7.

The background to this is that, on his evidence is that his wife was murdered by Boko Haram and I think his home was destroyed, and he has strong fears that on his return to Nigeria he will be subject to detention or ill treatment by Boko Haram. It is not suggested that he would be exposed to any ill treatment by state authorities in Nigeria, nor that he would be deprived of protection against Boko Haram by the state authorities.

8.

It is submitted that this is a case which falls within the category discussed and decided by this court in Y (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362. The facts of that case were exceptional, and they were a long way from the facts of this case. The deportees in that case had been subjected to torture and other ill treatment by the state authorities in Sri Lanka, and their likely inability to access psychiatric care if they were returned to Sri Lanka was itself closely connected with their previous ill treatment by the Sri Lankan state. But the general principle quoted by the judge in this case, is stated in Y as follows: “Save in exceptionally compelling cases, the humanitarian consequences of returning a person to a country where his or her health is likely to deteriorate terminally do not place the returning state in breach of Article 3.”

9.

It is clear that while there may be a low standard to be applied in determining whether an appellant has a good prospect of overturning a decision that has been stated by the Secretary of State to be clearly unfounded, there is a high hurdle to be overcome in order to establish that a return to the appellant’s country will involve a breach of Article 3. The judge in this case was careful to have regard to the evidence before the court of the care available to the appellant, both before, during and after his return to Nigeria.

SMITH BERNAL WORDWAVE

Dr Bell himself accepts that emergency measures could be taken on the return of the appellant to Nigeria, but comments that the measures cannot be kept up indefinitely, and when they are removed the risk will return to what it was before. 10.

In my judgment, there is no real prospect of the appellant in this case persuading this court to reverse the decision of the judge below on this second ground. Having regard to all the circumstances and the evidence before the court, I do not consider that there is any real prospect of it being held to fall within the category of exceptionally compelling case where a return of the appellant to Nigeria would involve a breach of Article 3. There is no real prospect of persuading the tribunal, if an in-country appeal were permitted, that a breach of Article 3 would be involved.

Accordingly, I refuse permission to appeal.

SMITH BERNAL WORDWAVE

Case No: B2/2014/3770 Neutral Citation Number: [2016] EWCA Civ 394 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT HH Judge Bailey 3UB02139 Royal Courts of Justice Strand, London, WC2A 2LL Date: 19.4.2016 Before: Lady Justice Gloster Lady Justice King and Lord Justice Simon ——————–Between: (1) ICS Car Srl and (2) Fanel Toia

Appellants

and Secretary of State for the Home Department

Respondent

—————————————-Mr Parminder Saini (instructed by Mtg Solicitors) for the Appellants Mr Toby Riley-Smith QC and Ms Abigail Cohen (instructed by Government Legal Department) for the Respondent Hearing date: 16 March 2016


Judgment

Lord Justice Simon: Introduction 1.

On 14 May 2013 a heavy goods vehicle, operated by the First Appellant (‘the Owner’) and driven by the Second Appellant (‘the Driver’), was searched by Authorised Search Officers in the UK Immigration Control Centre at Calais where three Afghan nationals were discovered in the trailer. Following this discovery the Respondent (‘the Secretary of State’) imposed civil penalties on the Owner (£900) and the Driver (£600) under the provisions of the Immigration and Asylum Act 1999 (‘the 1999 Act’).

2.

That decision was challenged by way of appeal to the Central London County Court and, on 30 October 2014, His Honour Judge Bailey dismissed those appeals. The Appellants appeal against that decision. The uncontroversial facts

3.

The Owner is a freight company incorporated in Romania and the Driver is one of its employees. The Owner agreed to carry a consignment of copper wire from Osnabrück in Germany to a destination in the United Kingdom. The Driver picked up the consignment during the afternoon of 13 May 2013 and stopped for the night in Belgium. On the following morning he continued his journey to Calais, with a view to crossing the Channel by ferry during the afternoon. The lorry and trailer arrived at the UK Control Zone at the Port of Calais at a time which was recorded as being 9.50 am and was searched by Authorised Search Officers with dogs. They discovered three people concealed among the copper wiring in the trailer. It appeared that they had entered the trailer through a cut in the canvas roof. The relevant provisions of the 1999 Act

4.

Section 32 provides (1) A person is a clandestine entrant if ... (b) he passes, or attempts to pass, through immigration control concealed in a vehicle, or … and claims, or indicates that he intends to seek, asylum in the United Kingdom or evades, or attempts to evade, immigration control. (2) The Secretary of State may require a person who is responsible for a clandestine entrant to pay (a) a penalty in respect of the clandestine entrant,

(b) a penalty in respect of any person who was concealed with the clandestine entrant in the same transporter … … (6) In the case of a clandestine entrant to whom subsection (1)(b) … applies, each of the following is a responsible person (a) if the transporter is a detached trailer, the owner, hirer or operator of the trailer; (b) if it is not, the owner, hirer or driver of the vehicle. … (7) Subject to any defence provided for by section 34, it is immaterial whether a responsible person knew or suspected (a) that the clandestine entrant was concealed in the transporter, or (b) that there was one or more other person concealed with the clandestine entrant in the same transporter. … (10) ‘Immigration Control’ means the United Kingdom immigration control and includes any United Kingdom immigration control operated in a prescribed control zone outside the United Kingdom. 5.

Section 34 of the 1999 Act sets out the statutory defences to the imposition of penalties. For present purposes it is only necessary to refer to two of the provisions. … (3) It is a defence for the carrier to show that (a) he did not know, and had no reasonable grounds for suspecting, that a clandestine entrant was, or might be, concealed in the transporter, (b) an effective system for preventing the carriage of clandestine entrants was in operation in relation to the transporter; and © that on the occasion in question the person or persons responsible for operating that system did so properly. …

(4) In determining, for the purposes of this section, whether a particular system is effective, regard is to be had to the code of practice issued by the Secretary of State under section 33. 6.

The Secretary of State has issued a code of practice for vehicles pursuant to the terms of s.33 of the 1999 Act (‘the 1999 Code’), as well as a further code of practice issued under s.32A of the 1999 Act in relation to the level of penalties (‘2002 Code’).

7.

The 1999 Code of Practice sets out measures to be taken and steps to be followed by persons operating a system for preventing the carriage of clandestine entrants to the United Kingdom, and provides that a ‘prescribed control zone’ means ‘a control zone prescribed by regulations made by the Secretary of State.’ Part 1 of the 1999 Code applies to road haulage and paragraph 1.2 sets out: Measures to be taken immediately prior to the vehicle boarding the ship … or train to the United Kingdom, or before arrival at the UK immigration control operated in a prescribed control zone outside the United Kingdom.

8.

These measures include, at paragraph 1.2.3: Check the outer shell/fabric of the vehicle for signs of damage or unauthorised entry, paying particular attention to the roof, which may be checked from either inside or outside the vehicle.

9.

Section 35A of the 1999 Act sets out the process of appeal from the Secretary of State’s decision to impose a penalty, on the grounds either that there was no basis for the imposition of a penalty or that the level of penalty was too high. … (2) On an appeal under this section the court may (a) allow the appeal and cancel the penalty, (b) allow the appeal and reduce the penalty, or © dismiss the appeal. (3) An appeal under this section shall be a re-hearing of the Secretary of State’s decision to impose a penalty and shall be determined having regard to (a) any code of practice under s.32A which has effect at the time of the appeal, (b) the code of practice under s.33 which had effect at the time of the events to which the penalty relates, and © any other matters which the court thinks relevant (which may include matters of which the Secretary of State was unaware).

The challenge before HH Judge Bailey 10.

The imposition of penalties was challenged by the Appellants on three bases.

11.

The first argument was based on the interpretation of s.32(1) of the 1999 Act. The Appellants argued that the statute required the Secretary of State to prove two distinct matters: (i) that the three people had attempted to pass through immigration control concealed in a vehicle and (ii) that they were evading or attempting to evade immigration control.

12.

Secondly, it was argued that the Secretary of State had failed to prove that the place where the three people had been found was an area of ‘Immigration Control’ within the meaning of s.32(10) of the 1999 Act.

13.

Thirdly, the Appellants relied on the statutory defence under s.34(3) of the 1999 Act: (a) the Driver did not know, and had no reasonable grounds for suspecting, that a clandestine entrant was, or might be, concealed in the transporter; (b) the Owners had an effective system for preventing the carriage of clandestine entrants in the vehicle at the time; and © on the occasion in question the Driver, as the person responsible for operating the system, did so properly.

14.

The Judge set out the brief facts as I have outlined them above, while noting that the penalty of £300 per entrant was ‘relatively modest in the circumstances.’

15.

So far as the first argument was concerned, the Judge dealt with the matter shortly at [6] of his judgment: It seems to me that a person who conceals himself in a vehicle and makes absolutely no attempt whatever when the vehicle stops to make his presence known is at one [and] the same time both attempting to pass through immigration control and is also attempting to evade immigration control. There is no need, in my judgment, for there to be some separate action to demonstrate attempting to evade immigration control. The fact that the person concerned has concealed himself amongst a large quantity of copper wiring is clear evidence, it seems to me, of attempting to evade immigration control. The fact that in that situation he is also passing through immigration control simply shows that both elements of the requirement for s.32(1) are made out.

16.

As to the Appellants’ second argument, the Judge noted (at [10]) what was common ground before him: namely, that Calais was not ‘a prescribed controlled zone outside the United Kingdom’ within the meaning of s.32(10) of the 1999 Act. However, he found that the Berthside 9, Lane 907, where the lorry was stopped constituted ‘immigration control’ for the purposes of s.32(1) of the 1999 Act.

17.

The Judge expressed some surprise that there was no ‘clear specific evidence’ that Berthside 9, Lane 907 at Calais was a prescribed immigration control area; and the Secretary of State has belatedly recognised that her concession that the Port of Calais was not a prescribed controlled zone was wrongly made. On her behalf, Mr Riley-

Smith QC and Ms Cohen (neither of whom appeared below), seek to correct what they characterise as a ‘mistaken concession’, and to put before the Court material which shows that the Port of Calais is in fact a prescribed control zone for the purposes of the 1999 Act. 18.

In a later part of his judgment the Judge dealt with the Appellants’ third argument which relied on the statutory defence under s.34 of the 1999 Act. He referred to a document, entitled, ‘vehicle security checklist’, published by the UK Border Agency, which was designed to ensure that appropriate checks were made during the carriage of consignments and that such checks were recorded.

19.

The form that was completed in the present case indicated that an initial check was carried out after the loading of the consignment on 13 May, at a first (untimed) stop on 14 May and at a second stop on 14 May (timed at 09.29). The Driver had ticked the boxes in relation to each of these checks to indicate that the specific checks had been carried out. Relevant for present purposes were the ticks which indicated that on each inspection the roof was undamaged.

20.

There was also a column headed ‘final check’, which had not been completed.

21.

The Judge found that there had not been a final check before the vehicle entered the UK control zone, and that the vehicle security checklist indicated that such a check should have been made: If travelling through Calais, Coquelles or Dunkirk the final check should be carried out before entering the UK control zone ...

22.

It appears, and the Judge accepted, that the last check had been carried out during the second stop and that this was to be treated as the ‘final check’ for the purposes of the ‘vehicle security checklist’.

23.

One of the issues which was plainly of concern to the Judge was the point at which the second (and, in the event, last) check had been carried out. His view was that it had been carried out at 09.29 and that the time at which the vehicle was checked by UK Immigration Control had been 09.50. On this basis he concluded that the vehicle could have travelled an appreciable distance in this period and that consequently the final check had not been carried out ‘before entering the UK control zone.’ He decided that the Driver (as the person operating it) had not operated the system properly. As he put it, at [24], ‘Had anybody looked at the roof immediately before the trailer entered the control zone they would have seen the slit in the roof.’

24.

For reasons which I will come to, in my view the Judge took a view of the documentary evidence which was over-generous to the Appellants in relation to the time and distance travelled by the vehicle between the point at which the last check was carried out and the point at which it was inspected by UK Immigration Control. The applications

25.

There are two applications before the Court: an application by the Appellants for leave to rely on further evidence as to the current conditions faced by hauliers and

drivers when transporting goods by road through Calais; and an application by the Secretary of State to withdraw the concession that the place where the vehicle was stopped by UK Immigration Control was not a prescribed control area. The Appellants’ application 26.

The Appellants produced a bundle of news reports about the conditions at Calais which they invited the Court to receive under CPR Part 52.11(2)(b). Mr Saini submitted that this material furthered the overriding objective set out in CPR Part 1.1, and that its admission was consonant with the well-established principles which apply to the receipt of fresh evidence, see Ladd v. Marshall [1954] 1 WLR 1489: the evidence could not have been obtained with reasonable diligence for use at trial; if available at trial it would probably have had an important (although not necessarily decisive) influence on the result of the case; and the evidence was apparently credible.

27.

Mr Saini further submitted that since the Court has not considered the issue of statutory penalties in this type of case for a number of years it should be aware of current events so that it would not have to consider the issues which arise on this appeal ‘in a vacuum’.

28.

The Court refused the Appellant’s application and indicated that it would give its reasons later.

29.

In my view there were a number of reasons why it would have been wrong to admit the material. First, it did not shed any significant light on the issues the Court had to decide. The relevant provisions of the 1999 Act, the 1999 Code and the Owner’s vehicle security checklist are all premised on the problem of clandestine entrants seeking to evade immigration control by taking steps to enter and conceal themselves within heavy goods vehicles. Secondly, it did not add anything to the relevant background, accepted by the Judge in the present case, that the three people found hiding in the trailer had entered by cutting through the tarpaulin roof. Finally, I am not persuaded that the material was (strictly speaking) in evidential form, consisting as it did of a number of news reports copied from the internet. The Secretary of State’s application

30.

As set out above, the Secretary of State now wishes to correct what she says was a mistake, common to both parties but which Mr Riley-Smith was bound to accept was primarily the fault of her representatives, since the relevant Regulation is a Home Office Regulation.

31.

It is now apparent, and Mr Saini very sensibly concedes, that Regulation 5(1) of the Carriers’ Liability Regulations 2002 (the ‘2002 Regulations’), which came into force on 1 March 2004, provides that the Port of Calais is a prescribed control zone for the purposes of the 1999 Act. 5. Clandestine entrants: prescribed control zone (1) The following control zones outside the United Kingdom are prescribed for the purposes of section 32(10) of the Act—

(a) that part of the territory of France situated at Coquelles which is a control zone for the purposes of the International Articles or the Tripartite Articles; and (b) that part of the territory of France within a port designated in Schedule to the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003 in which immigration officers exercise immigration control pursuant to the Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the French Republic concerning the Implementation of Frontier Controls at the Sea Ports of Both Countries on the Channel and North Sea. 32.

The list of designated ports in Schedule 1 to the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003 (the ‘2003 Order’) includes Calais.

33.

Mr Riley-Smith referred to a number of cases in which the courts have described the extreme caution that must be exercised before a party will be permitted to withdraw a concession made in the Court below, see for example: Jones v MBNA [2000] EWCA Civ 514, Peter Gibson LJ at [38] and May LJ at [51]-[52], Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40, [2002] 1 WLR 3024, 3034. Lord Bingham at [21], Paramount Export Ltd (in Liquidation) v New Zealand Meat Board [2004] UKPC 45, Lord Hoffmann at [47].

34.

In Crane (t/a Indigital Satellite Services) v Sky In-Home Limited [2008] EWCA Civ 978, Arden LJ summarised the position at [22]: The circumstances in which a party may seek to raise a new point on appeal are no doubt many and various, and the court will no doubt have to consider each case individually. However, the principle that permission to raise a new point should not be given lightly is likely to apply in every case, save where there is a point of law which does not involve any further evidence and which involves little variation in the case which the party has already had to meet (see Pittalis v Grant [1989] QB 605). (If the point succeeds, the losing party may be protected by a special order as to costs.) Sometimes a party will seek to raise a new point because of some other development in the law in other litigation, which he could not fairly have anticipated at the time of the trial. In some cases, the court may wish to take into account the importance of the point raised. Likewise, in [Paramount Export], one of the factors which influenced the Privy Council was the fact that it was in the public interest to allow a public body, which would otherwise end up liable to pay large sums, to raise on appeal a point of construction involving no new evidence.

35.

In the present case, it is, at the very least, highly unfortunate that neither party drew the relevant Regulations and Order to the attention of the Judge. Despite his doubts, both counsel repeatedly assured him that there was no relevant regulatory provision.

The concession did not affect the evidence that was relied on, did not form the basis of an unfavourable judgment and its withdrawal does not require any further evidence. 36.

In these circumstances, I am quite clear (subject to any material issue of costs) that this Court ought to proceed on the basis of the law as it is and not as it was wrongly supposed to be. The first ground: ‘clandestine entrant’

37.

For the Appellants Mr Saini repeated the submission that he had made to the Judge below: that the definition of ‘clandestine entrant’ in s.32(1) involved two separate elements so far as the present case is concerned: (a) an attempt to pass through immigration control while concealed and (b) an attempt to evade immigration control.

38.

While I accept that both elements are required, like the Judge, I am quite satisfied that both elements were present on the facts of the present case. The three people were concealed in the trailer behind the load and were, thereby, both attempting to pass through and attempting to evade immigration control. I reject the argument that the second element of the offence has to occur subsequently to the first element in order for the stowaways to fall within the description of clandestine entrants. The second ground: Prescribed Control Zones

39.

The Appellants objected to the concession being withdrawn, but did not otherwise make submissions on the effect of Regulation 5(1) of the 2002 Regulations and Schedule 1 of the 2003 Order.

40.

It is now clear that the relevant events took place at Immigration Control within a prescribed control zone. In these circumstances, the argument on the second ground must fail. The third ground: the Statutory Defences

41.

Mr Saini submitted, by reference to s.34(3) of the 1999 Act, that the Appellants (a) did not know, and had no reasonable grounds for suspecting, that clandestine entrants were or might have been concealed in the trailer, (b) had an effective system for preventing the carriage of clandestine entrants, and © on the occasion in question the Driver operated the system properly.

42.

The evidence produced by the Appellants from GPS tracking showed that the second (and last) check was carried out in Belgium after the vehicle had travelled approximately 445 kms on its journey from Osnabrück, and that the vehicle reached the UK Immigration Control at Calais having travelled approximately 548 kms from Osnabrück (approximately 103 kms further). The Judge assumed that the time taken between the last check and entering UK immigration control was approximately 21 minutes and this mistake was probably due to the different time zone (BST) within the UK Immigration Control area. However, whatever the reason, the evidence is clear: the last check of the vehicle took place over 100 kms from Calais.

43.

Mr Saini submitted that it was immaterial where the last check was carried out provided it satisfied the s.34(3)(b) test of being part of an effective system for preventing the carriage of clandestine entrants.

44.

It seems to me that there are a number of problems with this submission. First, although paragraph 1.2 of the 1999 Code could have been better expressed, the intent is clearly that the checks described at paragraph 1.2.3 (including inspection of the roof) should be carried out immediately prior to the vehicle boarding the ship or train, and (where applicable) immediately before arrival at the UK Immigration Control. Secondly, the printed form of the Owner’s vehicle security checklist envisages a ‘Final Check’ which was plainly not carried out in the present case.

45.

In my view the Appellants’ contention, that a system which involved a last check which was carried out over 100 kms from UK Immigration Control constituted an effective system for preventing the carriage of clandestine entrants, is unsustainable; as is the contention that the Driver operated the system properly.

46.

For these reasons, which are elaborations of the Judge’s conclusion on the point, I reject the Appellants’ third ground. In these circumstances it is unnecessary to say anything further about the Judge’s doubts as to whether the checks which were said to have been carried out at the last stop had in fact been carried out. Conclusion

47.

For these reasons I would dismiss the appeal.

Lady Justice King 48.

I agree.

Lady Justice Gloster 49.

I also agree.

Case No: C3/2014/0321 Neutral Citation Number: [2016] EWCA Civ 395 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (Administrative Appeals Chamber) Judge Edwards Jacob CE41532012 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/04/2016 Before : LADY JUSTICE ARDEN LORD JUSTICE DAVID RICHARDS and MR JUSTICE MITTING ——————–Between : Iman Alhashem - and The Secretary of State for Work and Pensions

Appellant Respondent

—————————————-Helen Mountfield QC and Tom Royston (instructed by Howells Solicitors) for the Appellant Julia Smyth (instructed by Government Legal Department) for the Respondent Hearing date: 15 March 2016


Judgment

LADY JUSTICE ARDEN:

ISSUE FOR DECISION AND SUMMARY OF CONCLUSION

1.

This appeal is about social security and raises questions of law to which EU law applies.

2.

Mrs Alhashem, a Dutch citizen, has been living in the UK since 2010. She was at first awarded job seeker’s allowance (“JSA”), but this ended because she was unable to sign on for work because of ill health. She then applied for employment and support allowance (“ESA”). On 12 November 2011, the Secretary of State refused her claim on the basis that she did not have the right to reside in this country. She appealed to the First–tier Tribunal (“the FTT”) on two grounds. Only the second ground is relevant. She claimed that it was not permissible under EU law to deny access to benefits intended to facilitate access to the labour market to someone who had the right to reside as a job seeker, so that ESA had to be made available to jobseekers in the UK who met the financial conditions for eligibility. The FTT rejected this ground, as subsequently did the Upper Tribunal (“the UT”) (Upper Tribunal Judge Edward Jacobs) on appeal to it. Judge Jacobs concluded that: [ESA] is for claimants who are unable to access the labour market. As a condition of receiving the benefit, claimants may have to undertake work-related activity in order to help them get fit for work. But that does not make [ESA] a benefit that is intended to facilitate access to the labour market in the sense of EU law. (emphasis in the original)

3.

Judge Jacobs amplified his conclusion when refusing permission to appeal to this Court: The purpose of work-related activity is to assist a claimant to recover sufficiently to be able to work. In other words, it operates at a stage that is preliminary to the point at which a claimant could access the labour market within the meaning of EU case law.

4.

Mrs Alhashem, for whom Ms Helen Mountfield QC together with Mr Tom Royston appears, contends this reasoning is erroneous in law. The Secretary of State, for whom Ms Julia Smyth appears, contends that the decision of the UT was right essentially for the reason that the UT gave.

5.

In my judgment, the contention of the Secretary of State is correct for the detailed reasons given below. EU law makes a distinction between “social assistance” and benefits paid to enable a job seeker’s integration into the labour market (“labour market-related benefits”). EU law requires the latter only to be made available to job seekers who are EU citizens coming from other member states and meet the financial conditions for eligibility. In Case C-67/14 Jobcenter Berlin Neukolln v Alimanovic,

the CJEU stated the test for identifying the category into which a benefit falls: the test is whether the function of the benefit is “predominantly” for facilitating access to the job market. If this is met, the benefit is a labour market-related benefit. This category does not include benefits paid to provide welfare for persons with a disability who cannot, or cannot yet, work to enable them to subsist. EU law thus recognises that, unless the liability of a state paying non-contributory benefits is restricted by an appropriate test, a state which pays generous benefits may be the subject of “benefits tourism”, where persons move to that state to take advantage of non-contributory benefits. Applying that test to the facts, ESA is social assistance and not a labour market-related benefit. MORE ABOUT ESA 6.

ESA was introduced by the Welfare Reform Act 2007 to replace incapacity benefit. It is aimed at promoting a change in attitudes to people with disabilities with regard to work. The impact assessment stated that the starting point for the assessment would be that the overwhelming majority of customers were capable of some work, given the right support. That would lead to better employment outcomes for people with disabilities. Treating people in line with their capabilities, instead of making assumptions based on their condition, would have a positive impact on the attitude of others to people with disabilities.

7.

When claimants apply for ESA, they undergo a work capability assessment to see whether they have a limited capability to work and, if so, whether they also have a limited capability for work-related activity. Work-related activity depends on what it is reasonable for a claimant to do. Examples include attending workshops to learn how to write a CV, or basic skills training (it is said that this facility may make this benefit more attractive to some job seekers than JSA). I will call individuals who have made valid claims whose claims are being assessed “the WCA group”. If Mrs Alhashem’s claim was accepted as valid she would start in this group.

8.

If the individual has limited capability to work and also limited capability to undertake work-related activity, he or she is placed in a support group (“the Support Group”). If an individual has a limited capability to work but does not have limited capability to do work-related activity, he or she is placed in a separate group (“the Work Related Activity Group”). The individual is expected to engage in that activity as a condition of receiving benefits. This requirement is known as “work-related conditionality.” I will call this group of claimants “the third group.” Rules enable a person receiving ESA to do some specified types of work while receiving the benefit. Of those applying for ESA for the period January to March 2015, some 74% were found to be entitled to ESA. Of those, 64% were placed in the Support Group and 11% were placed in the Work Related Activity Group (these percentages are approximate but are adjusted for the outcome of appeals): see Employment and Support Allowance: outcomes of Work Capability Assessments, Great Britain, Quarterly official statistics bulletin 10 December 2015.

9.

We are concerned here with only one type of ESA, namely ESA as a non-contributory benefit. It is paid to a person because of his inability to support himself by work due to disability. It is paid irrespective of his contributions paid by deductions from wages. A job seeker who comes to the UK from another member state and has never

previously been a worker in the UK will not therefore have made any contributions to public funds to support the payment of this benefit. 10.

Since the decision of the Upper Tribunal, both parties filed witness statements – by Mr Michael Spencer, a Solicitor employed by the Child Poverty Action Group in the case of the appellant and by Mr Iain Walsh, Head of the ESA and Work Capability Assessment Policy Division at the Department for Work and Pensions respectively. By filing this evidence, the parties intended to assist this Court, which does not have the specialist knowledge of the FTT or UT in this case, better to understand the nature of the benefit: it was succinct and informative. I would admit that evidence. We cannot of course resolve an issue of fact on which the deponents disagree.

RELEVANT EU CASE LAW 11.

EU law allows a member state to confine “social assistance” to those who lawfully reside in that state: see, in relation to workers from other member states, Case C456/02 Trojani v Centre Public d’aide sociale de Bruxelles. This right is preserved by Article 24(2) of the Citizenship Directive (Directive 2004/38). This however also gives member states the option to withhold types of “social assistance” from certain types of citizens of other member states. The concept of “social assistance” is very broad: it covers “all assistance introduced by the public authorities, whether at national, regional or local level, that can be claimed by an individual who does not have resources sufficient to meet his own basic needs and the needs of his family” (C-140/12 Pensionsversicherungsanstalt v Brey at [61]).

12.

But there are special rules for job seekers and workers. A member state must in general make benefits which are paid to these groups available also to EU citizens who are not resident in that state but are exercising their freedom of movement rights as job seekers or workers.

13.

The scope of the special rule for job seekers has been considered by the CJEU. The function of the CJEU is to provide the national court with the elements for the interpretation of EU law which may be of assistance to it in deciding the case pending before it. It is for the national court to carry out the determination of fact necessary to enable it to determine the application of EU law in the case before it. I shall set out a summary of the elements of interpretation provided by three decisions of the CJEU about the entitlement of job seekers to social security benefits in another member state. I examine these in chronological order. The third is the most important on this appeal, but it needs to be read together with the other two to deduce the current state of EU law.

14.

Case-138/02 Collins v Secretary of State for Work and Pensions [2005] QB 145 decides that the principle of non-discrimination applied to a decision by a member state to discriminate against workers and job seekers from other member states in paying financial benefits, and the UK had to pay relevant benefits to workers and job seekers from another member state on the same basis as residents, subject to proportionate restrictions to enable it to establish whether there was a “genuine link between [the claimant] and the employment market of that member state” (a “genuine link”) (Judgment, [67]). This could be established where a person had, for a reasonable period, genuinely sought work in the member state in question (judgment, [70]). Collins concerned JSA, which is paid to help job seekers with very limited

income while they look for employment. The UK required applicants to be habitually resident in the UK. The CJEU held that such a test could be imposed only for the period necessary to verify that the claimant was genuinely seeking work in the UK. 15.

The relevant benefits (“labour-market related benefits”) were those “intended to facilitate access to employment in the labour market of a member state” (Judgment, [63]). Case C-22/08 and case C-23/08 Vatsouras v ARGE Nurnberg 900 [2009] All ER (EC) 747 recognised that there was a narrow dividing line between some social assistance and labour market–related benefits and explained the task for national courts in distinguishing between the two. Not surprisingly, the CJEU held that the benefit had to be analysed according to its results and not its formal structure. The national court had to consider the constituent elements of the benefit. Specifically, a condition that a person had to be capable of earning a living could constitute an indication that a benefit was labour market-related.

16.

In Alimanovic, which was decided in September 2015 after Beatson LJ gave permission to appeal to this Court, the Grand Chamber of the CJEU addressed the categorisation of a German means-tested benefit (“SGB II”) for which job seekers who were fit to work in the foreseeable future were eligible. SGB II was expressed to consist of two parts: (1) to meet their basic subsistence costs to enable them to live in keeping with human dignity, and (2) to facilitate their integration into the labour market. A claimant had to have a right to reside in Germany other than because he was a job seeker. The CJEU held that “social assistance” included benefits paid to enable an individual who does not have sufficient resources of his own to meet his basic needs (Judgment, [44]). The further issue was whether, where a benefit was in part social assistance and in part labour market–related, the benefit was to be categorised according to its predominant function. I discuss the CJEU’s reasoning on this point in the next section of this judgment.

SUBMISSIONS AND DISCUSSION 17.

I now consider the parties’ submissions and set out my reasons for accepting or rejecting them. The issues may be divided into four broad areas: (1) the relevant test for distinguishing social assistance from labour market-related benefits, (2) the application of that test to the facts, (3) the possibility of applying the test to the labour market-related element of ESA as a stand-alone benefit and (4) some final points about points we are not deciding.

(1) The relevant test for distinguishing social assistance from labour market-related benefits: emergence of “predominant function” 18.

The ultimate issue here is whether the test for distinguishing social assistance from labour market-related benefits is that in Vatsouras or that in Alimanovic. In their submissions, the parties also addressed the differences between the two tests.

19.

Ms Mountfield submits that the test laid down in Vatsouras was one of intention: thus the CJEU held that “benefits of a financial nature which independently of their status under national law are intended to facilitate access to the labour market cannot be regarded as constituting social assistance within the meaning of Article 24(2) of Directive 2004/38” (Judgment, [45]). The benefit must therefore be intended to facilitate access to the market. It is a question of looking at what was intended and (as

counsel put it) whether that was the function of the benefit in question, and not solely of assessing the predominant means by which the benefit performed that function. 20.

She submits that the test of intention remains good law. In Alimanovic at [46], the CJEU used this test without criticism or qualification.

21.

Ms Smyth submits that what happened is that some member states thought that the adoption of Article 24(2) of Directive 2000/38 had affected the decision in Collins. The CJEU confirmed in Alimanovic that this had not happened and that a benefit was not within Article 24(2) if it was a labour market-related benefit. On Ms Smyth’s submission, Alimanovic does two things: it clarifies Vatsouras and it makes it clear that a benefit will only be a labour market-related benefit if its predominant purpose is to facilitate access to the labour market. That means that, where the benefit paid to a job seeker provides the job seeker with subsistence, which is “social assistance” for EU law purposes, predominant function is now the test.

Conclusion on Issue (1) 22.

There is an important difference between intention and function. The latter enables the court to take into account the social context and outcomes of the benefit, and not just the intentions of those who promote it and the terms and conditions of the benefit. If, for example, in this case the relevant factor is the predominant function of the benefit, it is possible to take into account that numerically the largest group of those entitled to it have such reduced capability for work that they are in general unable to access the labour market. That would not be so if the test were merely one of intention.

23.

The critical passage of the judgment of the CJEU in Alimanovic dealing with the distinction between social assistance and labour market-related benefit is as follows: 42

Since the issue of whether the benefits at issue constitute ‘social assistance’ or measures intended to facilitate access to the labour market is determinative for the purposes of identifying the EU rule under which that compatibility falls to be assessed, it is necessary to classify them.

43

In this connection, it is sufficient to note that the referring court has itself characterised the benefits at issue as ‘special non-contributory cash benefits’ within the meaning of Article 70(2) of Regulation No 883/2004. It states in that regard that those benefits are intended to cover subsistence costs for persons who cannot cover those costs themselves and that they are not financed through contributions, but through tax revenue. Since those benefits are moreover mentioned in Annex X to Regulation No 883/2004, they meet the conditions in Article 70(2) thereof, even if they form part of a scheme which also provides for benefits to facilitate the search for employment.

44.

That said, it should be added that, as is apparent from the Court’s case-law, such benefits are also covered by the concept of ‘social assistance’ within the meaning of Article 24(2) of Directive 2004/38. That concept refers to all assistance schemes established by the public authorities, whether at national, regional or local level, to which recourse may be had by an individual who does not have resources sufficient to meet his own basic needs and those of his family and who by reason of that fact may, during his period of residence, become a burden on the public finances of the host Member State which could have consequences for the overall level of assistance which may be granted by that State (judgment in Dano, C-333/13, EU:C:2014:2358, paragraph 63).

45.

However, in the present case it must be found that, as the Advocate General observed in point 72 of his Opinion, the predominant function of the benefits at issue in the main proceedings is in fact to cover the minimum subsistence costs necessary to lead a life in keeping with human dignity.

46.

It follows from those considerations that those benefits cannot be characterised as benefits of a financial nature which are intended to facilitate access to the labour market of a Member State (see, to that effect, judgment in Vatsouras and Koupatantze, C-22/08 and C-23/08, EU:C:2009:344, paragraph 45) but, as the Advocate General observed in points 66 to 71 of his Opinion, must be regarded as ‘social assistance’ within the meaning of Article 24(2) of Directive 2004/38.

24.

In my judgment, the test for distinguishing social assistance from labour marketrelated benefit is now plain from this passage. The CJEU has restricted the labour market-related benefits which an EU citizen from another member state can claim by virtue of EU citizenship to those whose sole or predominant function is to facilitate access to the labour market, and left it to the member state to decide what, if any, other benefits he should have. In other words, it has taken a narrow approach to what is a labour market-related benefit. Specifically it does not include a mere subsistence benefit. Moreover, the CJEU expressly confirmed that result in the later case of C299/14 Vestische Arbeit Jobcenter Kreis Recklinghausen v Garcia-Nieto, but I need not go to that case as well.

25.

The fact that in Alimanovic the CJEU continues to refer to Vatsouras is not conclusive. It does not mean that the CJEU did not expand its case law in Alimanovic. The position is that it was not necessary for the CJEU to state that it had qualified Vatsouras because in Alimanovic it was dealing with a new argument. The referring court had not asked for a ruling on the interpretation of EU law where a single benefit had both types of benefit within it.

26.

The CJEU’s test looks for a close relationship with the labour market. The CJEU has taken the terminology of intention to facilitate access to the labour market as set out in Vatsouras but explained that test by stating that a subsistence benefit is not enough and by holding that if there is some element of facilitation of access to the market, the test is whether that it is the predominant function of the benefit. It does not further define what a labour market-related benefit is because that explanation was enough to decide the case before it.

27.

I appreciate that Alimanovic thus read leads to the conclusion that the decision reduces the amount of benefits which an EU citizen can claim in every member state and potentially create two tiers of EU citizens in a single member state (those entitled to social assistance and those not so entitled). They are not treated equally in the circumstances in issue in Alimanovic. However that result is a logical consequence of the fact that social benefits are only available by virtue of EU citizenship in another member state where a claimant is a worker or job seeker exercising his right to freedom of movement (see Collins). Because of that, there are inherent limitations in any event on EU citizenship as a passport to EU-wide social benefits.

28.

An analogy can be drawn with economically inactive claimants. In Sanneh v Secretary of State for Work and Pensions [2015] 2 CMLR 27 (Arden, Elias and Burnett LJJ) the claimant was a third country national who was a Zambrano carer, that is, an individual who was neither an EU citizen and nor a worker or job seeker, and who claimed benefits as the carer of a child who was an EU citizen in right of the EU Charter of Fundamental Rights. This Court held that EU law had no competence in the level of social security benefits which should be paid to a Zambrano carer. The principle of non-discrimination did not apply as the individual was not an EU citizen. I refer to this case to show that EU law is not a passport to the same social benefits in every member state in every situation. There is a place for separate national benefit systems in which claimants from another member state cannot always participate.

29.

Ms Mountfield in her submissions addressed the question of the protection of the public finances of a state against abuse from “benefits tourism”. She submits that the protection against any member state receiving too many so-called job seekers is that the job seekers have to show some capacity to work and that they are genuinely seeking work and have a link to this country: see generally Collins at [58]. This point is not determinative because the question for this court is the effect of the CJEU case law and in my judgment that is clear. It is correct, however, to say that the CJEU has expressed concern about protection of a member state’s finances and the need to ensure that a member state’s social security schemes are financially viable: see, for example, the statement by Advocate General Wathelet in Case C-333-13 Dano v Jobcebter Leipzig at [132] that: “It has also accepted that the risk of seriously undermining the financial balance of a social security system may constitute an overriding reason in the public interest capable of justifying barriers to the fundamental freedoms.”

30.

In paragraph 43 of its judgment in Alimanovic, the CJEU explained that the referring court had treated the benefit in that case as social assistance because it was a special non-contributory cash benefit for the purposes of Annex X of Regulation 883/2004 (see [43] in paragraph 23 above). Non-contributory ESA and also JSA are listed in that Annex. It is, however, common ground that that factor does not determine whether a benefit is a labour market-related benefit, as is also clear from Alimanovic.

I do not therefore need to go further into the effect of ESA being included in Annex X of that Regulation. (2) Application of the predominant function test to ESA: ESA does not satisfy the test as its primary function is the welfare of eligible claimants 31.

As Ms Smyth submits, the crucial question for the Secretary of State is the proper classification of ESA: is it a labour market-related benefit or is it social assistance? If it is simply an unemployment benefit focussed on a small group of claimants, it would be the former. And if ESA is to be analysed as the former, any job seeker, such as Mrs Alhashem may be, may claim it. If it is the latter, it may be restricted to those in the UK.

32.

I approach this question on the basis that the predominant function test applies as I have reached the conclusion that that is the applicable test (see Issue (1) above).

33.

Ms Mountfield submits that the predominant function of the ESA is to provide a benefit which is intended to facilitate access to the labour market.

34.

The first stage of Ms Mountfield’s argument is to rely on descriptions of ESA in various documents, particularly those issued by the Secretary of State. For example, the Department for Work and Pensions’ published description of ESA reads: Employment and Support Allowance helps people with an illness or disability to move into work. …

Therefore ESA is not simply about subsistence. Ms Mountfield adopts the following passage from the report of the Select Committee on Merits of Statutory Instruments, 18th Report, which states “10.

The ESA will focus on how people can be helped into work and will not automatically assume that because a person has a significant health condition or disability they are incapable of any work… ”

35.

The next stage in Ms Mountfield’s argument highlights the work-related conditionality of ESA for the third group. The Work Related Activity Group can be required to do work-related activity and there could be no purpose in this other than to facilitate access to the labour market. This significance of work-related conditionality is increased by the fact that, to be required to do work-related activity, a claimant’s work capability does not have to be severely limited. One specified task which a person must complete in the course of assessment to show inability to undertake work-related activity is to complete a simple task, such as setting an alarm clock, which suggests that the Work Related Activity Group is intended to be the largest possible group.

36.

The third stage in Ms Mountfield’s argument is that ESA claimants are permitted to work to some extent. So ESA claimants may be working as well as claiming benefit and so the benefit is in those cases clearly intended to facilitate access to the labour market.

37.

Ms Smyth submits that ESA does not facilitate access to the labour market as this must mean immediate access. Moreover ESA does not have a predominant function of doing so. ESA is a safety net: it is to help those who cannot help themselves. It is unreal to suggest that ESA facilitates access to the labour market or that that is its purpose or function. For claimants in the third group (only), it is about the possibility of work in the future. It is a key feature of the ESA that it is payable only to those with limited capability for work: see section 1 of the 2007 Act, which makes that a condition of the benefit. Some will be offered work related activity but that is related to work in the future.

38.

Furthermore, on Ms Smyth’s submission, ESA is not designed like a benefit to be paid to job seekers. It is clear from Case C-289/92 R (o/a Antonissen) v Immigration Appeal Tribunal [1991] ECR-1 745 and Elmi v Secretary of State for Work and Pensions [2012] PTSR 780 that the state can check whether a person is entitled to a benefit. But, with ESA, the Secretary of State has no right to check if a person could look for a job. ESA is therefore unsuitable for a state to provide for job seekers because the Secretary of State cannot check that a person is searching for work and the person cannot be required to take work.

39.

Moreover in Alimanovic the CJEU took the unusual step of holding that the benefit in question in that case, SGB II, was not a labour market-related benefit. It did not take the usual step of stating the interpretation of applicable EU law and leaving the national court to apply that interpretation to the facts. How then, asks Ms Smyth, can ESA be such? SGB II conferred a broader benefit beyond that available to job seekers. It was a merger of two previous systems. It covered those who did not have sufficient means (e.g. asylum seekers). It was all means-tested.

40.

Both Counsel refer to Case C-224/98 D’Hoop v Office National d’Emploi [2002] 3 CMLR 12. This was about a Belgian benefit called a tideover allowance which enabled new entrants to the employment market who had completed secondary education in Belgium to be treated as unemployed and on benefit so that the state was responsible for their remuneration and social security contributions. The terms of this benefit were held to breach EU law on freedom of movement. In Alimanovic this tideover allowance was specifically described as a labour market-related benefit. Ms Mountfield stresses that this was so even though there was no conditionality. ESA therefore must be a labour market-related benefit a fortiori.

41.

Ms Smyth submits that neither Advocate General Wathelet nor the CJEU in Alimanovic placed any reliance on conditionality. The CJEU in particular looked at the predominant function of the benefit and not its detailed terms.

Conclusion on Issue (2) 42.

It is clear from the history of ESA that it is primarily provided for those who cannot work or who are on the borderlines due to some disability or past episode in their lives. Some of these claimants will in future be able to work, and a further aim of the benefit is to provide facilities which will enable them to do so. That is at least partly a question of social policy inspired by an aim of treating individuals affected by disability with dignity and helping them to realise their maximum potential. But facilitating an entry into work is not the predominant function of the benefit.

43.

The statistics as to the percentage of claimants in the Support Group receiving ESA (64% of the 74% of claimants found to have valid claims) makes it impossible to conclude that the predominant function of ESA is to facilitate access to the labour market. That means that roughly 87% of those eligible for ESA are put into the Support Group: they are treated as having limited capability to do both work and work-related activity. Neither claimants in the WCA group nor those in the Support Group are required to do any work-related activity for the reason that their assessed or potential capability for work-related activity is recognised to be limited. It makes no sense to treat the benefit paid to them as intended to facilitate access into the labour market.

44.

I reject Ms Mountfield’s submission that these numbers must be disregarded because the benefit is still (to some degree) intended to facilitate access to labour market. That submission fails to take account of the fact that the CJEU has decided that the character of a benefit must be determined by its predominant function and thus the terms of the benefit received by the majority of claimants and the abilities of those claimants are undoubtedly relevant.

45.

The rationale of the EU law requirement that nationals of other member states participate equally in benefits paid to facilitate access to the labour market is to support the internal market by putting job seekers from other member states on an equal footing with those resident within the member state where they seek to work. It is not to put those with limited capability to work into the same position as regards training and preparation for work as those in different member states. The fact that an aim of ESA is to help some people back into work where possible at some future point in time cannot therefore convert ESA into a labour market-related benefit any more than the element of benefit in Alimanovic which was labour market-related could do so.

46.

In all the circumstances I need not decide whether ESA paid to the Work Related Activity Group viewed on its own is a labour market-related benefit for the purposes of EU law. I would not wish to do so because that matter has not been fully investigated. We are not, for instance, told how many members of the Work Related Activity Group actually find jobs which means they no longer require ESA. It may be that the link with the payment of the benefit and access to the labour market is simply too remote.

47.

Ms Mountfield relies on the conditionality of ESA (meaning work-related activity may be required), and also on the fact that work is permitted. However, on the latter point, claimants are only permitted to take certain limited types of work or work up to a particular (low) financial limit. In my judgment, neither conditionality nor the element of permitted work affects the true character and effect of ESA as identified in paragraph 42 above.

48.

The fact that the Secretary of State has not attached conditions which would enable him to investigate whether a claimant is entitled to benefit is consistent with this assessment, though the terms of the benefit are within the Secretary of State’s control and could be changed if necessary. It follows that this point is not conclusive.

49.

In conclusion, ESA is not in my judgment properly described as intended to facilitate access to the labour market for the purposes of EU law with the result that a job

seeker from another member state cannot apply for it. That conclusion could only be displaced if any part of ESA which is properly described as labour market-related and can be treated as a separate stand-alone benefit, and that is the question to which I now turn. (3) The predominant function test is not to be applied on the basis that ESA is divided into separate components 50.

It is common ground that in appropriate circumstances a benefit could be separated into component parts. Ms Mountfield cites Article 1 of Regulation 1408/71 and Case C299/05 Commission of the European Communities v European Parliament [2007] ECR 1-8595 at [69] (where the CJEU held that the mobility element of the UK’s disability living allowance could be severed).

51.

Ms Mountfield submits on this appeal that the benefits paid to the Work Related Activity Group can be separated out.

52.

Ms Smyth submits that ESA is not the sort of benefit that can be separated into component elements because it is part of the function of the benefit that claimants should be able to move from one group to another. She contrasts disability living allowance, where the benefit has distinct components, i.e. mobility and care. They might be separable but the present benefit would not be so.

Conclusion on Issue (3) 53.

I agree with Ms Smyth’s submission. If the two-part benefit in Alimanovic was treated as a single benefit, it is difficult to see how EU law could have the result of severing ESA into an ESA Mark 1 for the WCA group and the Support group and an ESA Mark 2 for the Work Related Activity Group. That would be inconsistent with the aim of the benefit which is in part to make the various groups “porous” (my word) so that over time individuals in the Support Group can move to the Work Related Activity Group and vice-versa dependent on their capability at different points in time.

54.

Again, I need not decide whether, if the benefit paid to the Work Related Activity Group were a separate benefit, it would be a labour market-related benefit.

(4) Some final points: matters we do not need to decide 55.

First, Ms Mountfield took us to further authorities on the question of the relevant “link” (see above, paragraph 14). I have not gone into those authorities as, in my judgment, we are not concerned with that point.

56.

Second, this judgment is concerned with benefits for EU citizens of other member states who are job seekers for EU law purposes. The Tribunals determined that Mrs Alhashem is not a worker for EU law purposes and we are proceeding for the purposes of this appeal on the assumption only that she is a job seeker as the Secretary of State does not accept that she was a job seeker at the relevant time and that matter has not been decided.

OVERALL CONCLUSION 57.

Ms Smyth submits that, although Alimanovic had not been decided at the time, the decisions of both Tribunals were correct and are consistent with it. For the reasons given above, I accept that submission.

58.

For the reasons set out above, I would admit the witness statement of Mr Walsh and Mr Spencer and dismiss this appeal.

Lord Justice David Richards 59.

I agree.

Mr Justice Mitting 60.

I also agree.

Neutral Citation Number: [2016] EWCA Civ 398 Case No: C2/2015/4330 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) JR/8565/2015 Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/04/2016 Before: THE MASTER OF THE ROLLS LADY JUSTICE MACUR and LORD JUSTICE LINDBLOM ——————–Between: LONDON BOROUGH OF CROYDON - and Y

Appellant Respondent

—————————————-Jon Holbrook (instructed by London Borough of Croydon) for the Appellant Adrian Berry and Maria Moodie (instructed by Wilsons Solicitors) for the Respondent Hearing date: 19/04/2016


Judgment

Judgment Approved by the court for handing down.

Y v LB of Croydon

Master of the Rolls: 1.

Y is of Nigerian nationality. He claims that he was born on 24 April 1999, was a victim of physical and sexual abuse in Nigeria and that he was “trafficked” to this country.

2.

On 26 November 2014, Y was detained under the fast-track detention scheme as an adult. On 30 December 2014, his asylum claim was refused by the Secretary of State for the Home Department (“SSHD”). On 16 February 2015, he issued judicial review proceedings against the SSHD challenging the dismissal of his asylum claim and the decision to detain him. He was released from detention on 18 February.

3.

On 12 March 2015, he was assessed by the Social Services of the London Borough of Croydon (“Croydon”) as being over 18 years of age. The assessment of the social workers was based exclusively on Y’s physical appearance. On 18 March, he issued judicial review proceedings against Croydon challenging the assessment. Permission to apply for judicial review was granted by Walker J on 19 May. On 19 July, Blake J quashed the refusal of asylum and stayed Y’s claim for damages for wrongful detention pending the resolution of his age assessment challenge.

4.

As Collins J said in A v London Borough of Croydon [2009] EWHC 939 (Admin), there are many advantages for individuals who arrive in the UK in persuading the authorities that they are under the age of 18. He identified some of them at para 1 of his judgment.

5.

On 1 September 2015, UT Judge Allen gave directions in the age assessment challenge proceedings. These included (i) that the matter be listed for a 4 day factfinding hearing in order to determine Y’s date of birth; and (ii) that Y be granted permission to rely on reports by Dr Juliet Cohen, a forensic physician, Dr Susannah Fairweather, a child and adolescent psychiatrist and Ms Christine Beddoe, specialist adviser on human trafficking and child exploitation.

6.

The trial was fixed to start on 8 February 2016. On 20 November 2015, Croydon applied to the Upper Tribunal Asylum and Immigration Chamber for an order that the challenge to the age assessment should be struck out (or stayed) unless Y consented to and co-operated fully with (i) a dental examination (including a dental X-ray) by Professor Roberts, (ii) a psychiatric examination and (iii) an age assessment by two Croydon social workers. In support of this application, Croydon relied inter alia on the decision of this court in Starr v National Coal Board [1977] 1 WLR 63 to which I shall refer in some detail later in this judgment.

7.

The application was refused by UT Judge McGeachy on 8 December. He gave a short ex tempore judgment which included the following: “My decision is this. Although I have some considerable sympathy with the application made and I think it is most unfortunate that the applicant’s representatives have come to the conclusion that they will not cooperate I consider that the order sought is too draconian for me to either stay the proceedings or to dismiss the proceedings at this stage.

Judgment Approved by the court for handing down.

Y v LB of Croydon

2. I consider that the fact that the applicant’s representatives have decided that he should not cooperate with a dental examination, which I consider might well have been useful, let alone the further age assessment to be carried out by Croydon is a matter on which it may well be that you would wish to address me at the hearing. I presume that is what you would want to do but I am not prepared to bring the proceedings to a halt now.” 8.

Further light is shed on the judge’s thinking by his decision of 16 December in which he explained why he refused permission to appeal to this court. He said: “(2) The grounds of appeal assert that I had failed to give reasons for not granting the application given the terms of the judgment in Starr v NCB [1977] 1 WLR 63. In my oral judgment I gave reasons for my decision. While I did not specifically refer to the judgment in Starr the reality is that that case can be distinguished from the present. It is of note that in Starr it had been conceded that it was necessary for the defendants, in preparing their defence to have the opinion of a consultant neurologist who had had the opportunity of examining the plaintiff. That is different from a case such as the present in which there is a challenge to a decision which has already been made. Moreover, while the case in Starr was a private law matter this is an action in public law where there is a public interest in the efficient disposal of the application, particularly as it relates to the age of the applicant who claims to be a child. (3) I was entitled to take into account the efficient disposal of that application and that is why I stated that staying the proceedings at this stage was a decision which was too draconian: staying the proceedings would not resolve the issue before me. Given that the matter was to proceed to trial at the beginning of February 2016 it was appropriate that satellite litigation should be discouraged. (4) I consider that my decision was an appropriate use of my case management powers in that it is a clear aim of those powers to ensure the efficient disposal of an application.”

The grounds of appeal 9.

Mr Holbrook submits that the judge erred in holding that the Starr principles did not apply in respect of Y’s refusal to consent to (i) an age assessment by two social workers employed by Croydon, (ii) a dental age assessment by Professor Roberts and (iii) a psychiatric assessment by Dr Tony Davies. He should have held that the Starr principles did apply and that, on a proper application of them, he should have acceded to Croydon’s application to stay or strike out Y’s claim unless he consented to each of the three assessments sought.

Judgment Approved by the court for handing down.

Y v LB of Croydon

The Starr principles 10.

The case of Starr concerned a claim in negligence for damages for personal injury, namely ulnar nerve compression. It was conceded by the plaintiff that it was necessary for the defendant, in preparing its defence, to be advised by a consultant neurologist who had had the opportunity of examining him. The defendant had nominated Dr X for that purpose. The plaintiff objected to examination by Dr X without stating his reasons. But he said that he was willing to be examined by any other consultant neurologist of similar qualification and experience to Dr X. The defendant applied for a stay of all further proceedings until the plaintiff submitted to an examination by Dr X. This court upheld the stay that had been granted by the judge.

11.

At p 70H, Scarman LJ said that in the exercise of its discretion in this class of case, the court has to recognise that in the balance there are “two fundamental rights, which are cherished by the common law and to which attention has to be directed by the court”. The first is the plaintiff’s right to personal liberty. The second is an equally fundamental right, namely the defendant’s right to defend itself as it and its advisers think fit, including the freedom to choose the witnesses that it will call. It is particularly important that a defendant should be able to choose its own expert witnesses, if the case is one in which expert testimony is significant. He went on to say that, if a defendant in a personal injuries case made a reasonable request for the plaintiff to be medically examined by a doctor chosen by the defendant, the plaintiff should accede to the request unless he had reasonable grounds for objecting to the particular doctor chosen by the defendant. Applying these principles to the facts of the case, Scarman LJ said at p 72H: “I have, therefore, come to the conclusion that the request for medical examination of the plaintiff by this particular consultant neurologist was a reasonable one; that, notwithstanding the matters that have been developed in argument, the plaintiff was unreasonable in refusing to submit himself to examination and that there is, in the matters that have been adduced to this court, no indication that justice to the plaintiff is liable to be imperilled if this doctor examines him, reports and ultimately gives evidence.”

12.

At p 75H, Geoffrey Lane LJ said: “…the defendants are not lightly to be deprived of the right to have the medical examination carried out by the doctor who, they are advised, would be the best doctor in the circumstances to carry out that examination.”

13.

Cairns LJ said much the same at p 77C.

Discussion 14.

It is unclear whether the judge addressed the Starr principles or not. It would have been surprising if he had not considered them, because they had been the subject of full argument before him. Paras 1 and 2 of the judgment might suggest that he

Judgment Approved by the court for handing down.

Y v LB of Croydon

accepted that they did apply, but that he was not willing in the exercise of his discretion to strike out the claim or order a stay because such a remedy was too “draconian” or in modern parlance “disproportionate”. On the other hand, in his reasons for refusing permission to appeal, he sought to distinguish Starr on the grounds that (i) it had been conceded in Starr that it was necessary for the defendant to have the opinion of a consultant neurologist who had had the opportunity of examining the plaintiff; and (ii) Starr was a private law claim, whereas the present claim was a public law claim. 15.

On balance, I incline to the view that the judge did address the Starr principles, but held that they did not apply for the three reasons that he identified when refusing permission to appeal. First, in Starr the plaintiff had conceded that it was necessary for the defence to have the opportunity for their expert to examine the plaintiff. Secondly, Starr was a private law claim, whereas the present case concerned a public law claim. Thirdly, refusal of Croydon’s application was an appropriate use of his case management powers to ensure the efficient disposal of the application.

16.

I would reject these reasons and substantially accept the submissions advanced by Mr Holbrook. As regards the first reason, the fact that the plaintiff in Starr conceded that it was necessary for the defendant to be advised by a consultant neurologist who had had the opportunity of examining the plaintiff was not essential to the reasoning of the court. The concession meant that the court could proceed on the basis that the medical examination was necessary for the proper conduct of the defence. If that had not been conceded, the court would have had to decide for itself whether the examination was necessary. The concession is a basis for distinguishing Starr from the present case on the facts. It cannot, however, be a reason for holding that the Starr principles only apply where there is such a concession. In the absence of such a concession in the present case, the judge had to decide whether all or any of the three examinations sought were reasonably necessary for the proper conduct of Croydon’s defence. It would seem that the judge was probably satisfied that the dental examination and the examination by the two social workers were reasonably necessary because he said in his judgment that he had “considerable sympathy with the application”; he thought that it was “most unfortunate that [Y’s] representatives have come to the conclusion that they will not cooperate”; and he considered that a dental examination “might well have been useful, let alone the further age assessment to be carried out by Croydon”.

17.

As regards the second reason, there is no basis in principle for confining the Starr principles to private law litigation. I accept that there are important differences between private and public law litigation. These differences are, for example, recognised by the fact that they are subject to different procedural regimes. In most judicial review litigation, the court does not hear oral evidence or make findings on disputed questions of fact. That is why there is little scope for the application of the Starr principles in public law cases. But in judicial review claims where the court does hear oral evidence and is required to make findings of fact, there is no reason in principle why Starr should not be applied in an appropriate case. The fundamental common law right of a defendant to defend itself in litigation to which Scarman LJ referred applies in any litigation. In a case where one party wishes to have an examination of the other party, the other fundamental common law principle identified by Scarman LJ comes into play. That is so whether the case involves a

Judgment Approved by the court for handing down.

Y v LB of Croydon

private law or a public law claim. Although the age assessment issue in the present case arises in judicial review proceedings, it is common ground that the issue is one of fact for the court to determine on the evidence adduced before it: see R (A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2537. It follows that there is no reason to hold that the Starr principles do not apply merely because the issue arises in public law proceedings. 18.

The third reason is quite difficult to pin down. Mr Berry makes much of the point that this was a case management decision involving an exercise of discretion in respect of which this court should allow the judge a generous ambit: see, for example, Royal and Sun Alliance v T & N Ltd [2002] EWCA Civ 1964 at para 38 per Chadwick LJ and Walbrook Trust (Jersey) Ltd v Fattal [2008] EWCA Civ 427 at para 33 per Lawrence Collins LJ.

19.

In his skeleton argument, Mr Berry has subjected Croydon’s conduct of this litigation to critical scrutiny. He submits that, in determining whether Croydon’s request for Y’s consent and his refusal to give it were reasonable, it is necessary to have regard to its conduct of the litigation. He says that Croydon was in breach of the case management order of 17 September 2015 and was late in filing its evidence. He repeats the submissions made by Ms Moodie on behalf of Y for the hearing on 8 December 2015, which included that “[Croydon’s] conduct is placing [the 8-11 February 2016] listing in jeopardy or alternatively [Croydon] is suggesting an unrealistic revised timetable that places [Y] at a considerable disadvantage in considering [Croydon’s] evidence and preparing his evidence in reply in the limited time left before trial”.

20.

It may be that this is what the judge had in mind when, in refusing permission to appeal, he referred to the “efficient disposal” of Croydon’s application. But he made no reference to this factor in his judgment. The only reason he gave for refusing the application in the judgment was that it was “too draconian”. There is no hint in this of the idea that he was exercising his discretion against Croydon because of its failure to adhere to the procedural timetable, still less that, if he made the order sought by Croydon, the hearing date would be in jeopardy. If the judge had thought that the hearing date would be in jeopardy, it is unlikely that he would have said without qualification, as he did at para 2 of his judgment, that a dental examination “might well have been useful”. He would surely have gone on to say that, if he acceded to the application, the hearing date would be put at risk.

21.

I accept that, if the judge had decided that it would have been necessary to move the hearing date if he made the order sought by Croydon, that could well have been a good reason for not exercising his discretion to make the order even if the grounds for making it were otherwise made out. The judge had to seek to give effect to the overriding objective of dealing with cases “justly” when exercising any power given to him by the Civil Procedure Rules: see CPR 1.2(a). In any event, I am not satisfied that there were grounds for refusing Croydon’s application based on its conduct of the litigation. Although Croydon had failed to comply with some of its procedural obligations, these could not have justified a decision to refuse its application unless at least they caused Y to suffer significant prejudice. If acceding to the application had jeopardised the hearing date, this would have caused prejudice which, as I have said, might have justified a refusal of the application. But there is no finding by the judge that the trial could not have started on 8 February 2016 if the order had been made

Judgment Approved by the court for handing down.

Y v LB of Croydon

and there is no material on which this court could make such a finding. The evidence before us shows that Professor Roberts could have seen Y before Christmas 2015. There is no doubt that Croydon’s two social workers could have done so as well. The only doubt is in relation to the consultant psychiatrist, Dr Davies. There is no evidence before us as to when he could have seen Y. In my view, it would be quite wrong to uphold the judgment solely because it is possible that the order sought by Croydon would have necessitated an adjournment of the hearing date on account of the time it would have taken for Dr Davies to have examined Y and produced a report. This is far too uncertain a basis on which to reach such a conclusion. 22.

Having rejected the three reasons relied on by the judge, I am satisfied that the judge should have made the order sought by Croydon. It was reasonably necessary to enable it to defend the challenge to its age assessment. Y’s refusal to give his consent was unreasonable.

23.

By way of a postscript, I wish to add two points. First, although Y’s expert witnesses have diagnosed him as suffering from complex PTSD, it is not suggested on his behalf that any of the three requested assessments would cause him psychological harm. Secondly, it is said that the method of assessing age using mean data taken from dental x-rays is controversial and unreliable. But it is impossible for the court to reach a conclusion on whether this is correct or not. In my view, it cannot be a reason for refusing the order. No doubt, the reliability of the assessment based on dental xrays will be investigated at the hearing.

Conclusion 24.

For these reasons, I would allow this appeal.

Lady Justice Macur: 25.

I agree.

Lord Justice Lindblom: 26.

I also agree.

Neutral Citation Number: [2016] EWCA Civ 400 Case No: C2/2015/1027 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) Upper Tribunal Judge O’Connor Strand, London, WC2A 2LL Date: 22/04/2016 Before : LORD JUSTICE MOORE-BICK LORD JUSTICE SALES and SIR STANLEY BURNTON ——————–Between : The Queen on the application of SB (Jamaica) and ABD (a minor) - and Secretary of State for the Home Department

Appellant Respondent

—————————————-Rebecca Chapman (instructed by Duncan Lewis) for the Appellant Ben Lask (instructed by the Government Legal Department) for the Respondent Hearing date: 14 April 2015


Judgment

SIR STANLEY BURNTON: Introduction 1.

This is an appeal against the decision of Upper Tribunal Judge O’Connor dismissing the Appellant’s application for judicial review of decisions of the Home Secretary dated 8 October 2013 and 8 October 2014, in which she granted the Appellant 30 months’ leave to remain under paragraph 276ADE of the Immigration Rules subject to a condition of no recourse to public funds (NRPF condition). There are formally two applicants for judicial review, SB and her daughter ABD, who was born in this country on 30 May 2011. Since ABD’s application depends entirely on that of her mother, for convenience I shall refer to SB as if she were the only Appellant.

2.

In summary, the Appellant contends that the Secretary of State: i)

wrongly interpreted the transitional provisions of the current Discretionary Leave (“DL”) policy:

ii)

arrived at an interpretation or application of the DL policy that failed to take account of the provisions of section 55 of the Borders, Citizenship and Immigration Act 2009; and

iii)

irrationally imposed a condition of no recourse to public funds.

3.

The Appellant contends that she should have been granted DL with no restriction on recourse to public funds.

4.

The Respondent disputes all these contentions.

5.

The Upper Tribunal Judge rejected the Appellant’s submissions and upheld those of the Secretary of State.

The essential facts 6.

The Appellant was born in 1994. She arrived in the United Kingdom in August 2001 with 6 months’ leave as a visitor. In 2007 her father made an application for leave to remain, naming the Appellant as his dependant. There was considerable delay in the Home Secretary’s determination of this application, and it was not until 14 June 2010 that she and her father were granted 3 years’ DL.

7.

On 30 May 2011, the Appellant gave birth to her daughter ABD. On 11 June 2013, an application for further leave to remain was made by solicitors on the Appellant’s behalf.

8.

The Secretary of State made two decisions, dated respectively 8 October 2013 (“the October 2013 Decision”) and 8 October 2014 (“the October 2014 Decision”), in which she granted the Appellant 30 months’ leave to remain under paragraph 276ADE of the Immigration Rules (“IR”), subject to a NRPF condition. It is those decisions that are the subject of this appeal.

Discussion 9.

The thrust of the Appellant’s case is that the Secretary of State wrongly interpreted and applied the transitional provisions of her DL policy. It is therefore necessary to set out its relevant provisions and place them in context.

10.

The Immigration Rules are “statements of the rules laid down by [the Secretary of State] as to the practice to be followed in the administration of [the Immigration Act 1971] for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances”: see section 3(2) of the 1971 Act. Absent any good reason not to do so, the Secretary of State must apply those Rules when making decisions whether or not to grant leave to remain. If a person qualifies for leave to remain under the Rules, he or she should in general be granted the leave required by the Rules subject to the conditions if any specified in the Rules. A departure from the Rules would require justification.

11.

The Secretary of State nonetheless retains a residual discretion to allow leave to remain outside the Rules. DL, really by definition, was generally leave granted by the Secretary of State otherwise than by application of the Immigration Rules.

12.

Until July 2012, the Immigration Rules did not make express provision for applications for leave to remain on Article 8 grounds. They were therefore dealt with outside the Immigration Rules, and if successful resulted in the grant of DL.

13.

In July 2012 express provision was inserted into the Immigration Rules for applications made on Article 8 grounds: see in particular paragraph 276ADE and Appendix FM. It followed that the scope for the grant of DL on Article 8 grounds was much reduced: see e.g. Singh v Secretary of State for the Home Department [2015] EWCA Civ 74, at [3]. As stated there, Article 8 claims “outside the Rules” are still possible, though the scope for their operation is reduced. Claims “outside the Rules” which are allowed following the introduction of the new Rules in July 2012 are still allowed in the exercise of the Secretary of State’s residual discretion as was DL previously, but we were told that such grants are now not designated as DL but as grants of leave “outside the Rules”. This background is relevant when one comes to construe the relevant policy on DL which is in issue on this appeal. Where DL is granted or extended, the usual position is that no NRPF condition is attached to it. But where leave “outside the Rules” is granted or leave is granted under the new Rules, the usual position is that a NRPF condition is attached, though that may itself be challenged on public law and human rights grounds.

14.

The reduced scope of leave “outside the Rules”, particularly in Article 8 cases, was reflected in the amended DL policy, introduced on 24 June 2013 (“the 2013 DL policy”). The amended policy explained “the limited circumstances in which it may be appropriate to grant DL”, i.e. the particular form of leave granted in exercise of the Secretary of State’s residual discretion which had been prevalent before the introduction of the new Rules in July 2012. In the Introduction, under the heading “Key points”, it stated:

“DL is to be granted only if a case falls within the limited categories in the section below ‘Criteria for granting Discretionary Leave’. It is intended to be used sparingly. DL is granted outside the Immigration Rules. It must not be granted where a person qualifies for asylum, HP, or where there is another category within the Immigration Rules under which they qualify. From 9 July 2012 DL must not be granted for Article 8 family or private life reasons.” 15.

The policy included transitional provisions, set out in section 10. It stated: “All decisions made on Discretionary Leave on or after 9 July 2012 will be subject to the criteria set out in this guidance. … Individuals granted DL on a date prior to and including 8 July 2012 may apply to extend that leave when their period of DL expires. Decision makers must apply the following guidance. Applicants granted Discretionary Leave before 9 July 2012 Those who, before 9 July 2012, have been granted leave under the DL policy in force at the time will normally continue to be dealt with under that policy through to settlement if they qualify for it (normally after accruing 6 years continuous DL). Further leave applications from those granted up to 3 years DL before 9 July 2012 are subject to an active review. Consideration of all further leave applications will be subject to a criminality check and the application of the criminality thresholds, including in respect of cases awaiting a decision on a further period of DL on that date. See Criminality and Exclusion section above. Decision makers must consider whether the circumstances prevailing at the time of the original grant of leave continue at the date of the decision. If the circumstances remain the same and the criminality thresholds do not apply, a further period of 3 years DL should normally be granted. Decision makers must consider whether there are any circumstances that may warrant departure from the standard period of leave. See section 4.4 above. If there have been significant changes or the applicant fails to meet the criminality thresholds (see criminality and exclusion section above), the application for further leave should be refused.

16.

Since the Appellant had been granted DL before 9 July 2012, the transitional provisions of the Policy fell to be applied to her. I understood the Respondent to accept that someone who had then been granted DL, and applied for further leave to remain after 24 June 2013, would be entitled to be dealt with under the policy in force before 9 July 2012 provided there had been no “significant changes” or the applicant failed to meet the criminality thresholds (which are irrelevant to the Appellant). If there have been significant changes, the application falls to be dealt with under the current Immigration Rules and the current Policy. I consider that this is a correct understanding of the Policy. The crucial question, therefore, is whether, so far as the Appellant was concerned, there had been significant changes within the meaning of the Policy when the Secretary of State made her decisions.

17.

The Appellant contends that a change is only “significant” for the purposes of the Policy if it results in the applicant having no right to remain in this country, whether by reason of her Article 8 rights or otherwise.

18.

I have no hesitation in rejecting this contention. Quite simply, it has no support in the wording of the Policy, and is indeed inconsistent with it. A change is “significant” if it bears upon matters relevant to the decision of the Secretary of State when she granted DL before 9 July 2012. By way of example, the fact that a child is now older than she was when she was originally granted DL, and remains a dependant of and living with her parent or parents, could not generally be significant: it would be irrelevant to the decision of the Secretary of State to grant or to refuse leave. In this case, to the contrary, there were factual changes that were manifestly significant. At the time of the original decision, the Appellant had been a child, living with and dependent on her father. Her father’s and her applications were determined outside the Rules. When in 2013 she applied for an extension of leave she was no longer a child, she had her own child, she was no longer living with her father but was living independently, and she was working. Moreover, whereas her original application fell to be considered outside the Rules, the 2013 Rules included express provision applicable to her 2013 application. Indeed, her solicitors’ letter dated 11 June 2013 applied for leave under paragraph 276ADE of the Rules and stated: “On the basis that the requirements in paragraph 276ADE have been patently met by the applicant, we submit that the applicant is, at the very least, entitled to leave to remain on the grounds of private life in the UK for a period of 30 months.” The Appellant’s solicitors’ letter also referred to the previous grant to her of DL and in addition sought leave in 2013 outside the Rules on the grounds of Article 8, but the first application in the letter was for leave under the Immigration Rules. The Secretary of State accepted that the Appellant was entitled to limited leave to remain under paragraph 276ADE, and I cannot see how she can be criticised for doing so.

19.

The Secretary of State, in her letter of 8 October 2013, clearly described the significant change there had been in the circumstances of the Appellant since the grant of DL: “…you were granted discretionary leave to remain in the United Kingdom, under Article 8 European Convention on Human Rights, as a dependant on your father’s application for

leave to remain. From the evidence you have provided, it is clear that you are leading an independent life and are no longer dependent on your father. Therefore, after carefully reviewing your application for active review of discretionary leave, the Secretary of State is not satisfied that the grounds under which you were previously granted discretionary leave still persist and your application for further discretionary leave is refused.” 20.

The Appellant also submitted that the Secretary of State had acted unfairly in granting her limited leave to remain, whereas her father had been granted extended DL when he made his application. The short answer to this submission is that the matters relevant to the father’s application for further leave differed from those relevant to the Appellant’s. In his case, there was no significant change in his circumstances and the Secretary of State found that he did not qualify for leave to remain under the Immigration Rules. He could therefore only be granted DL. The Appellant did qualify for leave under the Immigration Rules, as her solicitors had claimed.

21.

The Appellant’s second contention is that the Secretary of State’s interpretation of her Policy was in breach of her section 55 statutory duty. The section 55 duty is too well known to require its text or effect to be set out in my judgment. Again, I have no hesitation in rejecting this contention. There was no suggestion in the Appellant’s solicitors’ letter of 11 June 2013 that a grant of limited leave to remain, rather than DL, would in any way be prejudicial to the interests of the Appellant’s daughter, and it is therefore unsurprising that the section 55 duty was not referred to in the Secretary of State’s original decision. However, section 55 was addressed by the Secretary of State in her decision letter of 8 October 2014. The letter stated: “In support of your application [for Judicial Review] you have raised the fact that you now have a child who was born to you whilst you have been resident in the United Kingdom This has been carefully considered. However you have been granted leave to remain in the United Kingdom. Therefore your situation has not changed. You are allowed to remain in the United Kingdom, your child is also allowed to remain and they will have the full benefits of being resident in the United Kingdom. Your child will be able to access education, health and social services and all of the opportunities open to a child resident in the United Kingdom. Your child will continue to live with you and continue to have the benefits of her close relationship with other family members. You will not be forbidden to work therefore you will be able to continue to support your child as can their grandparent and other family members. You have stated that because your father has and is helping to support both you and your child that their best interests have not been served by a grant of 30 months and

a condition of code 1. It has been considered whether the decision to grant you leave to remain with a code 1 condition of no recourse to public funds should be changed in light of the help you receive from your family should change the decision to grant you code 1. However as previously stated you are not destitute, you have employment and also a separate place of abode. The fact that your father makes a financial contribution to your living expenses is not a sufficiently engaging argument for you to be considered destitute and therefore qualify for a change of condition code. These circumstances show that you and your family are capable of supporting yourself and your child and as such, neither you nor your child are in a situation that would be deemed to put your child in danger or risk, so as to engage Section 55 of the Borders, Citizenship and Immigration Act 2009.” 22.

In my judgment there was nothing before the Secretary of State to support the contention that the grant of limited leave to remain, rather than DL, infringed the section 55 duty. The Secretary of State’s letter of 8 October 2014 adequately explained the Secretary of State’s decision.

23.

The third contention of the Appellant is that the imposition of the NRPF condition was irrational. I reject this contention also. My first reason is that no material was put before the Secretary of State to justify her departing from the normal rule on the grant of limited leave, which is to impose the condition. The Appellant’s solicitors’ application letter of 11 June 2013 stated: “…While the applicant is currently in receipt of various benefits, she has recently secured employment; she is being supported by her family members; she is working towards furthering her education; and she aims to secure stable employment to enable her to support herself and her daughter in the future. It is hence submitted that, should she be granted further leave to remain in the UK, she would not be seeking recourse to public funds for much longer and so the interference with her rights that would result from her removal would not be in the interests of the economic well-being of the country.” No restriction was placed on the Appellant’s right to work.

24.

The Appellant’s solicitors challenged the application of the NRPF condition in their pre-action protocol letter dated 18 December 2013. The Secretary of State addressed the condition in her supplemental decision letter dated 8 October 2014. The evidence available to the Secretary of State at the time of the October 2014 Decision consisted of the documents listed in the Appellant’s solicitors’ letter of 11 June 2013 and the pre-action letter of 18 December 2013. That evidence contained little information as to the Appellant’s financial circumstances, and what it did contain was incomplete and out of date. Whilst there was a small number of bank statements, the most recent was dated May 2013 (some 17 months out of date). Other financial evidence consisted of a single payslip dated 31 May 2013; a prepayment electricity statement for the

period 9 April 2012 to 1 May 2013; a council tax bill dated 8 March 2013; and a handful of letters concerning welfare support, the most recent of which was dated 22 April 2013. No witness statement was provided by the Appellant detailing her income, savings and assets versus rent, bills and other major outgoings. This was not adequate evidence to justify the removal of the condition. To put it more appropriately, the Secretary of State was entitled rationally to consider that this evidence was not sufficient. 25.

The Secretary of State addressed the NRPF condition in her 2014 Decision: “You have now requested permission to apply for a Judicial Review of this decision because you were granted leave to remain for 30 months on code 1 conditions. Your circumstances were fully considered on your original application and within this supplementary letter. It has been explained to you that you are not entitled to a grant of code 1A conditions because you are not regarded as being destitute for the purposes of this application. As previously explained above you are now in employment and whilst you may rely on your father for extra funds this fact alone does not make you destitute for the purposes of deciding your immigration status and what code of conditions you would be entitled to. This policy is clearly explained on the document “Request for a Change of Conditions of leave granted on the basis of family or private life” which can be accessed on the internet at Gov.UK. This document also contains a form that would need to be completed for a request to change your conditions. It is open to you to apply for this remedy if you so wish. However on the evidence presented with your initial application it is considered that the decision to grant you leave to remain on code 1 condition’s was correct. … In support of your application you have raised the fact that you now have a child who was born to you whilst you have been resident in the United Kingdom This has been carefully considered. However you have been granted leave to remain in the United Kingdom. Therefore your situation has not changed. You are allowed to remain in the United Kingdom, your child is also allowed to remain and they will have the full benefits of being resident in the United Kingdom. Your child will be able to access education, health and social services and all of the opportunities open to a child resident in the United Kingdom. Your child will continue to live with you and continue to have the benefits of her close relationship with other family members.

You will not be forbidden to work therefore you will be able to continue to support your child as can their grandparent and other family members. You have stated that because your father has and is helping to support both you and your child that their best interests have not been served by a grant of 30 months and a condition of code 1. It has been considered whether the decision to grant you leave to remain with a code 1 condition of no recourse to public funds should be changed in light of the help you receive from your family should change the decision to grant you code 1. However as previously stated you are not destitute, you have employment and also a separate place of abode. The fact that your father makes a financial contribution to your living expenses is not a sufficiently engaging argument for you to be considered destitute and therefore qualify for a change of condition code. These circumstances show that you and your family are capable of supporting yourself and your child and as such, neither you nor your child are in a situation that would be deemed to put your child in danger or risk, so as to engage Section 55 of the Borders, Citizenship and Immigration Act 2009.” 26.

I see no irrationality or unfairness in this decision.

27.

Moreover, on 17 June 2015, four months after the Upper Tribunal judgment under appeal, the Appellant made a fresh request for removal of the NRPF condition, based on new documentary evidence. The Secretary of State responded in a reasoned decision dated 13 July 2015, refusing to remove the condition on the basis that the Appellant had not provided sufficient evidence to demonstrate that she met the criteria for eligibility. That decision is not the subject of judicial review proceedings, and is not before us. It follows that the Appellant’s challenge before us to the application of the Condition would, if successful, be limited to the period between 8 October 2013 and 13 July 2015. As it is, however, in my judgment her challenge to the application of the Condition in 2013 fails.

Conclusion 28.

In my judgment, the Upper Tribunal Judge came to the right decision. For the reasons I have given, I would dismiss this appeal.

LORD JUSTICE SALES: 29.

I agree.

LORD JUSTICE MOORE-BICK: 30.

I also agree.

Case No: CO/3944/2014 Neutral Citation Number: [2016] EWHC 436 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION ADMINISTRATIVE COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 8 March 2016 Before: THE HONOURABLE MRS JUSTICE LANG DBE ——————–Between: THE QUEEN on the application of TOUFIK LOUNES

Claimant

- and SECRETARY OF STATE FOR THE HOME DEPARTMENT

Defendant

—————————————-Parminder Saini (instructed by MTG) for the Claimant Julia Smyth (instructed by the Government Legal Department) for the Defendant Hearing date: 9 February 2016


Judgment

Mrs Justice Lang: 1.

The Claimant, who is a national of Algeria, applied for judicial review of the Defendant’s decision, dated 22 May 2014, to refuse his application for a residence card under the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations 2006”) as the family member of his wife, Mrs Ormazabal, who is a dual Spanish and British national.

2.

The issues in the claim are: i)

Whether, as the Claimant contends, Mrs Ormazabal continues to be a beneficiary under Article 3(1) of Directive 2004/38/EC (“the Directive”), having exercised her right to free movement as a Spanish national and moved from Spain to the United Kingdom (“U.K.”) and acquired the right of permanent residence in the U.K. under Article 16(1) of the Directive. Or, as the Defendant contends, whether she ceased to be a beneficiary under Article 3(1) of the Directive when she acquired British citizenship by naturalisation in August 2009.

ii)

Whether the amended definition of an “EEA national” in regulation 2 of the EEA Regulations 2006, which now excludes British citizens, is contrary to the Directive and Article 21 of the Treaty on the Functioning of the European Union (“TFEU”).

3.

It was common ground between the parties that, if Mrs Omazabal was no longer a beneficiary under Article 3(1) of the Directive, the Claimant would not be entitled to a residence card under regulation 16 of the EEA Regulations 2006, as a “family member” of a “qualified person”.

4.

Other claims raising similar issues have been stayed awaiting the outcome of this lead case.

Facts 5.

The Claimant is a national of Algeria, born there on 23 February 1981. He entered the U.K. on a 6 month visitor visa on 20 January 2010, and overstayed illegally. In 2013, he formed a relationship with Mrs Perla Nerea Garcia Ormazabal. They entered into an Islamic marriage on 1 January 2014. They subsequently married in a civil ceremony in London on 16 May 2014.

6.

On 15 April 2014, the Claimant applied to the Defendant for an EEA residence card, on the basis of his marriage to Mrs Ormazabal. Mrs Ormazabal was born on 15 September 1976 in Spain, and she is a Spanish national. She moved to the U.K. in September 1996 to study English. She then undertook a degree in Applied Computing at the University of East Anglia in Norwich, and was awarded a Bachelor of Science degree in July 2000. Subsequently she took a BTEC Professional Development course at West Herts College, obtaining her Diploma in June 2004. Since September 2004, Mrs Ormazabal has been employed full-time in London at the Turkish

Embassy. She stated, through counsel, at the hearing that she worked part-time whilst a student, however, no evidence of this was adduced. 7.

Mrs Ormazabal became a naturalised British citizen on 12 August 2009 and holds a British passport.

8.

The Claimant came to the attention of the immigration authorities in May 2014. On 14 May 2014, the Claimant was served with a “Notice to a person liable to removal” (form IS.151A) informing him that he was liable to removal under section 10 Immigration and Asylum Act 1999 on the grounds that he had overstayed in the U.K., in breach of immigration controls. On 14 May 2014, the Claimant was also served with notice of a decision to remove him from the U.K. (form IS.151A Part 2).

9.

On 22 May 2014, the Defendant sent her decision letter to the Claimant stating: “You have applied for a residence card as confirmation that you are the family member of Perla Nerea Garcia Ormazabal, a Spanish national who is exercising Treaty rights in the United Kingdom. Perla Nerea Garcia Ormazabal also holds British citizenship. She is therefore a dual citizen who holds British citizenship and Spanish citizenship. The definition of EEA national in Regulation 2 of the Immigration (European Economic Area) Regulations 2006 was amended on 16 July 2012 to preclude dual British citizens/EEA nationals from benefiting from the Directive and therefore also to preclude their family members from relying upon free movement rights. Transitional provisions were made in order not to unfairly prejudice the position of persons who have acted in reliance on the previous definition of EEA national, however these do not apply to your sponsor Perla Nerea Garcia Ormazabal. Therefore, your application for a residence card has been refused on the grounds that your sponsor Perla Nerea Garcia Ormazabal: 

Does not meet the definition of an EEA national defined under Regulation 2 of the Immigration (EEA) Regulations 2006 (as amended on 16 July 2012) as she is also a British citizen.

As your entitlement to rely on the provisions of the Immigration (European Economic Area) Regulations 2006 cannot be established there is no right of appeal against this decision, however redress through other legal channels may be

possible and it is recommended you seek legal advice should you choose to do so.” 10.

The letter invited the Claimant to consider an application to remain in the U.K. under the Immigration Rules and Article 8 of the European Convention on Human Rights. Although no such application has been determined, it was common ground, for the purposes of this claim, that obtaining leave to remain under U.K. domestic law would require the Claimant to fulfil criteria which are not applicable under the Directive and the EEA Regulations 2006.

The statutory framework Union citizens 11.

The right of Union citizens to move and reside within the territory of other Member States is provided for by Article 21 TFEU, which provides that every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

12.

Article 3.1 of the Directive provides: “1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members….who accompany or join them.”

13.

The scheme established by the Directive, and implemented in the U.K. by the EEA Regulations 2006, is as follows: i)

There is an initial right of residence for three months: Article 6 and regulation 13.

ii)

A Union citizen will have an extended right of residence if he fulfils the conditions set out in Article 7(1) of the Directive and regulation 14, which uses the term “qualified person” as defined in regulation 6. Accordingly, he must establish that he: (a) is a worker or self-employed person; (b) has sufficient resources not to become a burden on the social assistance system of the host Member State and has comprehensive sickness insurance cover; © is a student, has comprehensive sickness cover, and has sufficient resources; or (d) is a family member of a Union citizen who satisfies one of those conditions.

iii)

After a continuous period of five years’ legal residence, a Union citizen acquires a right of permanent residence (Article 16(1) and regulation 15). In order to “reside legally,” a Union citizen must fulfil the conditions in Article 7/regulation 14. Article 16(4) provides that “once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years”. Regulation 15(2) is in similar terms, though does not include the words “once acquired”.

iv)

A person with a right of permanent residence can be removed on serious grounds of public policy or public security (Article 28).

Family members 14.

Neither the Treaty nor the Directive confer any autonomous rights upon family members who are third country nationals. Their rights are only acquired by reason of their status as members of the Union citizen’s family.

15.

By Article 7(2) of the Directive, non-EEA national family members who are accompanying or joining a Union citizen in the host Member State enjoy an extended right of residence, provided that the Union citizen satisfies the conditions in Article 7(1)(a)(b) or © (see also Article 14(2) of the Directive and regulation 14(2) of the EEA Regulations 2006).

16.

In order to acquire a right of permanent residence pursuant to Article 16(2), a nonEEA national family member must have “legally resided” with the Union citizen for a continuous period of five years. In that respect, only periods of residence which comply with Article 7(2) can be taken into account.

17.

A person’s spouse or civil partner is treated as their family member: regulation 7(1) and Article 2(2) of the Directive.

18.

Where a non-EEA citizen is in a relationship with a Union citizen but they are not married, the non-EEA citizen will have no EU law right to reside unless inter alia: (i) he can prove that he is a “durable partner” (Article 3(2)(b) of the Directive and regulation 8(5) of the EEA Regulations 2006); and (ii) he has been issued with the relevant residence documentation (Article 3(2) of the Directive and regulation 7(3) of the EEA Regulations 2006).

Amendments to the EEA Regulations 2006 affecting dual nationals 19.

The Directive applies to “all Union citizens” (Article 3(1)). The term “Union citizen” is defined in Article 2(1) as “any person having the nationality of a Member State”.

20.

Under the EEA Regulations 2006, the term “EEA national” is used in place of “Union citizen”. The Immigration (European Economic Area) (Amendment) Regulations 2012 (2012/1547)1 and the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2012 (2012/2560)2 amended the definition of the term “EEA national” in regulation 2(1) of the EEA Regulations 2006.

21.

Prior to the 2012 amendments, the definition read: ““EEA national” means a national of an EEA State”

22.

1 2

Following SI 2012/1547, the definition reads:

In force 16 October 2012 In force 8 November 2012

““EEA national” means a national of an EEA State who is not also a United Kingdom national” 23.

The definition was re-amended by SI 2012/2560 to read: ““EEA national” means a national of an EEA State who is not also a British citizen”

24.

Prior to the amendment, a U.K. national who did not hold dual nationality could not benefit from the Regulations, because the definition of “EEA State” in regulation 2(1) excluded the United Kingdom. However, British citizens who were also nationals of another EEA State could successfully rely on the Regulations. Following the amendment, they can no longer do so, because British citizens are expressly excluded. Paragraph 2 of Schedule 3 to the 2012 Regulations made transitional provisions to address the position of certain family members who had acted in reliance on the previous definition, but the Claimant does not fall within these provisions.

25.

Statutory instruments are accompanied by an Explanatory Note which is not part of the regulations, but “is of use in identifying the mischief which the regulations were attempting to remedy” (Pickstone v Freemans plc [1989] AC 66, per Lord Oliver at [127]). Explanatory memoranda (which are prepared by the Home Office and laid before Parliament) may also be used for this purpose.

26.

The Explanatory Note to SI 2012/1547 states: “Paragraph 1 of Schedule 1 to these Regulations makes various changes to the interpretation provisions in regulation 2(1) of the 2006 Regulations. These amendments include provisions which(a) make it clear that a person will not be regarded as the spouse, civil partner of another person for the purpose of the 2006 Regulations where a spouse, civil partner or durable partner of either person is already residing in the United Kingdom; and (b) make it clear that a person will not be regarded as an EEA national where they are also a United Kingdom national. This amendment of the definition of an EEA national reflects the ECJ’s judgment in the case of C-434/09 Shirley McCarthy v Secretary of State for the Home Department. Schedule 3 to these Regulations makes transitional provisions to address the position of persons who have acted in reliance on the previous definition.”

27.

The Explanatory Memorandum to SI 2012/1547 states, at paragraph 7.7: “Paragraph 1(d) of Schedule 1 gives effect to the ECJ judgment in McCarthy. This determined that a person who holds the nationality of the host Member State and has never exercised

their right of free movement and residence does not benefit from the terms of the Free Movement Directive. Transitional provisions have also been made by way of paragraph 2 of schedule 3 of the amending Regulations to provide continuation of rights for those who have already placed reasonable reliance on the pre-McCarthy position which enabled British citizens to fall within the definition of EEA national for the purposes of the Regulations where they held another EEA nationality.” 28.

The Explanatory Memorandum to SI 2012/2560 states at paragraph 7.10: “Paragraph 7 of the Schedule to the Regulations amends the reference in the 2006 Regulations to “UK nationals” so that they refer instead to “British citizens”. An amendment was made to the EEA Regulations in July 2012 to implement the ECJ’s judgment in the case of McCarthy (C-434/09) in order to make clear that dual nationals are not normally able to exercise free movement rights in the countries of their citizenship. In the process of drafting guidance on these changes it became clear that this amendment – and the 2006 Regulations in general – should refer to “British citizens” rather than to “UK nationals” since only the former have the right of abode in the UK.”

Application of the statutory scheme to the Claimant and Mrs Ormazabal 29.

It was common ground that Mrs Ormazabal was exercising her right to free movement as an EU citizen when she moved from Spain to the U.K. The Defendant’s case was that she could no longer rely upon those rights within the U.K. once she became a naturalised British citizen in August 2009.

30.

The Claimant relied in particular upon the fact that Mrs Ormazabal had acquired the right of permanent residence under Article 16 of the Directive (dated 29 April 2004) and regulation 15 of the EEA Regulations 2006 (which came into force on 30 April 2006) on a date after April 2006 but before she was naturalised as a British citizen in August 2009. The Claimant contended that her right of permanent residence under the Directive was not lost by the act of naturalisation. Whilst not making any formal concessions, the Defendant did not engage with the question whether or not Mrs Ormazabal had in fact acquired the right of permanent residence because her case was that, as a matter of law, it made no difference to the position once she became a British citizen.

31.

It was common ground that time spent by Mrs Ormazabal in the U.K. before the Directive and the EEA Regulations 2006 came into force, could be counted towards the five year period of lawful residence required to acquire the right of permanent residence (Lassal (C-162/09); Ziolkowski & Ors C-424/10 & 425/10).

32.

At the hearing, I asked counsel to explain how, and when, Mrs Ormazabal acquired a right of permanent residence, as it was not apparent from the evidence which had been adduced when she began to exercise her extended rights of residence, either as a “worker” or as a student who had comprehensive sickness cover, under Article 7 and

regulations 14 and 6. It appeared that the Claimant’s lawyers had not previously explored this issue with Mrs Ormazabal, and so took instructions from her in court. Counsel’s response that she worked part-time to support herself as a student, prior to commencing full-time work in September 2004, was not supported by evidence, either in the form of a witness statement or documentary evidence of payslips, tax records etc. She did not suggest that she had comprehensive sickness cover as a student. After discussions between the parties over the short adjournment, the Defendant was only willing to concede that her lawful residence (for the purpose of acquiring the right of permanent residence) began in September 2004 when she began full-time work. If this analysis was correct, she was naturalised as a British citizen, on 12 August 2009, shortly before she had completed 5 years lawful residence, and before she acquired a permanent right of residence. 33.

However, since she studied for 8 years in the U.K., from the age of 20, it seemed to me to be likely, on the balance of probabilities that she had worked during that time, and I was reluctant to shut her out from pursuing this point merely because of what appeared to me to be under-preparation by her lawyers, and bearing in mind that the Defendant had not previously challenged the Claimant’s assertion that she had acquired the right of permanent residence before naturalisation.

34.

In those circumstances, I would respectfully invite the Court to consider Mrs Ormazabal’s status on two alternative bases: i)

Either, that she was exercising her extended rights of residence under Article 7 of the Directive and regulation 14 of the EEA Regulations 2006 when she was naturalised as a British citizen on 12 August 2009, but had not yet acquired the right of permanent residence in the U.K.

ii)

Or, that she acquired the right of permanent residence in the U.K. under Article 16 of the Directive and regulation 15 of the EEA Regulations 2006, at an unknown date after implementation of the Directive in April 2006, but before she was naturalised as a British citizen on 12 August 2009.

35.

On either basis, the Claimant submitted that, after naturalisation, Mrs Ormazabal continued to exercise her right to free movement, both as an EU citizen and a Spanish national, by residing in the U.K., and that she is entitled to have her spouse reside with her, under the terms of the Directive and the EEA Regulations 2006. On the Claimant’s case, even if she did not have the right of permanent residence as at the date of naturalisation, she has since acquired it by the passage of time spent working in the U.K.

36.

The Defendant submitted that, after naturalisation as a British citizen, Mrs Ormazabal could no longer exercise any EU right to free movement within the U.K. despite her Spanish nationality and Union citizenship. In that respect, she was in the same position as other British citizens living in the U.K. who did not have dual nationality. She could, of course, exercise her EU right to free movement in other EU countries. It followed that the Claimant’s application to reside in the U.K. had to be determined according to U.K. domestic immigration law only; he could not rely upon the Directive and the EEA Regulations 2006.

The Claimant’s legal submissions 37.

The Claimant submitted that the restriction introduced by the 2012 amendment to the definition of an “EEA national” unlawfully fetters and restricts the scope of free movement rights under Article 21, TFEU and the Directive.

38.

As a Spanish national and Union citizen, Mrs Ormazabal continues to be a beneficiary of the Directive, within the meaning of Article 3(1), in respect of her residence in the U.K. The status of Union citizenship and Spanish nationality are intrinsically connected, and cannot be disregarded by the U.K. merely because she has also subsequently acquired British citizenship. The reference to moving or residing “in a Member State other than that of which they are a national” in Article 3(1) meant the Union Citizen’s home country from which she moved, e.g. Spain in this case.

39.

The explanation given for the 2012 amendment was that it gave effect to the CJEU’s judgment in McCarthy (C-434/09, [2011] All E.R. 729). However, it is much wider in scope than the decision in McCarthy. The first question referred to the CJEU in McCarthy was: “1. Is a person of dual Irish and United Kingdom nationality who has resided in the United Kingdom for her entire life a “beneficiary” within the meaning of Article 3 of Directive 2004/38 …?” (emphasis added)

40.

The CJEU only answered the first question and that answer was in the negative for the following reasons, at [57]: “57. In the light of the foregoing, the answer to the first question is as follows: – Article 3(1) of Directive 2004/38 must be interpreted as meaning that that directive is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State. – Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.”

41.

The CJEU’s decision was premised upon the fact that Mrs McCarthy was not a beneficiary of the Directive. As stated at [39], this was because:

“…in so far as the Union citizen concerned has never exercised his right of free movement and has always resided in a Member State of which he is a national, that citizen is not covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38, so that that directive is not applicable to him.” 42.

Therefore, it can be seen that the CJEU did not exclude all Union citizens from the scope of the Directive simply because they had acquired citizenship of the host country, as well as another EU nationality. Mrs McCarthy fell outside the scope of the Directive because she had “never exercised her right of free movement” as she had always resided in a Member State of which she was a national, namely, the U.K. Mrs Ormazabal’s position is clearly distinguishable because she has exercised her right of free movement, to move from her native Spain to the U.K.

43.

In fact, the CJEU considered that the fact of dual nationality was irrelevant to the question of the applicability of the Directive. It stated: “40. That finding cannot be influenced by the fact that the citizen concerned is also a national of a Member State other than that where he resides. 41. Indeed, the fact that a Union citizen is a national of more than one Member State does not mean that he has made use of his right of freedom of movement.”

44.

The Claimant acknowledged that Article 3(1) and the Directive did not directly address the position of dual nationality citizens and their family members but submitted that the Directive should be given a purposive and teleological interpretation which gives effect to the objectives in the recitals, set out below.

45.

The recitals provide inter alia: “(1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.” “(2) The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty.” “(3) Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and

strengthen the right of free movement and residence of all Union citizens.” “(5) The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality…” “(11) The fundamental and personal right of residence in another Member State is conferred directly on Union citizens by the Treaty and is not dependent upon their having fulfilled administrative procedures….” “(17) Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.” “(18) In order to be a genuine vehicle for integration into the society of the host Member State in which the Union citizen resides, the right of permanent residence, once obtained, should not be subject to any conditions.” 46.

Recital (5) recognises that the right of a Union Citizen to move and reside freely must include the right to be accompanied by his or her spouse, whatever their nationality. The effect of the 2012 amendments is to restrict this right, as Mrs Ormazabal can no longer rely on her rights under the Directive as an EU citizen to reside with her husband in the U.K., whereas if they had married prior to 2012, he would have been permitted to reside with her. Her rights, which are guaranteed by the Treaty, are being obstructed. Mrs Ormazabal is not being permitted to lead a normal life with her husband, despite being a citizen of the Union since birth and having travelled to a host Member State. By analogy with the ratio in Metock & Others (Area of Freedom, Security and Justice) [2008] EUECJ C-127/08, at [89], by refusing to allow the Claimant to join Mrs Ormazabal, the Defendant is discouraging her from continuing to live in the U.K. and is encouraging her to move to another country, against her will and in violation of her rights as a citizen of the Union.

47.

The 2012 amendment, if replicated in other member states, would produce the “paradoxical result” that “the right of freedom of movement of a Union citizen who is accompanied by third-country national family members would be reduced in proportion to the number of nationalities he has”: McCarthy and Others [2014] EUECJ C-202/13, per Advocate General at [75].

48.

Those EU citizens who benefit from the principle established by the CJEU in Surinder Singh Case C-370/90, namely, that a British citizen exercising community rights in another part of the EU is entitled to return with his third-country spouse, would also be excluded from the Directive by the 2012 amendment, if the U.K. Government had not made express provision for them in the EEA Regulations 2006, regulation 9.

49.

The fact that Mrs Ormazabal has settled in the U.K. does not take her outside the scope of the Directive, since permanent residence in another member state is both envisaged and facilitated by the Directive. The grounds upon which the right of permanent residence can be removed are strictly limited. There is no provision in the Directive for removal of the right of permanent residence on the ground of a change of immigration status under the domestic law of the host country, such as becoming a naturalised citizen of the host country.

50.

The Claimant also relied upon the decisions of the CJEU in Kahveci (External relations) [2011] EUECJ C-9/10 (and in particular the opinion of Advocate Sharpston at [74]), Kahveci and Inan [2012] EUECJ C-7/10 and C-9/10 at [22-41, with particular emphasis on 35-41]. The Claimant submitted that Member States are not permitted to modify unilaterally the scope of the system of gradually integrating Union citizens in the host Member State and no longer have the power to adopt measures which may undermine the legal status expressly conferred on Union citizens by the Directive, unless in compliance with public policy, safety or health concerns pursuant to the terms of the Directive. Otherwise, the aim of the Directive would be impeded by acquisition of the nationality of the host Member State.

The Defendant’s legal submissions 51.

The Defendant summarised her case in the following way: i)

The Directive does not provide for the circumstances in which citizenship of a host Member State is acquired. That is a matter for national law: see Case C369/90 Micheletti v Delegacion del Gobierno en Cantabria C-369/90 [1992] ECR I-4239; R (G1) v Secretary of State for the Home Department [2013] QB 1008; Pham v Secretary of State for the Home Department [2015] UK SC19, 3 All ER 1015 (in particular, per Lord Mance at [84- 89]).

ii)

The most valuable right conferred by the Directive is a right of permanent residence.

iii)

The acquisition of citizenship of a host Member State is a choice, to which advantages and disadvantages will attach.

iv)

A person who is a national of a Member State has an unconditional right to reside in that Member State by virtue of international law. He does not have any right to reside there under the Directive.

v)

Accordingly, his family members do not have any right to reside in that Member State pursuant to the Directive either, because their rights are

parasitic on the Union citizen’s. Family members have no autonomous EU law rights.

52.

vi)

The 2006 Regulations, which provide for that position, are therefore entirely lawful.

vii)

There is no EU free movement imperative which dictates a different result: namely, that this Claimant’s wife should be put in a more advantageous position than any other British citizen (whose family members are subject to domestic immigration rules) and any other EU citizen (whose right of residence, even if permanent, would still be qualified).

The Defendant disagreed with the Claimant’s interpretation of McCarthy, submitting that the CJEU also held that Mrs McCarthy’s U.K. nationality was, of itself, a fundamental bar to her being able to rely on the Directive as against the U.K., at [34]: “34. Since, as stated in paragraph 29 of this judgment, the residence of a person residing in the Member State of which he is a national cannot be made subject to conditions, Directive 2004/38, concerning the conditions governing the exercise of the right to move and reside freely within the territory of the Member States, cannot apply to a Union citizen who enjoys an unconditional right of residence due to the fact that he resides in the Member State of which he is a national.”

53.

The same conclusion was reached by the CJEU in Case C-456/12 O v Minister voor Immigratie [2014] QB 1163 (§§35 – 43), in which the CJEU stated: “42. Since, under a principle of international law, a State cannot refuse its own nationals the right to enter its territory and remain there, Directive 2004/38 is intended only to govern the conditions of entry and residence of a Union citizen in a Member State other than the Member State of which he is a national ...” “43. In those circumstances and having regard to what is said in paragraph 36 above [that Article 21 TFEU and the Directive do not confer autonomous rights on third country nationals], Directive 2004/38 is therefore also not intended to confer a derived right of residence on third-country nationals who are family members of a Union citizen residing in the Member State of which the latter is a national.”

54.

A person could not, therefore, simultaneously hold a right of residence under the Directive and by virtue of his nationality, because any right of residence under the Directive would be subject to conditions, whereas the right to reside by virtue of nationality is unconditional. No EU rights of residence are necessary in the case of those residing in their Member State of nationality, because they already have an unconditional right to reside there.

55.

Once a person is a British citizen, his right to reside in the U.K. is protected by international and domestic law, not by EU law. EU law does not facilitate or regulate his entry and residence (nor that of his family members) any more than it does the residence of a British citizen without dual nationality.

56.

Thus, where a Union citizen with a right of permanent residence in the U.K. elects to naturalise and acquire British citizenship, his right of permanent residence is automatically extinguished, or at the very least, rendered non-enforceable. The Directive does not provide for that consequence because it is a matter beyond its scope.

57.

The principle set out in McCarthy and O is reflected in the wording of Article 3(1) of the Directive which only applies to a Union citizen’s movement and residence “in a Member State other than that of which they are a national” (see also Metock at §§54, 67, 68, 73, 89).

58.

The definition of “EEA national” in the 2006 Regulations, and the effect of those regulations in the Claimant’s case, is therefore wholly consistent with EU law.

59.

The decision of the CJEU in Cases C7/10 & C9/10 Staatssecretarias van Justitie v (1) Kahveci, (2) Inan [2012] 2 CMLR 107, has to be read subject to the more recent decision of the CJEU in Case C-171/13 Raad van bestuur v Demirci [2015] 2 CMLR 1055. Kahveci was expressly decided by reference to the wording of the relevant provision of Decision 1/80, the objectives of that Decision and the system established by it [25]. One of the objectives of Decision 1/80 is to promote family reunification.

60.

The reasoning in that case has no application to the present situation. Directive 2004/38 is differently worded, establishes an entirely different system and has different objectives. Its purpose is not family reunification.

61.

In some circumstances, EU law treats the family member of a Union citizen in his Member State of nationality as having a right to reside, but that is only where a Union citizen is returning to the Member State of which he is a national: see, for example, Case C-370/90 Surinder Singh. In that situation, EU law is protecting the right of free movement to the Member State of which the Union citizen is not a national, as opposed to any right to reside in the home Member State; it is removing an obstacle to the Union citizen leaving his or her Member State of nationality in order to protect the right of free movement to another Member State. Case C-203 McCarthy v SSHD [2015] QB 651 is a further example of that principle in action. On the specific facts of that case (in which the British citizen’s non EEA national family member had family member rights in Spain), the Directive was held to apply.

62.

The relevant principle does not apply in this case. There is no obstacle to the Claimant’s wife exercising her right to move and reside in other Member States. Her husband would have rights of residence in those other Member States as her spouse.

Conclusions 63.

In my judgment, a reference to the CJEU is required since it is unclear whether the 2012 amendment to the definition of “EEA citizen” in the EEA Regulations 2006, and

the decision that Mrs Ormazabal, who is a Spanish national, can no longer rely on her rights as a Union citizen under the Directive within the U.K. following naturalisation as a British citizen, unlawfully restrict the right to free movement under TFEU Article 21 and Directive 2004/38/EC. 64.

The test for acte clair has traditionally been whether the Court can determine the issues before it “with complete confidence” and “with no real doubt”: per Lord Bingham MR in R v International Stock Exchange ex p. Else [1993] QB 534. Having given careful consideration to the competing submissions from the parties, I consider that the criteria for a reference are met in this case.

65.

This is a test case and there are other claims which turn on the same issue which have been stayed pending the outcome of this case.

66.

After consultation with the parties, the question which I refer to the CJEU is as follows: “Where a Spanish national and Union citizen: i)

moves to the United Kingdom, in the exercise of her right to free movement under Directive 2004/38/EC; and

ii)

resides in the United Kingdom in the exercise of her right under Article 7 or Article 16 of Directive 2004/38/EC; and

iii)

subsequently acquires British citizenship, which she holds in addition to her Spanish nationality, as a dual national; and

iv)

several years after acquiring British citizenship, marries a third country national with whom she resides in the United Kingdom;

are she and her spouse both beneficiaries of Directive 2004/38/EC, within the meaning of Article 3(1), whilst she is residing in the United Kingdom, and holding both Spanish nationality and British citizenship?”

Neutral Citation Number: [2016] EWCA Crim 71 Case Nos: 2006/04441/A4, 2014/04477/A2, 2014/04681/A7, 2014/04729/A6, 2014/05293/A8, 2014/05593/A7, 2015/00017/A8, 2015/00369/A6, 2015/00380/A2, 2015/01547/A8, 2015/01741/A4, 2015/01840/A7, 2015/02010/A7 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/03/2016 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE OPENSHAW and MR JUSTICE WILLIAM DAVIS ——————–Between: Regina - and (1) Mark Roberts (2) Natasha Precado (3) David Craig Quaglia (4) Paul Anthony Woodward (5) Simeon Peter Gittens (6) Joseph Steven Powney (7) Nigel Darren Garbutt (8) Jason William Warwick (9) Martin Lee Fay (10) Kelly Georgina Diveney (11) Darren Paul Byrne (12) Sonnie Michael Wakeling (13) Sean Dowe

Respondent Applicants

—————————————-J Bennathan QC and E Coverley for the Applicant (Roberts) J Bennathan QC and B Keith for the Applicant (Precado) J Bennathan QC and N Beechey for the Applicants (Quaglia and Byrne) P Rule for the Applicant (Woodward) J Bennathan QC and R Banks for the Applicant (Gittens) J Bennathan QC and C Ashcroft for the Applicant (Powney) J Bennathan QC and K Thorne for the Applicants (Garbutt and Dowe) J Bennathan QC and S Field for the Applicant (Warwick) J Bennathan QC and Miss C Hawley for the Applicant (Fay) J Bennathan QC and Miss C Patrick for the Applicant (Diveney) J Bennathan QC and T Dyke for the Applicant (Wakeling) J McGuinness QC and S Heptonstall for the Respondent

R v Roberts and others

Judgment Approved by the court for handing down.

Hearing date: 10 December 2015


Judgment Lord Thomas of Cwmgiedd, CJ: INTRODUCTION 1.

There are before the Court 13 applications for an extension of time in which to apply for leave to appeal against sentences of imprisonment or detention for public protection imposed between 2005 and 2008 under the Criminal Justice Act 2003 (CJA 2003).

The sentence of Imprisonment for Public Protection: 2005-2012 (a)

The original sentence of IPP 2005-2008

2.

Sentences of imprisonment for public protection and for offenders under 18, detention for public protection, (IPP) were brought into effect on 4 April 2005 under the dangerous offender provisions contained in Chapter 5 of Part 12 of the CJA 2003. These provisions followed a review of sentencing carried out for the then Home Secretary by John Halliday, set out in a report published in July 2001 entitled Making Punishments Work - a Review of the Sentencing Framework for England and Wales.

3.

S.225 and s.226 of the CJA 2003 set out the detailed provisions for those convicted of serious specified offences, if the offender was dangerous. An offender was dangerous if the court assessed that there was: “a significant risk to members of the public of serious harm occasioned by him of further specified offences”

4.

The court was not given the usual freedom in making that assessment. The CJA 2003 required the court to make the assumption of dangerousness for those over 18 if the offender had been convicted on an earlier occasion of a specified offence, unless it was unreasonable to do so. Specified offences were violent and sexual offences listed in Schedule 15 and included wounding or causing grievous bodily harm under s.20 and assault occasioning actual bodily harm under s.47 of the Offences Against the Person Act 1861 which carried a maximum sentence of 5 years imprisonment.

5.

Where the offender was found to be dangerous and over 18, the court was required to pass a sentence of IPP or life imprisonment. It is important to emphasise that the CJA 2003 removed all discretion from the court once it was found that the offender was dangerous. The sentence had to be IPP or life imprisonment.

6.

The court was required to set a minimum term to be served. This was calculated as half of the notional determinate term that would have been passed if an IPP had not been imposed; this was intended to reflect the culpability and harm caused by the offence and the punishment required. Otherwise the length of the sentence was indeterminate as, before an offender was released, he had to pass a threshold of showing that, under s.28(6) of the Crime (Sentences) Act 1997 it was “no longer necessary for the protection of the public that he should be confined”, a test most recently examined in R (King) v Parole Board [2016] EWCA Civ 51.

7.

12 of the applications before the court relate to those who were sentenced to IPP in the period before July 2008. In each case the minimum term has long expired; for example the minimum term for one of the appellants, Roberts, was under a year; he

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R v Roberts and others

was sentenced when 18 in May 2006 (see paragraph 48 below); that of Precado sentenced in January 2007 when aged 23 was 6 months (see paragraphs 59 and 69 below). (b) 8.

©

The amended sentence of IPP 2008-2012 In 2008 Parliament by the Criminal Justice and Immigration Act 2008 modified the sentence of IPP. The amended provisions removed the statutory assumption of dangerousness, removed the mandatory imposition of IPP where the offender was found to be dangerous and removed some offenders from the scope of the sentence by reducing the list of specified offences and by stipulating that the minimum term had to be at least 2 years save where the offender has committed an offence listed in yet another schedule. The amendments did not affect the position of those who had been sentenced between April 2005 and July 2008. One of the applications before the court, Woodward, relates to an offender sentenced after July 2008. The abolition of the sentence of IPP

9.

In 2012 Parliament abolished the sentence of IPP by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) for all offenders convicted after 3 December 2012. The abolition did not affect those who had been sentenced to IPP in the period between 2005 and 2012, but s.128 enabled the Secretary of State to modify the threshold for release. No modification has so far been made, a point to which we return at paragraph 45.

10.

As at 4 March 2016, there are over 4,000 still in custody under a sentence of IPP (about 5% of the total prison population) and a significant further number who are subject to the licence terms of their IPP and therefore still subject to recall to continue to serve their sentence of IPP.

(d)

The reason for these applications

11.

In each of these applications the applicant seeks to appeal many years out of time against the sentence of IPP. No appeals were brought when they should have been within the 28 day period after sentence specified by s.18(2) of the Criminal Appeal Act 1968 for making applications for leave to appeal. It seems clear that it was perceived at the time there would be no prospect of success in any such application.

12.

All the applicants have been either detained in custody long after the expiry of the minimum term or have been recalled for breach of licence as, for example, Gittens (see paragraph 98), Diveney (see paragraph 147) and Wakeling (see paragraph 165). Some were very young when such sentences were imposed - for example Roberts (see paragraph 48), Powney (see paragraphs 109, 111 and 112) and Fay (see paragraph 137).

13.

The applicants now seek an extension of time under s.18 (3) of the Criminal Appeal Act 1968 to challenge the correctness of the sentences imposed on them. In contrast to the period of 28 days normally allowed, the applicants seek extensions of between 5 and 9 years either to apply for leave or, in one case, to renew the application after refusal by the Single Judge many years after the expiry of the 14 day period allowed for making an application to renew. They argue that because of the position in which

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R v Roberts and others

they find themselves, the court should look again at the sentence, even if at the time no-one would have thought they were wrong in principle or manifestly excessive. 14.

These cases were heard together so that the court could consider whether time should be extended.

THE GENERAL PRINCIPLES (a)

The central submission of the applicants

15.

The central submission of each of the applicants was that the imposition of the IPP was not justified by the statutory criteria as explained by the case law of this court, particularly R v Lang [2005] EWCA Crim 2864, [2006] 2 Cr App R(S) 3 to which we refer at paragraph 22.i) below and when considering the individual applications.

16.

It was submitted that: i)

Whatever may have been the position at the time the sentences of IPP were passed, the court had power under s.11 of the Criminal Appeal Act 1968 to pass sentences that, in the light of what had happened over the intervening years, now would be the proper sentence.

ii)

This court should reconsider the assessments made by sentencing judges in the light of Lang. The court should examine with particular care cases where proper reasons were not given and cases where young offenders were sentenced.

iii)

A time could and had been reached when the length of the imprisonment was so excessive and disproportionate compared to the index criminal offence that it could amount to inhuman treatment under Article 3 or arbitrary detention under Article 5 of the European Convention on Human Rights. That was because the detention no longer had any meaningful link to the index offence. A much delayed review of a sentencing decision could therefore be a mechanism the court could employ to avoid a breach of these Convention Rights. As the period now served by each of the applicants was so much longer than any conceivable determinate sentence would have required, the continued detention amounted to preventative detention and was therefore arbitrary.

We will consider these in turn. (b)

The role of the Court of Appeal as a court of review

17.

It was submitted on behalf of the applicants as their first general submission that s.11 of the Criminal Appeal Act 1968 permitted the court to allow an appeal if the court considered that the appellant should be sentenced differently. This was in contrast to the power under the original Act, the Criminal Appeal Act 1907, where the court’s power arose where the court considered a different sentence “should have been” passed. This court was therefore entitled to review the reality of the sentence, as it had turned out to be, even long after the judge had passed sentence. In the cases of these sentences of IPP, they had been manifestly excessive in the result. Sentencing

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R v Roberts and others

judges could not have foreseen the effect that the sentences would have had. The court was therefore entitled years later to sentence again on a different basis. 18.

S.11 provides: “On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may— (a) quash any sentence or order which is the subject of the appeal; and (b) in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence; but the Court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below.”

19.

It is well established that this court is a court of review. In R v A&B [1999] 1 Cr App R (S) 52, Lord Bingham CJ made this clear at page 56: “the Court of Appeal Criminal Division is a court of review; its function is to review sentences imposed by courts at first instance, not to conduct a sentencing exercise of its own from the beginning.”

20.

There is no basis for departing from the principle so clearly expressed by Lord Bingham. This court considers the material before the sentencing court and any further material admitted before the court under well established principles. It considers whether on the basis of that information the sentence was wrong in principle or manifestly excessive. It does not, years after the sentence, in the light of what has happened over that period, consider whether an offender should be sentenced in an entirely new way because of what has happened in the penal system or because, as in ZTR [2015] EWCA Crim 1427, the offender has supplied information long after conviction. This court was not established to perform the function suggested; it is not constituted to carry out the suggested function; and it could not do so as presently constituted.

21.

There is under our constitution the available means to rectify any injustice in the way in which the operation of these sentences has in fact eventuated. The review of sentences in the light of events occurring long after the original sentence is a matter for the Parole Board or, if a change is required for the regime for release, as we discuss at paragraphs 43 and following below, for the Executive and Parliament under the powers granted under s.128 of LASPO 2012. Such a change would not amount to any impermissible interference with the sentence passed by the courts. It would be to correct a position that may have been unforeseen when the IPP sentencing regime was enacted.

Judgment Approved by the court for handing down.

© 22.

R v Roberts and others

The case law The second general submission was that this court should carefully review the sentences in each case in the light of the case law developed during the period during which the sentence of IPP was part of the statutory sentencing framework laid down by Parliament. It is necessary briefly to refer to 3 significant cases: i)

On 3 November 2005, in a judgment of this court given by the then VicePresident, Rose LJ, R v Lang, this court gave guidance in relation to certain of the provisions of the Act at paragraphs 15-17.

ii)

On 20 October 2006, in a judgment of this court given by the President of the Queen’s Bench Division, Sir Igor Judge (as he then was) in R v Johnson [2006] EWCA Crim 2486, [2007] 1 Cr App R (S) 112, this court made clear that the court should not, on well-established principles, interfere with the decision of a judge to impose an IPP if the sentence was one open to him.

iii)

On 26 November 2008 in a judgment of this Court given by Lord Judge CJ in R v C [2009] 1 WLR 2158, [2009] 2 Cr App R (S) 22, this court stressed the need to consider the alternatives to IPP as it was a “draconian sentence”

23.

We have carefully considered in each of the applications, whether the sentence of IPP imposed by the judge was imposed in accordance with the statutory criteria and the guidance given by this court, particularly in Lang, particularly in the applications before us where the guidance was given after the sentencing decision made by the judge. In each case, for the reasons we set out in respect of each application, we are satisfied that each of the sentences was passed in accordance with the statutory criteria as interpreted in the case law of this court.

24.

It must be recalled that in many of the 12 applications which relate to the sentence of IPP before the changes made in July 2008, the judge had, by the express terms of the CJA 2003, no discretion as to whether to pass such a sentence if the offender was found to be dangerous. It is also important to stress that the CJA 2003 required the judge to assume that the offender was dangerous if he had committed a previous specified offence, unless the assumption was unreasonable. The case of Quaglia is an illustration of the way in which the assumption operated (see paragraph 79 below). As we explain, each judge faithfully and properly gave effect to the terms of the CJA 2003; they had no discretion under the CJA 2003 until it was amended in 2008, if they could not find the assumption was unreasonable.

25.

As an alternative to the submission which we have just considered, it was submitted that this Court should not follow Johnson in upholding a sentence which was within that area of judgment open to a judge to pass, but should instead, in the light of the observations such as those of Lord Carnwath at paragraph 60 in Pham v Secretary of State [2015] 1 WLR 1591, give anxious scrutiny to each decision as human rights were engaged as sentences of custody deprived persons of their liberty. We cannot accept this approach. The Criminal Appeal Act 1968 sets out the approach this court should take. That approach has been carefully developed under the common law and the Human Rights Acts in a manner entirely consistent with its function as a court of review of sentences passed by the sentencing court.

Judgment Approved by the court for handing down.

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26.

We have also carefully considered any case where a judge did not give full reasons as to why the offender was dangerous. As is set out in the paragraphs of this judgment addressing the specific application where this happened, we are satisfied that the sentence was entirely justified – see Gittens at paragraphs 105-108 below. We have applied the same approach to the application where what the judge said on sentence cannot now be found – see Diveney at paragraphs 146 and 152.

27.

If we had concluded that the sentences of IPP had been wrongly imposed and a determinate sentence should have been imposed, a question would have arisen as to the determinate sentence that should be substituted given the fact that, in some of the applications, the offender would have been in custody for more than twice the minimum term imposed and there would be obvious difficulties in releasing an offender without any licence conditions that would have provided for supervision in the community As the issue does not arise, we would simply record that we would have considered imposing extended sentences (as was done in the decision in GJD to which we refer at paragraph 42 below).

28.

We would have also considered the submission made for the first time on behalf of the applicants in the course of the hearing that, as under s.29(4) of the Criminal Appeal Act the court had power to impose a determinate sentence that commenced from the date of this court’s decision, that power could be used to ensure that a licence period could be imposed. There would be no infringement of the principles that the sentence imposed could be more onerous, as any such licence would be less onerous than the licence to which the offender was subject under the sentence of IPP. The respondent accepted that there was such a power, but as the only case in which the court had exercised it was in R v Turner (Bryan James) (1975) 61 Cr App R 67 at 92, the court would be “breaking new ground” and would have to consider some difficult issues to which that would give rise. Whether it would be right to exercise the power in the way suggested and in the light of the difficulties to which our attention was drawn must await a decision of this court where the issues arise for decision; we express no view.

(d)

The European Convention on Human Rights

29.

We turn to the third general submission advanced to us as set out at paragraph 16.iii) that reviewing a sentence decision many years after the sentence could be a mechanism through which the court could prevent detention being in breach of Articles 3 or 5 of the Convention.

30.

There is nothing to suggest that a sentence of IPP in itself is a violation of Articles 3 or 5. All that has been suggested is that the way in which a person subject to IPP has been dealt with long after sentence may render the detention arbitrary. This would not make the original decision of the court wrong. In James v UK (2013) 56 EHHR 12 the Fourth Section of the Strasbourg Court concluded that the failure to provide those serving IPPs access to courses to enable them to satisfy the conditions for release could render their continued detention arbitrary. In R (Kaiyam) and R (Haney) v Secretary of State for Justice [2015] AC 1344, the Supreme Court analysed that decision. It held that although the Secretary of State had a duty to provide facilities for rehabilitation, if he failed to do so, the remedy was damages rather than a declaration that the detention was unlawful. As Lord Mance and Lord Hughes said at paragraph 39 in giving the judgment of the court:

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“his detention remains the direct causal consequence of his indefinite sentence until his risk is judged by the independent Parole Board to be such as to permit his release on licence.” 31.

It is only if the system of review breaks down or ceases to be effective could it possibly be the case that the detention becomes arbitrary: see R (Walker) v Secretary of State for Justice (Parole Board intervening) [2010] AC 553 as explained at paragraph 11 of Kaiyam and Haney. If such a state of affairs was reached, this would not be the consequence of the original sentence providing for arbitrary detention, but of subsequent events. It would not, therefore, be a matter for this court. It would be as a result of a failure by the Secretary of State properly to carry out the sentence of the court or a failure by the Parole Board. Thus it would be a matter for judicial review of the actions of the Secretary of State or the Parole Board by the procedures provided before the Administrative Court with the evidence necessary for such an application.

32.

A final submission was made based on Mr Rule’s submissions in R v Docherty [2014] EWCA Crim 1197, [2014] 2 Cr App R (S) 76. In that case the appellant was convicted of an offence of wounding with intent on 13 November 2012. As the provisions abrogating the sentence of IPP to which we have referred in paragraph 9 did not come into force until 3 December 2012, although enacted by Parliament on 1 May 2012, the judge applied, as he was bound to do, the law as set out in s.225 and following of the CJA 2003. He found that he was dangerous and sentenced him to IPP. Apart from the conventional submission that the sentence of IPP should not have been imposed, it was submitted that the imposition of such a sentence after Parliament had decided to abolish it was a breach of the ECHR (Articles 7, 5 or 14) and of the principle of what is known as the lex mitior.

33.

As we understand the argument, it was submitted that there was unlawful discrimination against the appellant as he was being subjected to a sentence of IPP when Parliament enacted LASPO 2012 in May 2012 with effect from a date to be appointed, but he was nonetheless subject to that sentence by reason of the date of his conviction being between that date and the date the abolition was brought into force on 3 December 2012. It was also submitted that Article 7, as interpreted by the Strasbourg Court in Scoppola v Italy (no 2) (2010) 51 EHHR 12, required a court, in the event that the legislature had reduced the penalty between the time the crime was committed and the conviction, to impose the reduced penalty. This court did not accept these arguments, but a point of law was certified and permission to appeal was granted in February 2015. The appeal is to be considered by the Supreme Court in May 2016.

34.

If the Supreme Court accepts the arguments advanced on behalf of Docherty, it can make no difference whatsoever to the present applications, as all were convicted and sentenced many years before Parliament enacted LASPO 2012 in May 2012 abolishing the sentence of IPP with effect from a date to be appointed. We cannot see how it can be suggested that a sentence lawfully and properly passed many years before Parliament enacted the change in the law can be invalidated by that subsequent change in the law by Parliament.

35.

We would add one further point simply to record an argument addressed to us by the respondent to the effect that the position was much more complex than suggested.

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That further submission was based on the decision in R v Gintas Burinskas [2014] EWCA Crim 334, [2014] 1 WLR 4209, [2014] 2 Cr App R (S) 45 where this court considered the circumstances in which a sentencing court could exercise the power under s.224A and s.225 of the CJA 2003 as amended by LASPO 2012 to pass sentences of life imprisonment for those convicted after 3 December 2012. At paragraphs 12-23, the court considered the submission that it would be inappropriate to pass a sentence of life imprisonment under the provisions as amended by LASPO 2012 when an offender might have been sentenced to IPP in respect of an offence committed after 3 December 2012 had IPP continued as an available sentence. The court concluded that it was inevitable that there might be circumstances where a person who would have been sentenced to IPP might be sentenced to life imprisonment under the new provisions. (e)

The principles applicable to an extension of time

36.

Rule 36.4(b) of the Criminal Procedure Rules requires the applicant to give reasons for requiring an extension of time. Any application for an extension of time to renew is within the discretion of the court which always requires reasons to be provided by the application as to why the court should grant an extension of time. As this court made clear in R v Wilson [2016] EWCA Crim 65, the reasons for the extension must always give an explanation for the delay in making the application.

37.

In deciding whether to grant an extension, the court will consider all the material circumstances, including the explanation for the delay and the cogency of the reasons in seeking an extension when determining whether it is in the interests of justice to grant an extension: see, for example, Hamilton v R [2012] UKPC 21, [2013] 1 Cr App R 13, at paragraph 17 and R v Thorsby [2015] 1 Cr App R (S) 63 at paragraphs 12-18. There is no limit on the court’s discretion.

38.

As is clear from the detailed reasons given by us in respect of each application before us, we have not based our decision in any of these cases simply on the fact that the application is made years out of time, but on a consideration of all the circumstances, including our review of each of the sentencing decisions. We have taken that course in these applications to enable the court to review the general position of those sentenced to an IPP who are still in custody or subject to licence years after the expiry of a minimum term. We have done this in the particular circumstances of these applications which were specially conjoined so that the court could consider the general approach this court should take given the nature of the sentences of IPP, the controversy that the outcome which has resulted from this sentencing regime has caused, as reflected in the concern raised in Parliament and elsewhere and the time the applicants have actually spent in custody.

39.

However, this is not any indication of any change in the practice of this court summarised in Thorsby at paragraph 15. Time limits are set for good reason and in the interests of justice. They must be strictly observed unless there are good and exceptional reasons for their not being so observed. As was made clear by Lord Taylor CJ in R v Burley - an unreported decision referred to in Williams [2010] EWCA Crim 3289 at paragraph 5 – the interests of justice as a whole require the strict observance of time limits. It is particularly important in the case of a sentence appeal that it is brought within the time frame required so that the offender knows as soon as

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possible what his position is with finality and so that his rehabilitation can be planned accordingly by those who manage him in HM Prisons. (f) 40.

Obligation to consult the former lawyers. In all of the applications except that of Precado (see paragraph 60), all of the applications are made by those who did not either represent the offender as a solicitor or appear as an advocate at the sentencing hearing. In R v McCook [2014] EWCA Crim 734, this court made clear that it was the duty of any new representative to make inquiry of those who represented the offender at the trial so that they are apprised of all relevant information. Although that decision concerned an application for leave to appeal against conviction, the same duty applies in an application for leave to appeal against sentence.

Conclusion on the general principles (a)

The position of this court

41.

We have reviewed these 13 cases in detail. In each we are satisfied that the judge correctly applied the law and passed a sentence in accordance with the CJA 2003 as interpreted in the decisions of this court.

42.

There may of course be cases where in certain specific circumstances the judge made an error of law (such as imposing such an IPP for an offence committed before the coming into force of the provisions as happened in R(GJD) v Governor of Her Majesty’s Prison Grendon [2015] EWHC 3501 (Admin), R v GJD [2015] EWCA Crim 599). However, we wish to make clear that where the judge has followed the provisions of the CJA 2003 as interpreted by the decisions of this court and passed a sentence of IPP in circumstances where it was properly open to the judge to pass such a sentence, this court will not now revisit sentences of IPP on the bases argued in these applications. Unless clear new points are raised, the court will in all such cases in the future simply refuse an extension of time without more. The remedy, if any, is one that the Executive and Parliament must address.

(b)

The issue for Parliament

43.

As the principles on which this court exercises its jurisdiction are clear and as the judges were passing sentences faithfully and properly following the clear terms of the CJA 2003, as they were bound to do, it is not permissible for the reasons we have given for this court to set aside sentences that were properly and lawfully passed.

44.

We are mindful of the substantial criticism that many years after the expiry of minimum terms, sometimes of a very short period, many sentenced to IPP remain in custody or have been recalled to custody for breach of their licence conditions. It is clear to us from the applications before us that: i)

The effect of a long term of imprisonment with no certain date of release is that in some cases it may increase the likelihood that an offender will offend again on release.

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The effect of the license provisions will mean that offenders are subject to long periods of licence and, if they offend, are recalled – see for example Roberts (see paragraph 50) and Diveney (see paragraph 147).

45.

Criticism has also been made of the imbalance between the threshold test that brought an offender within the scope of an IPP, namely a significant risk to members of the public of serious harm occasioned by him of further specified offences and the threshold test for release, namely it was no longer necessary for the protection of the public that he should be detained. An analysis of the difference is set out in Sturnham v Secretary of State for Justice and the Parole Board [2013] 2 AC 254 at paragraphs 40-48. As we have set out at paragraph 9, Parliament has given to the Secretary of State power to alter the threshold test for release. As we have observed, there is some evidence that the effect of long periods of imprisonment or the recall to prison of those sentenced to IPP under their licence requirements may be either impeding their rehabilitation or increasing the risk they pose. It is not for this court to examine that evidence or to suggest a new test which might be premised on the basis that the Parole Board should take into account, as a balancing factor, the risks posed by continued detention or long periods of licence. That must be a matter for Parliament and the Secretary of State.

46.

It will not be easy to find a ready solution, for simply to release those who have completed their tariff periods would have the consequence that many would be put into the community without any supervision and they might well pose a risk of danger. It would appear that there is no likely solution other than (1) significant resources be provided to enable those detained to meet the current test for release which the Parole Board must apply or (2) for Parliament to use the power contained in s.128 of LASPO 2012 to alter the test for release which the Parole Board must apply or (3) for those in custody to be re-sentenced on defined principles specially enacted by Parliament.

47.

This is not a case where the common law took a wrong turning as it did in the case of joint enterprise as recently set out in the judgment of the Supreme Court in Jogee [2016] UKSC 8 in which the courts corrected the common law. It was Parliament which legislated to establish a regime of sentences of IPP in terms which the courts have faithfully and properly applied. It must, in our democracy and in accordance with the rule of law, be for Parliament to provide a correction for the outcome if it so wishes. Such a correction will in the circumstances not in any way interfere with the fundamental constitutional principle that the independent decision of the court must be respected, because the sentences were premised on the condition that it would be for the Parole Board to determine the terms of release.

OUR DECISIONS ON THE 13 APPLICATIONS (1) 48.

Mark Roberts On 17 May 2006, following his earlier plea of guilty to an offence of attempted robbery, as charged in count 1, Mark Roberts, then aged 18, was sentenced by HH Judge Milford QC at the Crown Court in Newcastle to IPP under s.225 of the CJA 2003, with a minimum term specified of 359 days. No separate penalty was passed following his plea of guilty to breaching an antisocial behaviour order, as alleged in count 3. A charge of theft as alleged in count 2 was ordered to lie upon the file.

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49.

Roberts was advised by counsel originally representing him that there were no arguable grounds of appeal, but Roberts himself applied for leave to appeal against sentence on the grounds that the sentence was harsh. That application was refused by the single judge in October 2006 and was not pursued. Technically, therefore, this is an application for an extension of time (of fully eight years), in which to renew his application following refusal by the single judge.

50.

This further application followed his appearance before the Crown Court at Sheffield in September 2014, when a different sentencing judge expressed disquiet that Roberts was still in prison pursuant to the sentence of IPP, having been recalled after his earlier release. This further application was then made on 29 September 2014 by those who represented him at that hearing; the extension of time required is 8 years. Roberts has since been released again and is out on licence.

51.

The facts were as follows. i)

On the evening of 7 February 2006, a young man, Jonathan Davidson, drove to his girlfriend’s house in Sunderland in his new Peugeot car. As he stopped outside the house, Roberts, who was a stranger to him, approached the car and lent through the window so as to engage him in conversation. This was a ruse to enable him to reach inside the car and to snatch the car keys from the ignition, which he did. He then ordered the complainant out of the car, and when he refused to do so, Roberts opened the car door and dragged him out. The complainant attempted to take back his car keys and a struggle between them developed during which Roberts punched the complainant several times in the face.

ii)

Roberts was then joined by two others; the complainant was overpowered until others joined in on his side and Roberts made off.

iii)

The complainant was left with a swollen left cheek, soreness to his jaw, cuts to the top of his head, abrasions and soreness to his face.

iv)

Roberts was arrested the next day; in interview he denied responsibility but he was later picked out at an identification parade, and in due course pleaded guilty, as we have already said.

52.

Roberts was aged only 18 at that time but he had a very bad criminal record including two convictions for robbery when he was aged 14, for the second of which he received a sentence of four months detention and a training order. He had made 13 previous court appearances for a total of 48 offences, mainly offences of dishonesty, but also for racially aggravated common assault and racially aggravated criminal damage and for public order offences. He had been released from his last sentence of six months custody in a Young Offender Institution on the very day that he committed the instant offence. He was, incidentally, also in breach of his antisocial behaviour order.

53.

As was set out in the pre-sentence report, following his release from custody in February 2006, the offence was committed after he had drunk a great deal of lager and cider to prove to his younger associates that he was ‘still one of the gang’. The probation officer identified a pattern of offending linked to his continuing association

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with other offenders and to his drinking, which he was presently unable or unwilling to address. Consequently he was of the opinion that Roberts was extremely impulsive, and then rarely considered the consequences of his actions; he concluded that Roberts presented a high risk of reoffending. 54.

The sentencing judge pointed out that because he had a previous conviction for a specified offence, namely robbery, the statutory assumption that he was dangerous within the meaning of the CJA 2003 applied to his case. The judge then considered the circumstances relevant to the risks that he presented; having done so, he was satisfied that it would be unreasonable not to make the assumption that he was dangerous. Indeed, he pointed out that his counsel had not attempted to persuade him to do otherwise.

55.

The judge had particularly in mind: the facts of the instant case; that this offence was committed on the very day that he was released from his earlier custodial sentence; his poor criminal record (including the previous conviction for robbery, admittedly committed when he was only 14); that he was in breach of his antisocial behaviour order and that he appeared to be unwilling to address the underlying causes of his offending.

56.

Accordingly, he came to the conclusion that he was indeed dangerous, within the meaning of the CJA 2003 and passed a sentence of IPP. Plainly there were cases where the judge would consider the possibility that a young offender might improve, but there was no reason at all to think in 2006 that Roberts might do so. We can see no fault or flaw in the judge’s approach or in his reasoning; indeed the decision seems to us to have been inevitable on the terms of the CJA 2003 as it then stood.

57.

There was no complaint about the minimum term, which was fixed on the basis that the appropriate sentence after a timely plea was 32 months, which the judge then halved and gave him credit for the day that he had spent in custody.

58.

In accordance with the principles which we have already set out, this application for an extension of time is refused.

(2)

Natasha Precado

59.

On the first indictment, Precado, then aged 23, pleaded guilty to an offence of arson, intending to damage property or being reckless as to whether property would be damaged, contrary to section 1 (1) and (3) of the Criminal Damage Act 1971. On the second indictment, she was convicted after a trial of five further counts of simple arson, two counts of common assault and one count of criminal damage.

60.

On 17 January 2007, for the offences of arson she was sentenced by HH Judge Richardson, at Snaresbrook Crown Court, to IPP under s.225 of the CJA 2003, with a specified minimum term of 6 months. No separate penalty was imposed in relation to the assaults or criminal damage. She was advised by counsel at the time not to appeal, but her instructing solicitor has kept her case under review and has recently instructed new counsel.

61.

Precado seeks an extension of time of over 7½ years for leave to appeal against sentence. She currently remains in custody. A report prepared for this court set out a

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bleak history of her period in prison and the significant difficulties in rehabilitating her into the community; there is a risk of her becoming institutionalised. During her time in custody, she has spent one short period in hospital receiving psychological treatment. 62.

The facts are as follows. i)

Precado committed the offences on three separate days while in custody at HMP Holloway.

ii)

On 8 October 2005 she started a fire in her cell in the segregation unit. Prison officers described her as “playing up” and being verbally abusive earlier that day. That evening officers saw smoke in the corridor and flames coming from the hatch in the cell door. Officers managed to enter the cell, put the fire out and dragged her out. She had set fire to paper and clothing. That arson caused £600 worth of damage.

iii)

On 21 January 2006, once again she was described as being hostile to staff and as a result she was moved to cell 31. Shortly afterwards she started a fire with a lighter she had concealed. Officers extinguished the flames through the hatch, entered the cell and removed her. She was then moved to cell 23. A short time later, officers discovered that she had started a fire in cell 23. Again they put the fire out. When officers went to remove her she punched one of them in the face causing his nose to bleed.

iv)

In the early hours of 23 January 2006 she damaged a television, a chair and a table in cell 25. She was verbally abusive and as her behaviour deteriorated she was removed from the cell. As she was being taken to another cell she kicked out twice, hitting one of the officers in the leg. She was put in cell 31. A short time later the officers saw smoke coming from under the door of cell 31. Again, officers put the fire out and removed her again, this time to cell 27. She then started another fire in that cell. Once again, officers had to enter the cell to extinguish the fire. She was removed and placed back in cell 25. Again, she started another fire by burning paper and tissues. Officers described her as being aggressive throughout.

63.

She was aged 23 at the time of conviction but already had a substantial criminal record. Between 1999 and 2005 she had 36 previous court appearances for 62 offences. She had numerous convictions for common assault, criminal damage and disorderly behaviour but only one conviction for a specified offence, that being an assault with intent to resist arrest, contrary to s.38 of the Offences against the Person Act 1861. She had been in custody on several occasions albeit for short periods of time.

64.

The pre-sentence report described her as being aggressive, chaotic and unpredictable; further, she reacted badly to uniformed officers and lawful restraint.

65.

The sentencing judge, sensibly as it seems to us, ordered a psychiatric report. This was provided by Dr Power in October 2006. The report stated that Precado had no discernible psychiatric illness but she did have an emotionally unstable personality disorder, consistent with the description of her being aggressive, chaotic and

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unpredictable. She had a dissocial personality disorder of the type not amenable to medical treatment. 66.

The sentencing judge considered that her motivation for committing the offences was unclear but she had said that the first arson was an attempt on her own life; his impression was that she was out of control and self-absorbed, not caring how much trouble and difficulty she caused for others and who had developed a taste for starting fires in prison. He noted that both the pre-sentence report and the psychiatric report found that she posed a high risk of causing serious harm to others.

67.

The judge found that despite her seemingly positive response to counselling in prison, he could not ignore the taste which she had developed for starting fires. He had no hesitation in finding that she posed a significant risk of causing serious harm to members of the public. The judge considered there to be a real possibility that she might start a fire in a hostel, house or block of flats and in doing so would likely cause great injury to others or loss of life.

68.

In reaching that conclusion, the judge stated that this had not been through any application of a statutory assumption but his own view of the danger that she presented having regard to her offending in the cases for which he was sentencing her. We might add that his assessment of the risk that she presented was shared by the writer of the pre-sentence report and the psychiatrist, as we have already observed.

69.

He considered that the appropriate determinate sentence would have been three years; one half of that is 18 months; from that he deducted the 12 months that she had already spent in prison to give a minimum specified term of just 6 months.

70.

That this term has long since been served is no reason to conclude that the sentence as originally passed was wrong. Indeed for the reasons we have given the judge was plainly entitled to conclude that she was dangerous and that the risk that she presented could be contained only by a sentence of IPP. Indeed faithfully and properly applying the law as laid down by Parliament, he could hardly come to any other conclusion.

71.

Accordingly, this application for leave to appeal her sentence out of time is doomed to fail and we refuse to extend time.

(3)

David Craig Quaglia

72.

On 22 February 2007, in the Crown Court at Stoke-on-Trent, following his earlier plea of guilty to an offence of arson being reckless as to whether life was endangered, contrary to section 1 of the Criminal Damage Act 1971, Quaglia, then aged 26, was sentenced by Mr Recorder Bowers QC to IPP, with a minimum term specified of 21 months.

73.

The advocate appearing for him at the original hearing advised against an appeal; that is not perhaps surprising since he had accepted that Quaglia was dangerous within the meaning of the CJA 2003.

74.

The single judge has referred his application for an extension of time (of fully 7½ years) in which to apply for leave to appeal against sentence to the Full Court. He has

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now served a sentence well beyond his tariff but remains in custody. It is said on his behalf that it is in the interests of justice for the case to be heard out of time. 75.

76.

The facts are as follows. i)

Quaglia was at the time aged 26. He was being taunted and bullied by a couple of brothers, who lived nearby; he was not alone in this since other neighbours had often complained that the brothers were causing trouble and nuisance on the estate.

ii)

On 23 July 2006, one of the brothers had called him a “grass”, had punched Quaglia in the face and knocked him off his bike, he had then threatened to burgle his house and smash up his mother’s car, he had then taken Quaglia’s bike and ridden off on it. Quaglia did not want to report the matter to the police, since he was afraid of reprisals; he decided to take his own revenge.

iii)

He went home and emptied a bottle of turpentine into an empty coffee jar; he then put some tissue paper in the top of the jar, so as to create a primitive petrol bomb. He went round to the brothers’ house, which was in a terrace, and knocked on the front door, to see if anyone was home; there was no answer so he assumed – wrongly as it turned out – that no-one was at home. He went to the back of the house, lit the tissue paper and flung the bomb at the house and ran off.

iv)

The bomb landed on a flat roof and burst into flames. Neighbours saw what had happened and managed to put the fire out with buckets of water. It could have been very different: a senior officer of the Fire Service pointed out that a fire originating in the guttering and soffit area of a traditional terraced property could develop rapidly and spread into the roof void.

v)

Meanwhile, Quaglia had himself rung the emergency services. When the police called, he said that he had petrol bombed the brothers’ house; he explained that he had had enough from them.

vi)

In interview, he explained that he was trying to scare the brothers because he was worried about his mother. He said he would not have done it if he thought anyone had been home. He accepted that it was a really stupid thing to have done. He apologised for scaring his neighbours.

He had many previous convictions mainly for low level assaults and public order offences. He did however have a previous conviction for possessing a knife and a conviction for affray, which was a specified offence; the notice of appeal stated that this was a domestic offence, as if to suggest that it was a matter of no consequence. In fact he returned home one night very much under the influence of drink, to find his partner with another man, he suspected her of being unfaithful, he fetched an air pistol and hit both his partner and her friend with the airgun, the resulting disturbance spread into the street, hence the charge of affray, for which he was sentenced to 4 months imprisonment. His longest previous sentence was six months’ imprisonment for theft in 2003.

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77.

The pre-sentence report identified a pattern of aggressive behaviour, use of drugs, alcohol and poor emotional management. The writer considered that he had a worrying attitude to weapons. Considering the facts of the instant offence, she thought that Quaglia posed a high and significant risk of harm to the public. It is, quite rightly, pointed out in the notice of appeal that this does not precisely address the statutory criteria, which required the offender to present a significant risk of causing serious harm.

78.

There was also a psychiatric report from Dr Vaggers, which although not focused on the risk that Quaglia presented, did make clear that Quaglia did not have any mental illness or psychiatric condition which predisposed him to arson; indeed, the report stated, in terms (at paragraph 108) that Quaglia did not have a dangerous fascination with fire setting.

79.

The sentencing judge considered that the arson was extremely serious. He correctly pointed out that arson was a specified offence and that Quaglia had a previous conviction for affray, which was another specified offence, which required the court to assume that he was dangerous unless it was unreasonable to apply the assumption; he did not find it unreasonable to come to that conclusion and accordingly he passed, as he was then bound to do, a sentence of IPP.

80.

It was argued before us that the sentence of IPP was wrong in principle. It is said that the assumption in section 229(3) of the CJA 2003 only bit because Quaglia had a previous conviction for affray in a domestic context. It was suggested that his previous convictions for low level violence had not caused any serious harm and did not, at least in themselves, indicate a significant risk of serious harm. The judge should not therefore have applied the statutory assumption.

81.

It was also said that that there were significant mitigating features in the arson; that it took place in daytime when there was less chance of anyone being home, but in fact somebody was at home; that he took steps to find out if anyone was home, but in fact the steps were ineffective; that the fire was not set at an entry or exit point, that it was started outside, not inside and that the damage was minimal, but it could have been very different had the fire taken hold, as it easily could have done. Furthermore it is said that Quaglia ran home and called the emergency services and then made full admissions and pleaded guilty at the first opportunity. But this was a case where he threw a lighted ‘turps’ bomb at an occupied house in revenge; had the fire taken hold, the occupier could easily have been harmed, or even killed, by fire or by smoke inhalation.

82.

We do not accept that there were substantial mitigating circumstances in the instant offence. It was a very serious offence, which created a gross and obvious risk to the occupier and indeed to the neighbours. He did have significant previous convictions, including for a specified offence. In our judgment, by passing a sentence of IPP, the Recorder was faithfully and properly applying the law as laid down by the CJA 2003. We see no fault in his reasoning or indeed in his conclusion.

83.

Accordingly, we refuse leave to extend time for appealing.

(4)

Paul Anthony Woodward

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NOTE: The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence, so that no publication of these proceedings should include any detail by which any of the complainants might be identified 84.

In the Crown Court at Maidstone, Woodward, then aged 48, was convicted after a trial on counts 1, 3, 4, 5, 6 and 8 – 11 of inciting a child to engage in sexual activity, contrary to section 10(1) of the Sexual Offences Act 2003. He was also convicted on count 2 of inciting a child under the age of 13 to engage in sexual activity, contrary to section 8(1). He was convicted on count 7 of sexual activity with a child, contrary to section 9(1). He was convicted on count 12 of possessing indecent photographs of children, contrary to section 160(1) of the Criminal Justice Act 1988.

85.

On 10 November 2008 he was sentenced by the trial judge, HH Judge O’Mahony, as follows: on count 4 to a sentence of IPP, under s.225 of the CJA 2003 (as amended), with a minimum term specified of 2½ years (predicated on a notional determinate term of 5 years) with a direction that the time spent on remand should count towards sentence. No separate penalty was passed on the other counts.

86.

A Sexual Offences Prevention Order was made which was recorded as indefinite in duration. We observe, in passing, that at some time the terms of this Order will need re-drafting in the light of the decision of this court in Smith [2012] 1 Cr App R (S) 82 when and if Woodward is eventually to be considered for release. A draft has been provided by counsel. He is presently still in custody.

87.

It is not certain what advice he was given after his conviction, but it is to be inferred that he was advised against an appeal. His application for an extension of time (of nearly 6 years) for leave to appeal against sentence has been referred to the full Court by the Registrar.

88.

The facts of each offence fell into very clear pattern. i)

Woodward who was then aged 48, held open house for adolescent boys, whom he enticed with offers of cannabis and payments for sexual favours. He arranged to pick them up in his car and take them back to his house; realising that his neighbours might suspect that something untoward was going on if they saw boys constantly arriving at his house, he would ask them to duck down below the level of the car windows so as to avoid detection.

ii)

The charges related to seven different boys; all told a similar tale. In the circumstances it is unnecessary to detail the particular circumstances of each count. Having lured them back to the house, he would invite them to masturbate in his presence, in return for money: typically £10 or £20. He sometimes asked if he could touch them but they always refused and he never forced himself upon them. He further humiliated some of the boys giving them money in return for watching them urinate, or even defecate. Some of the boys became frequent visitors. One of the boys was as young as 11. The course of offending covered a number of months.

iii)

Count 4, to which the sentence of IPP attached, was typical of the other offences; a 14 year old boy, who visited on four separate occasions, masturbated in Woodward’s presence and was paid to do so.

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iv)

When he was arrested, the police found that he had kept a written record describing in salacious detail what he had done and to whom.

v)

His computer was seized but only one indecent image was found, and that was at level one.

vi)

He was released on bail but his offending continued, except that he met the boys upon the street and did not bring them back to his house.

vii)

Despite the overwhelming evidence of these seven separate boys, Woodward contested the trial, which lasted a couple of weeks.

89.

The pre-sentence report made clear that, even after conviction, Woodward did not accept his guilt. He remained focussed on the impact such behaviour had had on him and did not demonstrate any awareness of victim empathy or consequential thinking. In view of his continued denials, he was unsuitable for any of the sexual offender treatment programmes. He had limited insight into the effects of sexual abuse on victims both in the short and long term. He was assessed as being a medium risk of re-offending.

90.

The judge heard the trial and was therefore in an excellent position to come to a conclusion as to the risks presented by Woodward who was 48 years old. He had been a teacher for many years but these offences were not committed within that context, as many testimonials confirmed. He had no previous convictions. He was in poor health. The judge said correctly, in our judgement, that he had persistently and over a significant period of time carried out organised recruitment of under aged boys for the purposes of his sexual gratification and interest. The judge recognised that the provisions of the CJA 2003, as amended in 2008, were not designed to be implemented for low level offending, but there were many aggravating factors: he gave the boys money, he offered them drink and cannabis, the offending continued after his arrest and release on bail. Furthermore, it did have a serious effect on some of the boys, who became understandably upset and confused. Furthermore, he continued to deny that he had a sexual interest in adolescent boys. The judge concluded that there was a significant risk of serious harm from future specified offences committed by him and thus there must – a word that the judge did indeed use - be an indeterminate sentence of IPP. He therefore passed such a sentence on one count, count 4 and imposed no separate penalty on all the other counts.

91.

He fixed the notional determinate sentence at 5 years imprisonment; thus the minimum term was 2½ years imprisonment.

92.

It was said in the grounds of appeal that the judge failed to properly consider lesser alternatives to a sentence of IPP; that the sentence was disproportionate or manifestly excessive because other combined lesser restrictions existed that would adequately protect the public. It was also argued that the effect of the sentence has been to fall foul of various Articles of the European Convention of Human Rights Articles, a point which we considered at paragraphs 29 to 32 above.

93.

It is important to note that Mr Rule does not contend that the finding of dangerousness was wrong when made at the time; indeed before us he specifically confirmed that Woodward was dangerous at the time of sentence. That being so, under the CJA, as

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amended, the judge was not required to pass a sentence of IPP, but Mr Rule contended, quite rightly, that the judge should have considered whether any alternative was available. The judge did not do so but that, no doubt, was because he was sentencing before the guidance given by this court in R v C to which we have referred at paragraph 22.iii) above. 94.

We must therefore consider whether there was any viable alternative. In the face of Woodward’s continued denials, an extended sentence would not provide any protection to teenage boys, since he would not have been eligible for any of the sex offending treatment programmes and he would be released presenting precisely the same risk as he did before. Nor could one say with confidence that the making of a SOPO would suffice, since he had already offended when on bail. So, in our judgement, the judge was really driven to conclude that Woodward posed a risk that could not be safely addressed other than by an indeterminate sentence.

95.

The simple fact is that he presented too great a risk of committing similar crimes against teenage boys to be safely released into the community and the commission of further offences might cause serious harm. As with the other applicants, arguments as to the danger he now presents should be directed to the Parole Board; in its decision of 6 October 2014, the Parole Board declined to order release or a move to open conditions.

96.

In all the circumstances, any appeal was bound to fail and the proper course is to refuse to extend time for appealing.

(5)

Simeon Peter Gittens

97.

On 13 December 2006 in the Crown Court at Worcester, following his conviction after a trial for an offence of robbery, Gittens, then aged 30, was sentenced by HH Judge Cavell to IPP, with a minimum term specified of 931 days, calculated as half of the 7 years considered to be an appropriate determinate sentence, less the time already served.

98.

He sought leave to appeal against conviction which was refused on 29 February 2008 by the Full Court. He did not then apply for leave to appeal against sentence, almost certainly on the basis that counsel then representing him did not consider an appeal against sentence to be arguable. Unfortunately the advice by trial counsel in respect of sentence cannot be found. Some 7 years later, Gittens seeks leave to appeal against sentence, asking for an extension of very nearly 8 years. He has been recalled to custody as, after release in July 2015 on licence, he committed a burglary in August 2015 and was sentenced to a term of imprisonment of 4½ years.

99.

The facts are as follows: i)

On the evening of 13 September 2005 the complainant, a female customer at Tesco in Redditch, went to the cash machine, intending to withdraw £20. As she stood at the machine, Gittens approached her from behind and put one arm around her neck and the other around her waist.

ii)

He told her to get her money out; he said she should take out all her money, he mentioned £200 or £250. He said, ‘No one’s going to fucking help you’, so

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she did as she was told and withdrew another £200, which he snatched and ran off. iii)

He was later arrested after the CCTV footage had been studied and an image of the robber had been publicised locally. He was later identified by the complainant but he denied his guilt and, as we have said, he was only convicted after a trial.

100.

He was at the time aged 30. He had two convictions for robbery as a juvenile, neither of which is relevant for present purposes. More importantly, in 2002, he was sentenced to five years’ imprisonment for robbery. He had entered a general store, armed with a screwdriver and a crowbar with which to threaten staff and demanded that they open the safe. He made off with a number of bottles of spirits. He had many convictions for offences of dishonesty but no other offence for violence, although he had three convictions for possessing an offensive weapon. There was no pre-sentence report.

101.

The court log indicates that counsel then representing Gittens accepted that he fulfilled the criteria of dangerousness. That is hardly surprising given the then statutory assumption and the circumstances of the offence. Counsel’s submissions at the time were focussed on persuading the judge to pass a sentence of IPP rather than a sentence of life imprisonment, as those were the only two sentences then open to the judge where an offender was dangerous. Mr Banks, on behalf of Gittens, attempted to ascertain the circumstances from counsel who then represented Gittens in accordance with the principles set out in McCook. He had no independent recollection of the circumstances and, as we have said, the advice he gave at the time cannot be found.

102.

The judge had heard the trial and was well placed to assess Gittens’ criminality. He found that he had deliberately targeted a woman at a cash point, having been on a reconnaissance the day before. He was armed with a knife and threatened to use it. When his victim gave evidence she was, as he put it, ‘a gibbering wreck’, so it was clear that the offence had had a serious impact upon her.

103.

The judge recited his previous convictions for robbery and, no doubt having in mind that there were no submissions to the contrary, concluded that he met the criteria of dangerousness under the CJA 2003, and therefore he said that his public duty required him to pass a sentence of IPP and he did so.

104.

It was submitted to us on Gittens’ behalf that the judge should have ordered a presentence report. But the court is entitled to waive the requirement for a pre-sentence report if it is unnecessary to have one. The practice of the time was frequently to sentence without a pre-sentence report after a trial. In any event, a failure to obtain a pre-sentence report is not a free-standing ground of appeal against sentence and on the facts of this case could have made no difference.

105.

Complaint was also made that the judge’s sentencing remarks did not fully explain how he had concluded that the criteria of dangerousness were met and indeed why it was that a sentence of IPP should be passed. Modern sentencing practice would be to examine such issues in rather more detail, but the judge no doubt very much had in mind the concession by counsel that the appropriate statutory criteria were fulfilled and that a sentence of IPP was inevitable.

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106.

We have nonetheless considered the matter fully. This was a case to which the statutory assumption applied because Gittens had a previous conviction for a specified offence, namely robbery, and it was a serious robbery, as we have already set out. So not long after his release from serving the sentence for that robbery, which was committed when armed with a screwdriver and a crowbar, he approached the woman in the offence before the court and robbed her at knifepoint. Maybe no injury was in fact caused, because the victim complied with the request made to her but it may have been very different if the victim had not complied with his request.

107.

Mr Banks on behalf of Gittens pointed out that the judge was not directed to paragraph 36 in R v Lang, where the then Vice-President, Rose LJ, made clear that not all robbers necessarily presented a substantial risk of causing serious harm. Mr Banks stressed that Gittens had not in fact caused any serious injury, but that, no doubt, was because the victims had complied with his demands. In our judgement, at the time of sentence, as trial counsel then conceded, Gittens plainly presented a substantial risk of committing a further specified offence and of causing serious harm to the public; accordingly, we conclude that the judge was quite right in imposing a sentence of IPP.

108.

In our judgement, the sentence as passed was entirely in accordance with the law as it was prior to the amendments made in 2008. There are no arguable grounds of appeal against the sentence passed in this case and the application to extend the time is refused.

(6)

Joseph Steven Powney Note: The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. No reports of these proceedings should include any particulars likely to lead to the identification of the victim.

109.

On 29 June 2007 in the Crown Court at Oxford, following his earlier plea of guilty to an offence of rape, Powney, then aged 16, was sentenced by HH Judge Hall to IPP, with a minimum term of specified of three years, less the time already served, predicated upon an appropriate determinate term of six years.

110.

He renews his application for an extension of time for leave to appeal against sentence (of nearly 7½ years) following refusal by the single judge of this application. Powney did not seek leave to appeal at the time; it is not clear why this was so, because those representing him in the application to us could not obtain any information, despite enquiries. He remains in custody.

111.

The facts are as follows: i)

On 17 March 2007, at about 10:30 at night, the complainant, a slightly built 34-year-old woman, took her dog for a walk in a public park in Bicester; it was a dimly lit area with paths passing through dense undergrowth. She heard footsteps behind her. Powney, who was only 16 at the time, approached; he asked her for the time. He then grabbed her anorak and pulled her towards him, saying that he had a knife. At first, she fought back; she hit him with her dog lead. She shouted for help. People living nearby heard the commotion. He screamed at her to shut up, saying again that he had a knife and he was going to stab her. She tried to break free but he was taller and stronger than

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she was and he overpowered her. He dragged her into the undergrowth. He told her not to run, or he would cut her from ear to ear, and even that he would cut her throat. During the struggle she grabbed his knife and she cut her hand. ii)

She decided it would be foolish to resist him further and she submitted. He forced her to kiss him. He made her touch his penis. He sat on the floor with his trousers around his thighs. He made her masturbate him. He made her perform oral sex on him. He made her straddle him. He then had full penetrative sexual intercourse with her. He did not wear a condom and he ejaculated. He then demanded her money and phone but she had neither and he ran off.

iii)

She made her way to the nearby road, and sought refuge from a passing taxi driver.

iv)

The police were called. Powney was arrested because the police had earlier received reports that he was drunk and acting strangely.

v)

Whilst he was being taken to the police station, he dropped a penknife on the floor of the police car; presumably this was the knife he used in the commission of the offence.

vi)

The victim was medically examined. She had sustained bruising and soreness to her knees and left ankle, scratch marks to the side of her body, a small cut to her left hand and three small cuts to her right hand where she had grabbed the knife.

vii)

Although the Powney’s DNA was found in semen swabs taken from the complainant, he made no comment and certainly no admission during interview.

viii)

There was a moving Victim Personal Statement which spells out the anguish and distress that the complainant suffered following this attack upon her.

112.

Although Powney was 16 at the time, he had many previous convictions for general anti-social offending such as criminal damage, theft and vehicle taking and minor violence including assaults on constables, common assaults and batteries and for breaches of an Anti Social Behaviour Order. He had no convictions for sexual offences.

113.

The pre-sentence report attributed his extensive offending to a lack of boundaries set at home, to bad peer influence, to substance misuse and his lack of maturity. The writer considered that the nature of the offence, and its unpredictable nature, indicated a high risk of harm to the public.

114.

There was also a psychiatric report which suggested that without intervention Powney would pose a high risk of re-offending. The writer noted that he had been exposed to high levels of domestic violence and as a result was highly impulsive, lacking personal boundaries, immature, angry and oppositional. He was a damaged young person and would require intensive intervention to avoid a life of incarceration and a fully developed Anti-Social Personality Disorder. He was currently amenable to

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treatment. The writer thought that opportunity might be lost if he was given an indeterminate or extended sentence. 115.

The judge said that what Powney had done was, as he put it, a perfectly dreadful offence. A woman walking her dog at night was dragged into a bush, threatened at knifepoint and raped, leaving her life shattered. He said that although he was only 16, Powney had been raised in a household of domestic violence and was damaged as a result. He observed that he had been in and out of the criminal justice system since the age of 12, admittedly for relatively minor offences usually involving violence. He identified the serious elements of the instant offence: this was a stranger rape, at night, he ejaculated in his victim, he used a knife and there was more than one type of sexual activity. We might add the very serious adverse effect upon the victim. The judge therefore concluded that Powney posed a significant risk to members of the public of serious harm.

116.

The judge said that had he been over 21, the sentence would have been 11 years’ imprisonment. He reduced that to nine years, on account of his youth. He reduced the nine years to six years, to take account of the plea of guilty. He halved that and deducted the days spent in custody to reach the minimum term.

117.

It was submitted to us that the sentence was manifestly excessive in that: the judge erred in finding Powney dangerous within the meaning set out in s.226 of the CJA 2003; that he failed to give any consideration to the factors set out in R v Lang, most particularly (but not confined to) those in respect of young offenders as set out in paragraph 17 of the judgment Further and alternatively, the judge failed to address the consideration set out in section 226 (3) of the CJA 2003 in respect of young offenders: whether an extended sentence of detention would be sufficient to protect the public from serious harm as, in contradistinction to adults, the judge had this option.

118.

We reject those grounds entirely. This was indeed a dreadful offence, Powney plainly presented a substantial risk of committing a further specified offence which might cause serious harm to the public. That he was 16 did not lessen the risk since no one could say when the risk would have passed. Accordingly, the judge was quite right to pass a sentence of IPP; he would have been failing in his duty to apply the law as set out in the CJA 2003 if he did not do so.

119.

Accordingly, the application is bound to fail and we refuse to extend time for appealing.

(7)

Nigel Darren Garbutt

120.

On 11 July 2006, after Garbutt, then aged 27, had changed his plea to guilty to an offence of robbery, as charged in Count 1, he was sentenced by Mr Recorder Jackson QC at the Crown Court at Sheffield to IPP under s.225 of the CJA 2003; the following day, the Recorder specified the minimum term as 3 years, less the 26 days spent on remand.

121.

Garbutt seeks an extension of time of nearly 8½ years in which to apply for leave to appeal against sentence. Advice was given at the time as to an appeal against sentence. No application was made. Those representing him at the time of his

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sentence cannot assist further. He remains in custody; the Parole Board refused his release on 29 June 2015. 122.

The facts are as follows: i)

In the early hours of 7 January 2006 Garbutt, assuming a false name, called for a taxi from a public telephone box at Queen’s Corner in Maltby, Rotherham, Shortly afterwards, the complainant, Mr Ahmed, responding to the call, collected Garbutt, who gave that false name. Mr Ahmed took him to Eastwood, as he requested.

ii)

When they reached the destination, Garbutt would not pay the fare; instead he pulled a long bladed kitchen knife and demanded Mr Ahmed’s takings, which amounted to £115 odd. At first Mr Ahmed refused to hand over the money but Garbutt then prodded him twice with the point of the knife and Mr Ahmed then handed the money over. Garbutt ran off.

iii)

He was traced after police examined the CCTV footage from the call box. He was arrested on 24 January 2006. In interview he admitted that he was in Maltby that night but denied any knowledge of the offence. Later however, he pleaded guilty, as we have said.

123.

Garbutt had a bad record for violence (and indeed for dishonesty). As a juvenile, he had been convicted of robbery. In 2002 he had been sentenced to 4½ years for a robbery, in which he had attacked a man with a pointed stick in an attempt to rob him; that same day he had ‘glassed’ another man, causing the victim deep cuts and wounds to his head. In 2005, he was sentenced to 16 months for an assault on a woman, causing her to sustain a broken nose and a black eye; he had been released from this sentence only a few days before committing the instant offence and was therefore on licence. As the judge pointed out, he had previously committed no less than ten specified offences (being robbery, attempted robbery, affray, unlawful wounding, assault with intent to resist arrest, and five assaults occasioning actual bodily harm).

124.

The judge considered the facts of the offence. It had been committed while Garbutt was on licence; furthermore, it was a planned offence for which Garbutt had armed himself with a knife before luring the taxi driver to pick him up with the intention of robbing him. He observed, quite rightly, that taxi drivers are to be protected by the courts because they are providing a public service, often during the night, and as such are vulnerable to attack by criminals such as Garbutt, although that feature goes to the length of the notional determinate term rather then to the risk he presents.

125.

The judge concluded, from all these offences and from the facts of the instant case, that he had a propensity to use violence and to cause serious harm, accordingly he was satisfied that Garbutt fulfilled the criteria of dangerousness as defined by the CJA 2003; accordingly, he passed a sentence of IPP.

126.

He fixed the notional determinate term at 7 years. He gave a year’s discount for the late plea; one half of that resulted in a minimum term of 3 years, less the time served.

127.

It was argued before us, many years later, on his behalf that it was unreasonable to conclude that Garbutt was dangerous. That, as we have pointed out, was not the

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relevant test; because Garbutt had previously committed a serious specified offence, in fact, many serious specified offences; the judge was therefore required to assume that he was dangerous, unless it was unreasonable to make this assumption. There were, in our judgement, a number of relevant factors, which justified - indeed, they required - the assumption to be applied. We refer to: the nature of the instant offence; the large number of previous specified offences which he had committed, including a robbery for which he had received a sentence of 4½ years, and an offence of glassing, and another unpleasant assault in which he had broken someone’s nose, from which sentence he had been released only a few days beforehand. In our judgement, he plainly presented a substantial risk of causing serious harm by reason of the commission of a further specified offence; the sentence of IPP was inevitable. Accordingly the application for leave to appeal against sentence out of time is refused. (8)

Jason William Warwick

128.

In October 2006 Warwick, then aged 37, pleaded guilty at the Crown Court at Cambridge to an offence of manslaughter committed in February 2006. On 7 February 2007 he was sentenced by HH Judge Worsley QC to IPP with a minimum term to be served of 18 months less time spent on remand. He was represented by leading counsel who advised that there were no grounds for appeal against the sentence.

129.

He applies for an extension of time of over 7 years in which to apply for leave to appeal against the sentence. His applications have been referred to the Full Court by the Registrar. He is in custody; he was moved to open conditions, but in April 2013 absconded. He was returned to custody, sentenced to 8 months imprisonment for unlawful escape and held in a closed prison. A prison report prepared for us recorded the following: “Warwick’s poor attitude and behaviour reflects his frustration at his continued incarceration and in many respects is his own worst enemy. Intellectually he may have completed offending behaviour work but apparently chooses when and when not to put learning skills into practice. It is also reasonable to conclude that Warwick lacks the necessary cognitive abilities. Consequently his behaviour is unpredictable and those working with him are unable to accurately assess his risk at any given time. Warwick is desperate to be released but his attitude and behaviour towards staff is worrying and impacts professionals assessing risk and suitability for release.”

130.

The facts of the offence were as follows: i)

In the early hours of 21 February 2006 Warwick attacked a man named Nleya in an area of open parkland in Cambridge. Warwick punched Nleya very hard to the face causing damage to the teeth. The force of the blow was sufficient to fell Nleya who suffered a severe brain injury as a result.

ii)

Warwick left Nleya lying on the ground which is where a passer-by on his way to work found him the next morning. Nleya was still alive but he was

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suffering from hypothermia as well as the effects of the brain injury. He died in hospital later the same day. iii)

The attack on Nleya was planned and premeditated in that Warwick was angry with Nleya for telling Warwick’s then girlfriend that Warwick had been seeing another woman. As a consequence the girlfriend had broken off her relationship with Warwick.

iv)

During the evening prior to the attack Warwick had sent a series of abusive and threatening text messages to Nleya. He then had gone out into Cambridge intending to find Nleya. He later told a friend that he in fact had encountered Nleya by chance at the scene of the attack. He told that friend that he had given Nleya “a good hiding”.

131.

Warwick had an offending history. He had convictions for specified violent offences - assault occasioning actual bodily harm in 1989 and 1992 and for affray in 1995 together with convictions for lesser and non-specified offences of violence in 1997, 1998 and 2001. In 1995, 1998 and 2001 the disposal had been by way of a hospital order. The 2001 order was made subject to a restriction order.

132.

The sentencing judge had reports from three separate consultant psychiatrists, each of whom concluded that Warwick suffered periodically from mental illness. There was some dispute as to the nature of the illness but not a dispute of any significance to the sentencing process. Dr Tim McInerny concluded that there was a future risk to the public of harm due to violent behaviour in the event of Warwick suffering a relapse in his mental state and/or in the event of his using illicit substances and/or alcohol. Professor Coid, instructed on behalf of Warwick, took a similar view. He stated that Warwick’s risk of future offending was closely linked to his mental state and to his consumption of alcohol and/or drugs. Dr Shetty aligned the risk to the public with non-compliance by Warwick with his medication regime.

133.

The judge in detailed and careful sentencing remarks concluded that Warwick’s mental condition would deteriorate were he to abuse drink or drugs or to fail to take his medication. Those features were commonplace throughout his history. In the event of deterioration the judge concluded that Warwick would present a real and significant risk of harm to the public. The judge set out the test of dangerousness as defined by the CJA 2003 and found that it had been satisfied. He concluded that an indeterminate sentence was required for the protection of the public. The judge did not purport to rely on the assumption in Section 229(3) of the CJA 2003 which in the light of his offending was applicable.

134.

Warwick seeks in this application to rely on the evidence of another psychiatrist, Dr Shapero. There is no application to rely on fresh evidence. We have considered the evidence de bene esse. In essence Dr Shapero concluded that Warwick was not suffering from a mental illness at the time that he committed the offence. He argued that the offence was not due to a relapse in his mental state whether by reason of a failure to take his medication or otherwise. Rather, his conclusion was that the offence in 2006 was caused by the consumption of alcohol and drugs. Dr Shapero stated that in consequence the judge should not have taken into account the issues of mental illness and failure to take medication when deciding whether Warwick was dangerous.

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135.

Leaving aside whether Dr Shapero’s evidence is admissible and relevant, his opinion fails to deal with the point with which the judge had to grapple, namely the future risk presented by Warwick. The detailed rehearsal by the judge of his psychiatric history demonstrated that his mental state was plainly of relevance to the issue of future risk, irrespective of whether he was mentally ill at the time of the offence. In any event the judge identified the use of alcohol and/or drugs as relevant to the future risk. It is not necessary to lengthen this judgment with a detailed consideration of the evidence of Dr Shapero and the extent to which he engaged in criticism of the judge’s assessment of dangerousness. Insofar as he did so, Dr Shapero’s evidence falls into the category of