Chapter 8

8.2 Asylum and Immigration Tribunal

Following the consultation paper; ‘Immigration Appeals: Fair Decisions; Faster Justice’ (produced not by the Ministry of Justice but by the Home Office) the AIT will transfer (back) into a two tier system within the new Tribunals Service which is in place for other tribunals following the Leggatt review and the Tribunals, Courts and Enforcement Act 2007
www.tribunals.gov.uk/Tribunals/Documents/Releases/Final0509PNBPPW.pdf

Section 54 of the Borders, Citizenship and Immigration Act removes the statutory bar in the Tribunals, Courts and Enforcement Act 2007 s. 19 on transferring judicial review applications challenging an immigration or nationality decision to the Upper Tribunal.

8.2.1 Challenging decisions of the AIT

The Court of Appeal decision in R (on application of AM (Cameroon)) v AIT and SSHD (interested party) that is discussed in this section of the textbook was a decision giving permission to appeal to that court. The substantive hearing on 20th February 2008 was decided on the basis of natural justice and is discussed below.

8.3 Special Immigration Appeals Commission

The House of Lords in RB (Algeria) v SSHD; OO (Jordan) v SSHD [2009] UKHL 10 held that decisions of SIAC could only be challenged in the Court of Appeal on point of law, and that an assessment of the effectiveness of memoranda of understanding as a protection against torture was a question of fact, not law, unless SIAC’s conclusions were clearly not warranted by the evidence.

8.4.1 Not in accordance with the Immigration Rules

MO has been heard in the Court of Appeal as Odelola v SSHD [2008] EWCA Civ 308. The appellant argued that the immigration rules were subordinate legislation within the terms of the Interpretation Act 1978 and so subject to s.16(1)(c) of that Act:

where an Act repeals an enactment, the repeal does not, unless the contrary intention appears…..affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment

If Ms Odelola could be argued then to have acquired a right under the immigration rules, that would not be taken away by a change in the rules, if s.16(1)(c) applied to them. The court held that the immigration rules were not subordinate legislation and no such right accrued. She could not by this means establish an obligation on the Home Office to apply the rules to her that were in force at the date of her application. The House of Lords confirmed that the immigration rules were not subordinate legislation, and no right accrued to her under them (Odelola v SSHD [2009] UKHL 25). The Secretary of State was free to change the terms of the rules under which applicants were admitted.

8.4.3.1 The jurisdiction of appeal bodies in human rights cases

Though the jurisdiction of appeal bodies was not directly in issue in Chikwamba v SHD [2008] UKHL 40, the judgment nevertheless builds directly on Huang and Kashmiri. Lord Brown makes some points about Mahmood which help to put that case in perspective:

Mahmood was the first case in which the Court expressed the view that only exceptionally should an applicant for leave to remain be able to escape the requirement under the rules for entry clearance to be obtained abroad by having his substantive application to remain—whether under the rules or under article 8—determined here… Various features of the case should be noted. First, the decision to refuse leave to remain predated the coming into force of the Human Rights Act, although the Secretary of State said that he had taken article 8 into account... Secondly, the challenge was by way of judicial review, not statutory appeal. Thirdly, it appears to have been assumed that the immigration rules…themselves struck a justified and proportionate balance under article 8 except in wholly exceptional cases (a view which persisted until the House's decision in Huang) (para 27).

In EB (Kosovo) v SSHD [2008] UKHL 41 in a judgment given on the same day as Chikwamba, the House of Lords reiterated their main points in Huang:

The jurisdiction to decide on an Article 8 claim is that of the immigration judge, it is not a reviewing function entailing deference to the Secretary of State
An Article 8 claim is not required to be exceptional in order to succeed
Family life is a crucial human experience and value
The imperatives of immigration control should be treated as an important matter to weigh against the right to respect for family life
The decision as to how to weigh up these matters cannot be reduced to a formula; it is a difficult judgment which must be exercised.

8.5.1 Natural justice of fairness

In R (on application of AM (Cameroon)) v AIT and SSHD (interested party) [2008] EWCA Civ 100 the Court of Appeal decided that this was a rare situation where a challenge to an interlocutory decision was appropriately brought by way of judicial review. The issues of natural justice that were raised could only be decided in that forum. The appellant’s allegations raised the question of whether the immigration judge should have continued to hear the case, and there needed to be a process that could wipe that hearing and decision from the slate. The judge had been wrong to refuse to hear the telephonic evidence and the Court set aside that decision and the decision on the appeal.

In Obienna v SSHD [2008] EWHC (Admin) 1476 the claimant applied, through his solicitor, on 1st February 2005, for indefinite leave to remain on the basis of long residence. On 17th February he received an unsigned standard reply which said that the Home Office aimed to complete postal applications within 3 weeks of receipt, and normally completed more complex cases within 13 weeks at most. There was no need to contact them to check progress.

Over a year later, on 25 May 2006, the Claimant's solicitors wrote enquiring about the progress of the application. The Home Office did not reply. On 28 November 2006 the Claimant's solicitors wrote again, but again, there was no reply. On 17 April 2007, the Claimant's solicitors wrote a letter before claim, stating that the Claimant had a legitimate expectation that his application would be dealt within the time mentioned in the 17 February 2005 letter. There was no response. On 21 May 2007 the Claimant's solicitors copied their letter of 17 April 2007 letter to the Defendant's Judicial Review Unit by recorded delivery. There was no response, and proceedings were issued.

The High Court said that the ‘aim’ to deal with applications within three weeks and more complex cases ‘normally’ within 13 weeks did not amount to a representation which would found a legitimate expectation, but the lack of a system to deal with the backlog of cases was unlawful. From May 2007 until December 2007, a system was in place, but it operated in a way which was conspicuously unfair because all resources were devoted to new intake and expedited cases. Since December 2007 there had been a system for dealing with the backlog in chronological order. Provided that was sufficiently resourced so as to avoid excessive delays, this was likely to be fair and consistent; and, in any event, not unlawful.

The failure by Government to acknowledge letters which ask relevant questions about matters of importance to the writer was a serious failure in public administration. It should be possible, if only in broad terms, to tell an applicant how long their application may take and to provide the name of someone who can act as a point of contact. In the absence of this, it may be open to question whether the policy is being applied fairly and consistently.

8.5.3 Legitimate expectation

In R (on the application of HSMP Forum Ltd) v SSHD [2008] EWHC 664 (Admin) the changes to the HSMP were litigated on a similar basis to that in AA, except in judicial review rather than an appeal to the tribunal. The court found that the HSMP was a single integrated programme, and migrants on the HSMP had a legitimate expectation that once they had gained leave to enter, the terms of the scheme would remain as they had been when they gained leave. It was accordingly an unlawful breach of that expectation to change the terms of the scheme for applications for extension. Applying changes to migrants who already had leave under the programme was conspicuous unfairness and an abuse of power.

The government a published a policy document on 9th July 2008 explaining how different groups would be treated in order to comply with the 2008 judgment. In R on the application of HSMP Forum (UK)Ltd v SSHD [2009] EWHC 711 this policy was held to be unlawful insofar as it purported to apply the five year requirement for ILR to highly skilled migrants granted entry on the earlier form of the scheme when settlement was acquired after four years on the programme.
See below for BAPIO Action.

The Queen on the application of S,H & Q v SSHD [2009] EWCA Civ 142 concerned three asylum claimants in all of whose cases the Home Office had delayed in dealing with the application and had made significant administrative errors. The Court held that the facts in Rashid were extreme. It would be rare that even a catalogue of errors such as in these cases would found an expectation of grant of indefinite leave. The Home Office had failed to implement its policies correctly, but the Court held that these failures did not mean that a later application for ILR should be granted.

8.5.5 Failure to consult

The BAPIO case went to the House of Lords solely on the issue of the lawfulness of the Department of Health guidance (R (on the application of BAPIO Action Ltd & another) v SSHD and another [2008] UKHL 27). The House of Lords agreed that it was unlawful, though for a range of reasons. Lords Bingham and Carswell thought that it was unlawful because it purported to exercise the power to determine immigration entitlements, and this was reserved to powers given by the Immigration Act 1971 and rules made under it. These were exercised by the Home Secretary, not the DoH. Lords Mance and Rogers thought that the guidance defeated a legitimate expectation held by migrants on the HSMP scheme that they would not be prohibited by domestic rules from taking work. Lord Scott dissented.

Reading List

Thomas, R. ‘The Immigration Appeals Consultation Paper’ Immigration Law Digest Vol. 14 no.3 Autumn 2008

View print version

Oxford University Press, Online Resource Centre, Chapter 8.