Immigration law update
Recent decisions in the Supreme Court have highlighted the needless complexity of the immigration appeals system, says Kathryn Bradbury
On 20 November, the Supreme Court handed down its judgment in Patel and others v SSHD; Anwar v SSHD and Alam v SSHD [2013] UKSC 72, in which it reviewed the jurisdiction of the First-tier Tribunal (FTT) to take account of evidence and grounds of appeal that had not been raised before the Secretary of State.
It approved the Court of Appeal’s judgment in AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076, [2011] 1 WLR 385, in which the majority had held that an appeal to the FTT covers not only any ground before the Secretary of State when she made the decision under appeal but also any grounds raised in response to a one-stop notice issued under s120 of the 2002 Act, even if they had not been the subject of any decision by the Secretary of State and did not relate to the decision under appeal. However, the Supreme Court firmly rejected the concept of a “near-miss” principle in article 8 appeals.
The court also held that it was not unlawful for the Secretary of State to decline to serve removal directions at the same time as refusing an application to vary leave to remain.
Aside from its substantive conclusions, the judgment highlights the needless complexity that has infected the entire immigration appellate system due to the endless introduction of new and amending legislation over the last two decades. As Lord Carnwath put it, quoting the Master of the Rolls below, the law in this field is “an impenetrable jungle of intertwined statutory provisions and judicial decisions”, although he considered that on this occasion “the judiciary must share some of the blame”.
Points-based system
In the cases of Anwar and Alam, both appellants had made applications for leave to remain as Tier 4 students. Both applications were refused because they had not produced the documentation required by the immigration rules and guidance. Both appealed and produced the relevant documentation before the tribunal.
The difficulty in adducing such evidence before the tribunal in points-based system appeals is that s85A(4)(a) of the Nationality, Immigration and Asylum Act 2002 prevents the tribunal from considering any evidence produced by an appellant unless it “was submitted in support of, and at the time of making, the application to which the immigration decision related”. However, the tribunal is entitled under s85(4)(a)(b) to take into account evidence if it relates to the appeal in so far as it relies on, inter alia, human rights grounds.
The upper tribunal overturned this decision, reasoning that his article 8 rights were not strong enough to require a departure from the rules. His appeal to the Court of Appeal was rejected. In Anwar’s case, his FTT appeal was allowed as it was found that he had sent the document with his application but this finding was overturned by the FTT.
By the time the appeals came to be heard by the Supreme Court, the issues had essentially narrowed to: (1) whether the conclusion of the majority in Afghanistan (AS) was correct regarding the ability of the tribunal to consider grounds raised for the first time in response to an s120 notice; and (2) the materiality in human rights cases of evidence that an appellant could in fact have complied with the rules, even though he failed to do so.
Poor legislation drafts
In deciding the first issue, Lord Carnwath, giving the leading judgment, identified the primary problem as being the poor drafting of the relevant legislation, which it described as “not only obscure in places and lacking in detail, but contains pointers in both directions”. After considering the arguments in depth, the court ultimately agreed with the approach of the majority in AS. It pointed to the existence of the s120 notice as a strong indication that it was intended that grounds raised in response to it would be considered at an appeal. The second question that then arose was whether the evidence adduced by the appellants was material to their article 8 case.
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