Upper Tribunal demands adherence to proper standards of appellate advocacy

Das (paragraph 276B – s3C – application validity) Bangladesh [2019] UKUT 354 (IAC) (8 October 2019) 

This case makes a variety of points about the validity of immigration applications, the enjoyment of statutorily extended leave under section 3C of the Immigration Act 1971, timeliness, adherence to proper standards of appellate advocacy in the UT and  the grant of permission to appeal to the UT following a successful application to the Administrative Court. A married couple of Bangladeshi nationality who were born on 1 April 1980 and 23 September 1987 respectively, Mr Tapan Kumar Das and Mrs Sudipta Modak appealed against a decision of FTTJ Keith who dismissed their appeals against the refusal of their human rights claims. Mr Das’s application was for ILR under paragraph 276B of the Immigration Rules. Mrs Modak and their three year old daughter’s application for leave to remain was made on family life grounds, seemingly anticipating that Mr Das would be granted ILR and that their cases would be assessed with that in mind. The decision-maker rejected that the main applicant Mr Das had accrued at least ten years of continuous lawful residence in the UK and his application was accordingly refused under paragraph 276B(i)(a). Mrs Modak and the child’s applications were refused in light of the decision on Mr Das’s case. The UT took the opportunity to reiterate Hickinbottom LJ’s observation in Harverye [2018] EWCA Civ 2848 that the grounds of appeal are the well from which the argument must flow. The UT dismissed the appeal without hearing from the SSHD. 

Mr Das, the first appellant, arrived in the UK in January 2007 as a student and a day prior to the expiration of his visa on 11 September 2008, he tried to make an application for further leave to remain as a student but used the wrong form and so his application was rejected. He then rectified his error and obtained a student visa from 5 March 2009 to 30 November 2009. His leave was further renewed on four occasions and his leave was due to end on 30 June 2017 but was curtailed to expire on 29 June 2015. Prior to his leave’s expiry Mr Das applied for further leave on human rights grounds but his application was refused and the decision was upheld on reconsideration. The appeal was struck out for want of payment of fees but was reinstated in July 2016 only to be withdrawn in January 2017 before it could be heard by the FTT. Mr Das’s application for ILR under paragraph 276B was made (or purportedly made) on 28 December 2016. In the decision of 28 December 2017, the decision-maker concluded that the events in 2008 broke Mr Das’s continuous lawful residence. The FTT declined to exercise discretion in respect of this gap because he had not provided any grounds upon which the judge was prepared to do so.

Context

In the FTT it was submitted that Mr Das had been assured by the Home Office that his application for leave would be treated as if it had been “in time” when he resubmitted it using the right form and that the decision-maker should have exercised his discretion in respect of the gap in autumn 2008. Moreover, FTTJ Keith recorded that the agreed core issue on appeal was the gap in Mr Das’s lawful residence between 12 September 2008 and his application for leave to remain as a student, which was subsequently granted on 5 March 2009. Clarity was provided to the fact that there was a residual argument on article 8 of the ECHR if the central issue was resolved against Mr Das. FTTJ Keith analysed the evidence given by Mr Das with some care and his evidence included a contemporaneous note which had been made by Mr Das on 18 November 2008 that recorded a telephone call between him and a member of the Home Office staff. 

After having considered that evidence, FTTJ Keith did not accept that the decision-maker would have assured Mr Das that his application would be treated as “in-time” when it was resubmitted using the correct version of the form. FTTJ Keith found that the application which Mr Das had attempted to make in September 2008 was “invalid and was treated by the respondent as such”. The judge did not consider there to be any breach of Article 8 in returning the Das family to Bangladesh.

Permission to appeal to the UT was sought but refused by FTTJ Hollingworth in October 2018 and a renewed permission to appeal was made by new solicitors acting for Mr Das but UTJ Kebede refused permission to appeal since grounds were advanced invoking various aspects of the Home Office policies which had not been brought to FTTJ Keith’s attention. Thus, UTJ Kebede concluded that FTTJ Keith had given sustainable reasons for finding that the appellants could not meet the Immigration Rules and that their removal would not breach article 8. Mr Das and Mrs Modak then applied to the Administrative Court under CPR 54.7A and permission to apply for judicial review was granted and UTJ Kebede’s refusal of permission was quashed following which the UT granted permission to appeal in light of the High Court’s decision, reminding the parties that the UT’s task was set out in section 12 of the Tribunals, Courts and Enforcement Act 2007.

The Appeal 

Counsel for Mr Das, Mr Saini addressed the UT on one specific point, i.e. FTTJ Keith erred in his assessment of the contention that Mr Das’s September 2008 application as a student had been invalid. Indeed, despite all the specifics of the argument, nothing in the appeal papers said that the application was invalid and so it was submitted that FTTJ Keith erred in relying on the SSHD’s assertion that there had been any such notice when there was no evidence in support of that assertion. To that end, reliance was placed in the case of MH (Respondent’s bundle: documents not provided) Pakistan [2010] UKUT 168 (IAC).

Reliance was also placed in Mirza [2016] UKSC 63  and OS (Russia) [2012] EWCA Civ 357 to advance the submission that unless there was proper notice of invalidity, Mr Das’s application was valid. De facto invalidity did not amount to de jure invalidity. The SSHD bore the burden to demonstrate that the application was invalid. The SSHD failed and significantly the application of 11 September 2008 was to be treated as valid and in-time. The upshot was Mr Das had magically enjoyed statutorily extended leave under section 3C of the Immigration Act 1971 throughout the period in question. Consequently, Mr Das had enjoyed continuous leave between from January 2007 to January 2017 and so FTTJ Keith had erred in concluding otherwise. This neat argument was rejected and the UT said that at no point in time previously were these points argued and in the FTT, UT and in the Administrative Court the clear position had been to accept that there had been a gap in Mr Das’s lawful residence because of the problem with the September 2008 application.

Moreover no attempt had been made to vary the grounds, nor had there been any notice to the UT or SSHD that a new point was to be argued. The UT allowed the appeal to be put back in the list to allow Mr Saini an opportunity to consider whether he wished to develop submissions on the grounds of appeal. His position was that no formal concession was made and that the September 2008 application had been invalid. Further, the grounds for judicial review used this “theme” and the SSHD had been on notice that this point might be in issue. He also maintained that current approach to the use of incorrect forms was subject to some leniency, which was relevant to the way in which the Tribunal should consider the point as in SF (Albania) [2017] UKUT 120 (IAC). The UT pressed upon Mr Saini that the version of paragraph 34C of the Immigration Rules in force in September 2008 and to consider whether the stipulation that an application which did not comply with paragraph 34A “will be invalid and will not be considered” might distinguish the situation from that which arose under the biometric regulations in Mirza. 

Further, the UT said that it received no submission in response and it received no reply to its concerns regarding (i) whether it could properly be said that an appeal was pending between the date on which it was lodged without payment of a fee and the date on which it was reinstated when the fee was received, and (ii) whether Mr Das could properly be said to have made a valid application for ILR in December 2016, given that his leave was said to be extended by operation of section 3C of the Immigration Act 1971 at that point.

The Upper Tribunal

The UT embarked upon its analysis of the above situation by recalling Hickinbottom LJ’s observation in Harverye that the grounds of appeal are the well from which the argument must flow. UTJ Blundell and Ockelton VP reiterated the point made by the the Court of Appeal regarding the high importance of adherence to proper standards of appellate advocacy in immigration appeals. Overall, advocates are not permitted to consider that they are free  to make any argument which occurs to them, whether or not it appears in the grounds of appeal and whether or not any notice of the argument has been given to the SSHD or the UT. In ME (Sri Lanka) [2018] EWCA Civ 1486, it was emphasised by Lewison LJ that the arguments which can be argued on appeal are limited by the grounds of appeal for which permission has been granted. UTJ Blundell and Ockelton VP were of the view that: 

16. … These observations apply with equal force to appellate proceedings before the Upper Tribunal. An application may be made to vary the notice of appeal but, in the absence of such a notice, advocates should expect that scope of their argument will be restricted to the grounds upon which permission was granted.

The existing grounds in Mr Das’s case argued two points (i) that FTTJ Keith had erred in failing “to consider whether discretion should be exercised to disregard the break in the first appellant’s lawful residence”, and (ii) that the proceedings before the FTT had been procedurally unfair because the respondent had failed to bring relevant policy guidance to the attention of the judge. The point on validity of the 11 September 2008 application (or whether it was not correctly classified as invalid in circumstances in which the SSHD had given no, or no adequate, notice of invalidity) did not feature in the grounds. This failure annoyed the UT and it said: 

17. … It was improper, in these circumstances, for Mr Saini to seek to advance this argument before us. In any event, the point is wholly without merit, for the following reasons.

18. It is accepted by the appellant that he submitted the wrong application form on 11 September 2008. He submitted his application on Form FLR(S), version 04/2008. On 18 August 2008, however, a new version of the form was issued. This was version 08/2008, which was specified for use in applications made on or after that date. When the appellant came to make his application in mid-September 2008, it was the newer version of the form which was to be used.

19. At the time that the appellant made this application, the Immigration Rules stated, at paragraph 34A(i), that an application must be made using the specified form. Paragraph 34C of the Immigration Rules was inserted by HC321 on 29 February 2008. From that date until its amendment on 9 July 2012, it provided as follows: “Where an application or claim in connection with immigration for which an application form is specified does not comply with the requirements in paragraph 34A, such application or claim will be invalid and will not be considered.” 

Mirza failed to assist Mr Das in his predicament as in that case the Supreme Court held (discussed here) that the terms of the Immigration and Nationality (Fees) Regulations 2011 did not allow applicants to depart from timely payment of fees. The Supreme Court held that “an application which is not validly made can have no substantive effect” and could not engage section 3C of the 1971 Act as a result. But in relation to the Immigration (Biometric Registration) Regulations 2008 things were different, because the requirement to enrol biometric information only arose at a later stage, on receipt of a notice from the respondent. 

The court thus rejected the point that the subsequent failure to provide the information should be treated as retrospectively invalidating the application from the outset, thereby nullifying the previous extension of leave under section 3C. While the Home Office had a power to treat the application as invalid, the applications only became invalid from the point that notice was provided.

Mr Das fell into the first cohort in Mirza and his application was invalid at the time it was made since that was the outcome warranted by paragraph 34C. Moreover, cases such as OS (Russia) and Anufrijeva [2003] UKHL 36 were different as they concerned a situation where effective notice of a substantive decision must be given before it can have legal effect. In the context of Mr Das’s case, as applied the Immigration Rules stipulated at the time that the application of September 2008 was invalid when it was submitted, without any requirement of notice. The fact that the wrong form was used sealed his fate and thus the absence and the claimed inadequacy of the decision-maker’s letter from November 2008 were irrelevant. The application was on the wrong form and was therefore invalid and was incapable of engaging section 3C of the Immigration Act 1971. 

The one argument that flowed from the grounds of appeal was of no assistance to Mr Das. That point related to the relaxation of the rules in 2012 about the use of incorrect forms and the UT found it “simply illogical” that the argument was made that later Immigration Rules could somehow be applied to events which occurred when a different version of the rules was in force, especially when there is no indication that the rules should have such retrospective effect. SF (Albania) was cited but not provided to the UT. It concerned an entirely different situation where the Home Office invited the UT to take cognisance of current policy and current facts in considering the balancing exercise under article 8. 

Mr Das had overstayed for five months (from 12 September 2008, when his leave came to an end, until 5 March 2009). His case could not be rescued by the Home Office’s Long Residence guidance of April 2017 because in the absence of exceptional circumstances (such as serious illness, travel or postal delays or an inability to provide the necessary documents) only 28 days overstaying was permitted. Mr Das’s case was anything but exceptional. 

The UT had some further advice for him and said that he should consider the following if he intended to make a further application for ILR under paragraph 276B in the future (i) his appeal had been struck out on 1 July 2016 and reinstated on 28 July 2016 and section 3C did not apply during this period, since no appeal could properly be said to be pending within the meaning of that provision for these four weeks, and (ii) as for the application of 28 December 2016 if was extended by section 3C during that time, section 3C(4) applied, and prevented him from making an application for variation of his leave to remain while his leave was so extended. The UT appreciated that fact that article 8 was not relied upon without reference to paragraph 276B. It held that without reference to paragraph 276B, it was unarguably proportionate to remove the Das family because of the fact that “they will return to Bangladesh as a family and there is no proper basis for contending that such a course would give rise to unjustifiably harsh consequences.” 

Headnote 

(1) The validity of an application for leave to remain is to be determined with reference to the law in force at the time that it is made or purportedly made.

(2) An application which was invalid according to the law in force at the relevant time cannot be rendered valid by a subsequent change in the law.

(3) There must be adherence to proper standards of appellate advocacy in the Upper Tribunal. In the absence of a formal and timeous application to vary the grounds, professional advocates must expect to be confined to the grounds upon which permission was granted.

(4) When permission to appeal to the Upper Tribunal is granted following a successful application to the Administrative Court under CPR 54.7A (“a Cart JR”), permission is granted by reference to the grounds to the Upper Tribunal, not the grounds to the Administrative Court: Shah [2018] UKUT 51 (IAC); [2018] Imm AR 707.

Comment

Problems arising out of the invalidity of applications have now become a thing of the past with the new online system of immigration applications which are validly made as soon as the application fees are paid. However, the new system is more controversial as free biometric enrolment and facial capture appointments with Sopra Steria/UKVCAS are taking unto 8 weeks. For example, applicants can no longer take their biometrics letter to the post office. This means that applicants who want a speedier service are forced to pay extra money (£60/£100/£200/£260 for added services) on top of the extortionist fees charged to immigrants (90 per cent of the fee money is profit and no money is refundable where a case is refused). Scanning costs extra too. The UK’s immigration system is driven by profit and the Home Office is constantly putting the fees up to maximise profits. 

This judgment is a clash of the judges because Parminder Saini is also a Deputy Judge of the Upper Tribunal, Immigration and Asylum Chamber. Since being elevated to such a high judicial position is only possible for individuals with extreme achievements, it goes without saying that Mr Saini has been counsel for immigrants in some of the biggest immigration cases in recent years. His cases include Lounes (C‑165/16, EU:C:2017:862, discussed here), R (Agyarko & Ikuga) [2017] UKSC 11 (discussed here) and Balajigari & Others [2019] EWCA Civ 673 (discussed here).

Given that UTJ Blundell and Ockelton VP rebuffed the way in which appellate advocacy was conducted and demanded “adherence to proper standards of appellate advocacy” that flowed from the grounds in Mr Das’s case, the outcome in this appeal is a reminder that overreaching the contents of the grounds is likely to displease overworked judges in immigration appeals. 

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Bangladesh, ECHR, Immigration Rules, Judges, Judicial Review, Notices, PBS, Tribunals, UKSC and tagged , , , , , . Bookmark the permalink.

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