Court of Appeal says ‘kitchen-sink’ approach to the citation of authorities is ‘wholly illegitimate’

Kaur v The Secretary of State for the Home Department [2019] EWCA Civ 1101 (1 July 2019)

Dismissing a Tier 4 (General) student’s appeal, the Court of Appeal has held that it is “wholly illegitimate” for legal representatives to cite excessive authorities because such behaviour unnecessarily burdens the tribunals where the workload is heavy and existing facilities are already overstretched. In fact this new warning comes off the heels of the earlier advice in UT (Sri Lanka) [2019] EWCA Civ 1095 (discussed here) where, apart from providing an outline of the proper approach that the Upper Tribunal should take as regards immigration judgments made in the First-tier Tribunal, the Court of Appeal also highlighted two unsatisfactory practices or attitudes which undermine the quality and efficiency of justice in immigration and asylum cases, namely the almost endless citation of cases by the parties’ representatives and the erroneous belief that every decision is capable of being appealed with the result that neither side ever regards any decision as final. In the present case, Floyd, Leggatt and Coulson LJJ strongly discouraged the “kitchen-sink” approach to citing authorities and were very critical of the applicant’s counsel because of the citation of an unreported case that was never previously referred to, i.e. Nanette Marcellana v SSHD UT IA/01888/2013. Mrs Kaur’s appeal was a second appeal arising from a decision taken by the Home Office in October 2015 refusing her leave to remain in the UK as a Tier 4 (General) student migrant under the Points-Based System.

The grounds of appeal raised concerned two narrow issues concerning the power of the Home Secretary to retain Mrs Kaur’s original passport during a period when she was seeking fresh sponsorship. Permission to bring the second appeal was granted only on two grounds only (i) that the decisions of both tiers of the tribunal were not in conformity with Nanette Marcellana, and (ii) the SSHD should have exercised her discretion to return the passport because these were “exceptional circumstances”. Against that the Home Office submitted that neither the First-tier Tribunal nor the Upper Tribunal possessed necessary jurisdiction to entertain Mrs Kaur’s challenge since her complaint was not aimed at the decision refusing her leave to remain but turned on the earlier decision to retain her original passport, such action not falling within the meaning of an “immigration decision” as defined by statute. This was a threshold point, which Coulson LJ rejected “as a matter of principle”. Mrs Kaur was refused leave to remain because her educational institution had withdrawn the necessary Confirmation of Acceptance for Studies (“CAS”). She appealed and it was undisputed that the decision-maker referred to the wrong CAS number and that the CAS had not been withdrawn.

Context

The matter was remitted back to the decision-maker. However, it then transpired that the educational institution surrendered its sponsorship licence with the result that Mrs Kaur’s CAS was rendered invalid. She was provided a further period of 60 days, during which the SSHD suspended any consideration of her application for further leave to remain as a Tier 4 (General) student. She was invited either to withdraw her application and submit a fresh application in a different category, or to leave the UK, within that 60-day period.

The decision-maker provided the further alternative that if Mrs Kaur wanted to continue to pursue her application as it stood, she should, within the permitted 60 days, find a new educational institution and submit a new CAS. She was given a letter to be shown to other institutions which was headed “Information Leaflet”. But she was unable to find a new sponsor or to submit a new CAS and so after the expiry of the 60 days, her application for further leave to remain as a student was refused by way of a decision dated 22 October 2015 because there was no valid CAS or sponsorship.

Mrs Kaur appealed and argued that her efforts to find an alternative sponsorship or a new CAS were hampered because, although she had been provided an attested copy of her valid passport, the decision-maker had retained her original passport under section 17 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

Tribunal proceedings

FTTJ Green dismissed the appeal on the basis of the facts and he held that he did not find Mrs Kaur’s appeal credible as she failed to provide any supporting evidence to back up her claim that none of the colleges that she had contacted would issue a CAS without first examining her original passport. She said that the colleges that she visited refused to confirm this in writing.

However, FTTJ Green held that the decision was not unfair in the circumstances and the Home Office had discharged its common law duty of fairness because prospective colleges accept an attested passport copy and can be guided by the explanatory leaflet. To retain the original passport is standard practice and Mrs Kaur had been provided an adequate chance to enrol at a different institution and had the necessary documentation to do so.

FTTJ Green’s findings of fact remained undisputed. Subsequently UTJ Hanson rejected Mrs Kaur’s appeal as being without merit. UTJ Hanson emphasised that FTTJ Green’s findings of fact meant that the appeal could not succeed. He also rejected the submission that the decision-maker failed to act in accordance with Home Office guidance, Retention of valuable documents.

The Court of Appeal

The court dismissed the appeal after addressing arguments related to jurisdiction, the citation of Marcellana, exceptional circumstances and the retention of passports. Floyd, Leggatt and Coulson LJJ remained somewhat scathing in their criticism of Mrs Kaur’s legal representatives.

(i) Jurisdiction of tribunals

Giving the main judgment, Coulson LJ rejected the government’s contention that the retention of the passport was not an “immigration decision” as defined by statute. He said that it was possible to imagine circumstances where a decision to retain the original passport prevented an applicant from obtaining the necessary secondary documentation (like a CAS), which led directly to a decision to refuse further leave to remain. The court said that in such situations there was no doubt that both tiers of the tribunal would have the jurisdiction to consider the merits and effect of the decision to retain the passport, because that may well decide the question of whether or not leave to remain was wrongly refused.

The point could be put in a different way by reference to rule 322(9) which sets out a ground of refusal of leave to enter or remain under the Immigration Rules in those cases where an applicant fails to “produce within a reasonable time information, documents or other evidence required by the Secretary of State to establish his claim to remain under these Rules.” In cases such as the present it was necessary to show a causal connection between the decision to retain the original passport, and the subsequent refusal of the application for leave to remain.

In the present case, FTTJ Green found was no causal connection between the retention of the passport and the failure to obtain a CAS or sponsorship. Therefore, while the First-tier Tribunal and Upper tribunal did have jurisdiction, it was clear enough that:

19. … once it had been decided that the absence of the original passport was an irrelevance to the decision to refuse leave to remain, the appellant’s claim for appeal was doomed to fail.

(ii) Marcellana

In relation to the citation of Marcellana – a case also involving the retention of the applicant’s original passport where UTJ Reeds allowed a student’s appeal owing to procedural unfairness in the decision-making process – the Home Office insisted that the unreported decision was not citable in the Court of Appeal because of the effects of Practice Direction: Citation Authorities [2012] 1 WLR 780. The argument was rejected and Coulson LJ said that neither that Practice Direction nor the Senior President’s Practice Direction of the Immigration and Asylum Chambers of the First-tier and Upper Tribunal 2014 presented a complete bar on the citation of such cases to the Court of Appeal. However, citation may be permitted only where “there is a relevant statement of legal principle not found in reported authority” and the court gave the following warning:

23. … This is not simply a dry argument about precedent. Immigration and asylum work at all levels is bedevilled by the promiscuous citation of authorities from all kinds of judges, regardless of the factual background of the case in question, in the hope that there might be something, whether law, or fact or even comment, which might look roughly similar to the case in question and therefore might assist the argument being advanced. It is not unfair to dub it a ‘kitchen-sink’ approach to citation. It is wholly illegitimate and merely adds to the workload of already-stretched FtT and UT judges. Proper limits on the citation of authorities in judicial review cases are required if this blizzard of references to irrelevant, fact-dependant cases is ever going to be stopped.

It did not help matters that, when pressed, Mrs Kaur’s counsel was unable to extract any statement of legal principle from Marcellana that was not otherwise found in the reported authorities.

It was not enough just to observe that in Marcellana UTJ Reeds said at paragraph 38 that on the particular facts the SSHD had “frustrated” the applicant’s attempts to obtain a CAS. Coulson LJ found that Marcellana did not take the court anywhere and it did not give rise to any sort of arguable ground of appeal in Mrs Kaur’s case.

The facts in Marcellana were entirely different and could be distinguished as they were “much stronger” because the applicant required her passport for the specific purpose of taking an English test and she expressly requested her passport’s return. She had been accepted to study on a post-graduate diploma. She had a new CAS and only needed her passport for taking the English test. The Home Office accepted that it had caused delay and the facts were far removed from the facts of Mrs Kaur’s case because they gave “rise to an unexceptionable decision.” Therefore, the attempt to cite Marcellana was illegitimate in the circumstances and the attempt to induce the court to indulge in it also showed the absence of any plausible arguments available in this case. Hence, the Marcellana ground failed.

(iii) Exceptional circumstances

Notably, Mrs Kaur’s grounds of appeal accepted that section 17 of the 2004 Act conferred discretionary power on the decision-maker to retain her passport. However, she said that her passport should have been returned because there were exceptional circumstances in her case. The submission was rejected on the facts of her case but Coulson LJ judged that (at least in theory) a realistic “challenge to the exercise of the discretionary power to retain an applicant’s passport might lie in the existence of exceptional circumstances which made the retention unfair or otherwise unlawful.” However, in his Lordship’s view Mrs Kaur’s case “could not be more ordinary” as she was “like thousands of others” she found herself without sponsorship or a CAS and failed to find an alternative in the 60 days allotted.

Despite such facts the court held that it was not open to Mrs Kaur to argue that her failure to get a CAS or alternative sponsorship was somehow connected to the retention of her original passport and the provision of an attested copy instead. The decision-maker had been entitled to exercise discretion against returning the passport.

(iv) Retention of passport

Mrs Kaur submitted that any retention of the original passport at all was unlawful under section 17 of the 2004 Act. The argument was made on the basis that she was not a person who the Home Office reasonably suspected “may be liable to removal from the United Kingdom in accordance with the provision of the Immigration Acts”. The argument was canvassed on the ground that, at the time of the decision to retain the original passport, Mrs Kaur had leave to remain and that her leave had not been curtailed. The point was rejected for a number of reasons without the need for the court to reach a concluded view on it. The statutory language was wide in scope and in order to retain the document, the Home Office need only suspect that the person in question may be liable to removal. A person such as Mrs Kaur was covered by the terms of section 17 of the 2004 Act and the width of the words used did not mean that her passport could only be retained once her leave had been curtailed. Equally, the extension of her leave pursuant to section 3C(2)(a) of the Immigration Act 1971 further confirmed the court’s analysis because Coulson LJ felt that persons with this form of leave were in an insecure position and might well fall into the class who may reasonably be suspected of being liable for removal.

The Home Office rightly submitted that the discretionary power relating to retaining passports of those suspected of being potentially liable for removal was similar in nature to the Home Secretary’s power to detain those migrants whose leave may be curtailed under section 10 of the Immigration and Asylum Act 1999 in relation to which the court in R (SW) [2018] EWHC 2684 (Admin) rejected the submission that the argument that the power to detain could only apply once the relevant person’s leave had been curtailed.

Home Office guidance, i.e. Retention of valuable documents, explains that if a caseworker curtails leave to 60 days he/she must return the valuable documents because the migrant still has valid leave to remain. Therefore, Mrs Kaur’s passport should have been returned to her. However, Coulson LJ said that he did “not find this guidance easy to decipher” because Mrs Kaur’s leave was not curtailed to 60 days and the 60 days was a period of suspension prior to a decision being made as to whether or not to curtail her leave. He therefore held:

44. For all the reasons that I have given, I consider that section 17 applied to the retention of the appellant’s original passport. Its retention was a matter of discretion for the SSHD and there were clear grounds to justify its retention.

(v) Per Floyd LJ

Concurring with Coulson LJ’s judgment, Floyd LJ added a few words of wisdom on the inappropriate citation of decision in Marcellana and he said that “the excessive citation of authorities because they bear similarities on the facts to the case under consideration is not a new problem, or one limited to the field of immigration and asylum law.” Notably, in Savage v Harris (1896) 13 RPC 364, in the century before last, Lopes LJ (with whom Lindley and Kay LJJ agreed) said this in a case on patents:

Cases, so far as regards the law, are most useful, but when they are applied to particular facts, they, as a rule, are of little service. Each case depends on its own particular facts, and the facts of almost every case differ.

Floyd LJ concluded that citing previous decisions on questions of fact only increases costs and also wastes court time and scarce resources.

Comment

While it is possible to sympathise with the Court of Appeal’s position that a “kitchen-sink” approach to citing authorities overloads the burdens on an already-stretched tribunal judiciary, it is much more difficult to see how Coulson LJ can justify his position on a “blizzard of references” in this case because the only authority raised was Marcellana and it arguably seems to have been on point because of the contextual similarities with the present case. The tone of the Court of Appeal in this case reconfirms the rise of a judicial culture that is extremely harsh on immigrants and their lawyers but which has a soft spot for the Home Office.

Of course the court was quite right to emphasise that increasing costs and wasting court time and scarce resources must be avoided but it must be remembered that Home Office officials are infamous for burning a hole in the public purse because of paying large sums in costs for their appalling decisions which cannot be defended in court in judicial review proceedings. They are extremely busy flushing tens of millions of pounds annually down the drain to pay for mistakes that should never have been made.

It is nevertheless an emollient feature of this judgment that Coulson LJ found it possible to imagine situations where a decision to retain the original passport prevented an applicant from obtaining the necessary secondary documentation (like a CAS), which led directly to a decision to refuse further leave to remain.

In many cases, it is not possible to find an alternative sponsorship or another CAS only on the basis of an attested copy of a passport and a letter headed “Information Leaflet” to be shown to other institutions. Most institutions fear the Home Office so much that they demand an original passport with a valid existing visa in the right category even to make an offer of study. So great is the fear of falling foul of the intricacies of UK immigration law that most institutions will be a lot like the Home Office and will readily resort to behaving like border guards. They will not consider any prospective students who do not possess a clear immigration status and the relevant documentary proof to confirm it.

With the greatest of respect to the Court of Appeal, Floyd, Leggatt and Coulson LJJ have engaged in some serious armchair anthropology in this decision and they seem to be totally disconnected from what is actually going on in the UK. If they step outside the ivory tower they will find that the hostile environment created by Theresa May is the type of place where everybody is a legitimate target. We recently had a matter where a genuine student in the final stages of her PhD was refused a visa because of her mistake that she submitted her sponsor father’s corporate bank account with her application rather than his personal bank account. The result of the refusal was that her university was forcing her to leave the UK to get a new CAS. The decision-maker even placed her and her two little children on bail. Of course, there was no scope for “evidential flexibility” and the provision of the sponsor’s personal bank statement was a bright-line requirement.

Meanwhile, her landlords and their estate agents were demanding to see a valid visa for her to have a right to rent. She was also repeatedly subjected to the illegal right to rent checks in the same year and her landlords and their estate agents even checked her immigration applications. All this was totally unlawful and absolutely unnecessary.

Of course we put an immediate end to all of our PhD student client’s suffering and she was swiftly granted a Tier 4 (General) visa and got her degree on time. The only reason that I am mentioning all this is that the institution in question, a national university, was quite happy to force their student overseas to seek re-entry and lengthily delay the award of her PhD (and simultaneously cause the removal of her daughters from their secondary school mid-year causing them to lose a year and lag behind their classmates).

So bearing all that in mind, it is not possible for people in Mrs Kaur’s circumstances to wave a magic wand and find a new sponsor/CAS on the basis of an attested copy of a passport and a letter headed “Information Leaflet”. The reality of the situation is hugely different from the neat picture painted by the Court of Appeal because most educational institutions will run a mile from a prospective student who says that she does not have her passport and has no residence permit to prove her right to remain in the UK. Although it is quite understandable that Floyd, Leggatt and Coulson LJJ and their esteemed colleagues are frustrated by the “kitchen-sink” methods that they see in the cases listed before them, it is unhelpful for the judiciary to sweep the dirt under the carpet by distorting everything in the government’s favour – kitchen-sink or no kitchen-sink.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Court of Appeal, Culture, Hostile Environment, Immigration Act 2014, Immigration Rules, Judges, Judicial Review, PBS, Removals, Students, Tier 4, Tribunals and tagged , , , , , . Bookmark the permalink.

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