By James Packer
Those who deal regularly with the UK Border Agency will sadly be accustomed to receiving unfair decisions, which can have a devastating impact upon the lives of their clients, no matter how blameless they may be. Sometimes UKBA act in a manner that is designed to avoid an appeal against the decision until the applicant has returned overseas. What remedies are available in these circumstances?
The Court of Appeal has considered these questions in an important judgment: Anwar and Others V Secretary of State for the Home Department  EWCA Civ 1275. Duncan Lewis acted for the second Appellant of three. This article considers the implications for appeals to the Tribunal and other remedies.
In two of the cases the Appellants were foreign national students; fee- payers who effectively subsidise higher education for British students. In both cases they were initially studying at Colleges that were 'approved' by UKBA – i.e. on the register of training and education providers (which is now a requirement for leave as a student). In both cases the colleges which they attended were later removed from the register, and they commenced studies at other colleges in consequence. In both cases the UKBA later took a decision to remove them from the UK on the basis that they had obtained their leave to remain in the UK by deception.
It should be noted that in the case of Ms. Pengeyo she had herself contacted UKBA for advice and had been advised to find a new college, while Mr. Anwar had become dissatisfied with his college and left it before it was even removed from the register. Both appealed the decision to remove them from the UK and, unsurprisingly perhaps in both cases the Immigration Judges separately found that 'Ms Pengeyo had been guilty of no deception at all' and that there was no basis for the allegation against Mr Anwar either.
In both cases the argument in later tribunal proceedings, and again in the Court of Appeal, turned on the question of jurisdiction. The Secretary of State argued that the setting of removal directions was an immigration decision that could only be appealed out-of-country. In both cases the Immigration Judge at first instance had rejected that submission, but in each case that decision had been overturned in later proceedings in the Tribunal. In both cases the initial Immigration Judge had relied upon a decision CD (India)  UKAIT 00055 that essentially treated the setting of removal directions against a person with leave as a curtailment of that leave (and therefore appealable in-country), whereas later it was realised that subsequent authority Saleh  EWHC 3196 Admin had held otherwise, and the appeals had been dismissed for want of jurisdiction.
The Court of Appeal first clarified that an apparent bar to an appeal is no bar to the lodging of the appeal. The Court pointed out that to hold otherwise would not allow for consideration as to whether the bar actually exists – e.g. if there is a dispute about whether the Appellant is truly outside of the country.
In a second step of equal importance the Court of Appeal held that the lack of jurisdiction must be specifically pleaded and drew an analogy with a failure on the part of a Defendant to take a limitation point in tort proceedings:
Any apparently absolute bar to justice has to be scrutinised very carefully. The one contained in the 2002 Act is not of the kind which operates independently of the will of either party so as to bind the tribunal regardless. It offers a point which can be but need not be taken. In the present two cases, it was taken. (para 23)
The Court was careful to underline however that this only arises where the tribunal would have had jurisdiction, but for the limitation. A failure to take a point cannot give a Court jurisdiction to decide a point that lies entirely outside its limits. Thus the third appellant, who was attempting to appeal a decision that did not give rise to a right of appeal at all, was unsuccessful.
Thirdly, the Court of Appeal emphasised that, in the case of Mr. Anawr, as he had pleaded his case under article 8 as well as under the immigration rules, there was jurisdiction to hear his appeal in-country in any event on that ground, and that had the tribunal gone on to do so:
'the injustice of the decision that he had been guilty of deception – injustice both in the way it was reached and in the absence of any evidence to support it – [would almost inevitably] have weighed decisively in the scales if and when the proportionality of removal came to be decided.' (para 16)
Duncan Lewis had conduct of this case from the Court of Appeal stage. It was swiftly realised that, despite apparent injustice, the appeal could fail on the jurisdiction point. We therefore lodged protective proceedings in the Administrative Court. Sedley LJ commented:
In the judicial review proceedings brought by Ms
Pengeyo ... a challenge was made to the decision of the Home Secretary to use the deception route, enabling her effectively to stifle any appeal, rather than the variation route carrying a right of in-country appeal. Judge Thornton QC, rightly in my judgment, granted permission to argue this. Had it been sought, permission would also have properly been granted to argue that the election of the Home Office, having used the deception route, to take the out-of-country point in order to stifle an appeal was a serious abuse of power. Once it is established that the point is good only when taken, to take it in order to prevent the exposure of a shameful decision – the effective criminalising and enforced removal of an innocent person without either worthwhile evidence or the opportunity to answer – is without doubt justiciable by way of judicial review. (para 24)
There will be many applicants and representatives heartened by this resounding support for these challenges as not all unfair decisions are appealable. This is all the more serious given the quality of decision making by the UKBA – as specifically underlined by the Court of Appeal:
'... it is right to flag up a concern which all the members of the court share that, on the evidence before us, the powers of one of the great offices of state appear to have been so misused as to rob the successive administrative decisions of legal authority. We wish this to be brought to the Home Secretary's attention.' (para 25)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.