In this case the Court of Appeal (Pill, Moses and Sullivan LJJ) heard an appeal in a judicial review case.
The court unanimously reversed Mitting J’s ruling and found that it was appropriate to quash a notice of decision where it failed to inform the recipient of an in-country right of appeal.
Serving notice in accordance with the Immigration (Notices) Regulations 2003 – produced in exercise of the powers conferred on the SSHD by section 105 and 112(1) to (3) of the Nationality, Immigration and Asylum Act 2002 – is mandatory. In this case the court was concerned with the requirement that under regulation 4, the appellant (A) should have been advised whether or not his appeal could have be brought in the UK. The court explained that Parliament considered the issue – whether or not an appeal may be brought in the UK – as important and had therefore “prescribed in primary legislation the kinds of appeal which may be brought while the appellant is in the UK” (at paragraph 19).
A was a Russian national (born in Chechnya) who was granted ILR in mid-2002. In early 2003 A’s wife and children were granted ILR and later in the year he received a ten-year Refugee Convention travel document valid for all countries except Russia and, using this document, he last exited the UK in November 2009. (In autumn of 2009 A’s family were granted British Citizenship – but he wasn’t.)
In May 2010 the SSHD decided that A’s presence in the UK was not conducive to the public good because he presented a threat to national security and thus his ILR and refugee status would be cancelled. In June 2010, a notice of decision – in relation to the cancellation of his ILR and travel document – informing A of his situation was served: it advised him that he had no right of appeal from within the UK but that the decision was appealable from overseas and that he had 28 days to lodge his appeal with the Special Immigration Appeals Commission (SIAC). A lodged his appeal but given the advice contained in the SSHD’s notice, he did not return to the UK.
A was an adviser to Chechen President Ramzan Kadyrov. The substantive case against A was that he played a “significant” role in staging the Chechen dissident Umar Israilov’s assassination. (Israilov was once Kadyrov’s bodyguard but later turned into a fierce critic.) The precise case against A was not revealed to him until late January 2011.
The initial notice sent to A only said that the Security Service thought that he was a threat to the UK. Following a rule 38 hearing – under the Special Immigration Appeals Commission (Procedure) Rules 2003 – the SSHD served a second amended witness statement which claimed that in the Security Service’s assessment Kadyrov, who was responsible for assassinating of a number of his political opponents, maintained a “black list” of people, some of whom were to be assassinated under his command. One of these people, the exiled Prime Minister of Chechnya, Ahkmed Zakayev, was living in the UK as a refugee. He was thought to be on the list. The Security Service thought that Kadyrov was likely to try to target Zakayev and, inevitably, that A would facilitate Zakayev’s targeting as he was in a position to provide “valuable information” and pose “a serious threat to Zakayev’s life” (at paragraph 11).
The impact of SSHD v MK (Tunisia)
On 25th March 2011 the Court of Appeal gave judgment in SSHD v MK (Tunisia)  EWCA Civ 333 and said that a person in A’s position, who was abroad when he was given notice of the SSHD’s decision to cancel his ILR, has his leave to enter the UK extended by section 3D of the Immigration Act 1971 for the period during which he could appeal while in the UK. In A’s case, under the 2003 Regulations, that period was 10 days from service of the notice and during that period he could have returned to the UK for an in-country appeal. In the event that A made an in-country appeal within the period of 10 days, then his leave to remain in the UK would be extended until his appeal has been determined. In the event that A chose to remain outside the UK, he would have 28 days in which to appeal, but this would mean that the appeal must be pursued from outside the UK.
After the decision in MK, A’s newly instructed representatives wrote to SIAC claiming that the decision applied to A and that he had suffered a “significant disadvantage” in his appeal. A’s counsel made it plain that A was entitled to enter the UK for his appeal which ought to be adjourned until A re-entered the UK.
The truth of the matter was that an in-country appeal could have been pursued unless the SSHD certified A’s asylum and human rights claim as clearly unfounded – in fact in A’s case no such certification had been made.
Admin Court’s decision
As set out above the decision notice indicated that A shouldn’t try to return to the UK as he would be refused entry and the notice informed A of his out-of-country right of appeal to SIAC within 28 days. Although it was common ground that someone in A’s position (who was abroad when given notice of the SSHD’s intention to deprive him of his leave to remain) had 10 days to return to the UK and lodge an in-country appeal, the claim was dismissed as Mitting J decided that the notice should not be treated as totally invalid under the assertion that A had no in-country right of appeal because A was not entirely deprived of an effective right of appeal.
The Court of Appeal’s decision
Applying MK v SSHD, the court made it plain that although depriving A of his in-country right of appeal did not entirely deprive him of an effective right of appeal, his exclusion from the UK did deprive him of a valuable right, namely, the right to pursue his appeal in-country. At paragraph 39 the court ruled that the Immigration (Notices) Regulation 2003 not only provided that a notice of decision must state that there was “a right to appeal, but also how the right of appeal may be exercised.”
Applying R v Soneji  UKHL 49, Sullivan LJ made the observation (at paragraph 41) that:
Parliament would have intended that a failure in a notice of decision to comply with the requirement to advise an appellant that he was entitled to an in-country right of appeal would render the notice invalid.
It was also clarified that an appellant, such as A, who had to pursue his appeal while he was out of the country faced considerable disadvantages –“The handicaps under which appellants labour in SIAC are well established” (at paragraph 43).
The disadvantages were especially acute in the context of an appeal to SIAC because such appellants were procedurally deprived of their “fundamental right – to see the whole of the case against them – to which they would otherwise be entitled as a matter of fairness under the common law” (ibid).
Therefore, it was straightforward that the court should be vigilant and ensure that appellants involved in SIAC proceedings were not further disadvantaged by the SSHD’s failure to comply with the 2003 Regulations. Moreover, the 2003 Regulations were produced because it was acknowledged that people needed clear advice about their rights of appeal and that the SSHD bore the statutory responsibility to provide that information.
Accordingly where an appellant – such as A – was erroneously advised, MK v SSHD would normally require the SSHD to correct the error. At paragraph 45, it was quite rightly pointed out that where such corrective action was not forthcoming, it was hard to see how the court could decline an invitation to quash the defective notice:
If the Respondent [SSHD] either failed or refused to take any steps to rectify the error, it is difficult to see how the Court could properly decline to quash the defective notice, thus depriving the wrongly excluded appellant of any relief.
All in all one would have to agree that the Court of Appeal made a pretty well informed decision because in many instances the SSHD does not serve notice in accordance with the law and still gets away with it.