In Rashid Anwar and Prosper Adjo v Secretary of State for the Home Department [2010] EWCA Civ 1275, Mr Anwar was a student who had obtained leave to remain to study at the London School of E-Commerce, at the time an institute recognised as bona fide by the Home Office, as was Ms Pengeyo, a third Appellant whose case was conceded on the eve of the hearing and was not formally decided by the Court of Appeal. In May 2008, the college was removed from the register of training and education providers because it had been found to be issuing bogus qualifications and providing no real training. Rather than varying their leave to remain (which she could have done) which would have given the Appellants an in-country right of appeal, the Secretary of State then made decisions to remove Mr Anwar and Ms Pengeyo from the UK on the basis that they had obtained leave by deception (a criminal offence), despite the fact that Mr Anwar had left the college and joined a more reputable institute prior to its removal from the register and Ms Pengeyo had found a new provider on Home Office advice after the London School of E-Commerce’s closure. By virtue of s92(1) of the Nationality, Immigration and Asylum Act 2002, the decisions did not carry an in-country right of appeal. Nevertheless, both Appellants appealed and succeeded at first instance despite the Home Office’s objections.
The Home Office obtained reconsideration of both decisions and the appeals were then dismissed because they could not be pursued while the appellants were still in the UK by virtue of s92(1).
The Court of Appeal stated that, despite the provisions of s92(1), the immigration judges had had jurisdiction to hear the case, even though the Appellants had not left the UK, up until the point had been taken by the Secretary of State. Once the point was taken, the hearings could no longer proceed. It found that the bar in s92(1) was not one that operated independently of the will of either party to bind the tribunal regardless. It simply provided a point that could, but need not, be taken. As the point had been taken, it dismissed Mr Rashid’s appeal (the decision already having been withdrawn in Ms Pengeyo’s case).
On the face of it, the decision will create some difficulties for Appellants and their advisors. Most Appellants would probably prefer to pursue their appeals from within the UK, particularly if they consider their case is strong. If they succeed in their appeals, then they are able to continue with their lives in the UK without the disruption caused by pursuing their appeals from abroad. The position now, however, is that unless it is expressly stated by the Secretary of State in his decision that there is no in-country right of appeal, then Appellants and their advisors will not be able to predict whether the Secretary of State intends to take the point until the case comes before the First Tier Tribunal. Even then, if the Home Office is unrepresented before the First Tier Tribunal, as sometimes happens, then the appeal may be determined in the Appellant’s favour. It is conceivable that the first time the point would be taken would be upon appeal to the Upper Tribunal. It can be seen therefore that in a case where the point is not taken at an early stage by the Home Office, then there will be uncertainty as to how best to proceed.
Fortunately, the Court of Appeal suggested an alternative in cases like those of Mr Anwar and Ms Pengeyo where there are blatantly inappropriate allegations of deception. Ms Pengeyo had obtained permission from the Administrative Court, rightly in the Court of Appeal’s view, to challenge the Secretary of State’s decision to use the deception route, enabling her effectively to stifle any appeal, rather than the variation route carrying a right of in-country appeal. The Court of Appeal also said that it would have been arguable before the Administrative Court that the election of the Home Office, having used the deception route, to take the out-of-country point in order to stifle the appeal was a serious abuse of power. It appears therefore that the Court of Appeal is suggesting that Appellants in this situation should pursue their appeals in-country and that if any decision is made by the Home Office to take the in-country point, then it should be challenged by way of judicial review.
It is worth noting just how critical the Court of Appeal was about the Home Office’s conduct. It described the decisions to allege deception as ‘shameful’, ‘the effective criminalising and enforced removal of an innocent person without either worthwhile evidence or the opportunity to answer’. It said that the decisions to take the out-of-country point had been made in order to prevent the exposure of these shameful decisions. The judgment was quite clearly intended to send a strong message to the Home Office about its behaviour.
Human rights appeals
In Mr Adjo’s case, he was an overstayer who had been served with a removal decision. His appeal against that application was dismissed and he made a human rights application which was refused by the Secretary of State. He successfully appealed against that decision. The Home Office obtained reconsideration of the appeal and Mr Adjo’s appeal was then dismissed on the ground that he had no right of appeal at all under s82(1) of the 2002 Act.
The Court of Appeal agreed – it found that there was no appealable decision at all before the first instance tribunal. Although there is an in-country right of appeal on human rights grounds under s92(4)(a) of the 2002 Act, it only applies to a human rights claim if there is already an appeal against an immigration decision.
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