In the Upper Tribunal case above the Secretary of State for the Home Department (SSHD) appealed against two decisions of the First-tier Tribunal (FTT) where the FTTs in their respective determinations “remitted” both cases to the SSHD to rectify what was described by one of the FTTs as a “defective notice”. This is certainly not the most favourable outcome in the FTT for our clients as the Tribunal in recent months have allowed many appeals in similar cases following Ahmadi, but in vain as almost every determination of the FTT was challenged by the SSHD and many appeals are still pending.
The appeal was heard on 8 October 2012 before Mr C M G Ockelton, Vice President and the Upper Tribunal Judge Hanson and the determination was promulgated on 1 November 2012. There were indications of such outcome after Patel and others v SSHD  EWCA Civ 741 was decided by the Court. The Upper Tribunal in Adamally and Jaferi (section 47 removal decisions: Tribunal Procedures)  UKUT 00414 (IAC), has made it very clear at the Tribunals’ level how many of our clients who had very thin substantive grounds in their appeals (against combined decisions refusing leave to remain and removal under s47 of the 2006 Act), but relied on the unlawfulness of the SSHD decision for the unlawfulness of the s47 combined decision after Ahmadi, will be treated.
Mrs Adamally, a Sri Lankan national, came to the United Kingdom on 29 October 2008 as a dependent spouse of a Tier 4 Student, valid from 28 October 2008 to 28 October 2011. On 19 October 2011 she applied for leave to remain in the UK. She was refused, and at the same time as the refusal the SSHD purported to make a decision under s 47 that she should be removed. She appealed in the FTT who following Ahmadi, decided that the removal decision was unlawful. FTT however purported to determine the whole appeal by “remitting” the decision to the SSHD to rectify the defective notice. FTT made no enquiry into, or decision on, the merits of the refusal to vary leave.
Mr Jaferi, a Pakistani national, entered the United Kingdom on 22 November 2002 as a student. There were further extensions, and his final leave was as a work permit holder, until 27 March 2011. On 16 March 2011 he applied for indefinite leave to remain on the basis of his work permit employment. His application was refused, and at the same time the SSHD purported to decide that he should be removed by way of directions under s 47.He appealed to the FTT who again followed Ahmadi and decided that the decision under s 47 could not stand. No enquiry was made into the merits of the decision refusing leave, but, the decision was “remitted” to the SSHD to rectify what was described as a defective notice.
Legislative provisions referred
Section 3C and 3D of the Immigration Act 1971 and the regulations made under s 3C(6) namely the Immigration (Continuation of Leave) (Notices) Regulations 2006 (SI 2170/2006) read with the Immigration (Notices) Regulations 2003 (SI 658/2003). Section 47 of the Immigration, Asylum and Nationality Act 2006 and S82, s85 and s86 of the Nationality, Immigration and Asylum Act 2002.
Background case law
The Upper Tribunal in this case proceeded on the basis that the Court of Appeal in Patel and others v SSHD  EWCA Civ 741 followed Lamichhane v SSHD  EWCA Civ 260 in preference to Mirza v SSHD  EWCA Civ 159, and Sapkota v SSHD  and on the basis of its own decision in Ahmadi v SSHD  UKUT 147. The Upper Tribunal once again defended its interpretation of s47 of the 2006 Act in Ahmadi v SSHD  UKUT 147 (which is subject to further appeal) observing that the interpretation does not produce any absurdity and it is not impossible for a s 47 decision to be made within the period specified within s 47.
Discussion and Determination
The Upper Tribunal did not accept Mr Malik’s argument for Mrs Adamally that the statute required that appeal to be either allowed or dismissed as a whole. Mr Malik pointed out that sub-s (3) of s 86 precedes sub-s (5), and argued that the effect was that if there was any ground for allowing the appeal, it fell to be allowed: only if there were no grounds for allowing the appeal should it be dismissed. The Tribunal took the view that they see nothing in the wording of s 86 which prevents a judge from disposing of the appeal by deciding that in so far as the appeal before him is against a decision made purportedly under s 47 it is allowed, but in so far as the appeal relates to a decision refusing variation of leave, it is dismissed. The Tribunal explained its reasons for taking this view on the above Section in paragraph 24 of the determination. The Tribunal held that to dispose of the appeal in such a way as to suggest to the SSHD that a new removal decision ought to be made is quite wrong.
The Tribunal in the end held that both the First-tier Tribunal judges erred in law by failing to appreciate the need to determine the appeal in so far as it related to each of the included decisions and remitted both cases to the First-tier Tribunal with the directions. For Mr Jaferi’s case the Upper Tribunal directed the FTT to allow the appeal in so far as it relates to the decision under s 47, and determine the grounds of appeal raised in relation to the refusal to vary Mr Jaferi’s leave, and decide whether the appeal falls to be allowed or dismissed in so far as it relates to that decision.
For Mrs Adamally’s case the Upper Tribunal directed the FTT to allow the appeal in so far as it relates to the decision under s 47, and to determine the grounds of appeal raised in relation to the refusal of vary Mrs Adamally’s leave, and to decide whether the appeal falls to be allowed or dismissed in so far as it relates to that decision.