Refusal of ILR but grant of leave means no right of appeal

R (M Aleem Mujahid) v First Tier Tribunal (Immigration and Asylum Chamber) [2021] EWCA Civ 449 (31 March 2021)

These proceedings turned on the question where a person who is in the UK makes an application for indefinite leave to remain (ILR) which is to be treated as a “human rights claim” within the meaning of section 113 of the Nationality, Immigration and Asylum Act 2002 and the SSHD decides to refuse ILR but grants the individual limited leave to remain, does she “refuse a human rights claim” within the meaning of section 82(1)(b) of the Act, with the result that the individual has a right of appeal to the FTT. Significantly, the Court of Appeal has held that the Upper Tribunal (President Lane) was right to answer this question in the negative and rightly dismissed Mr Mujahid’s judicial review proceedings, by which he sought to challenge the FTT’s decision that no right of appeal to the FTT existed in the specified circumstances. Mr Mujahid was a Pakistani citizen who arrived in the UK in October 2006 as a student and extended his leave as a Tier 1 (Post-Study) Work Migrant and a Tier 1 (General) Migrant until August 2016. He applied for ILR on the basis of Tier 1 (General) but subsequently varied his application to an ILR application on the basis of 10 years’ long residence. The letter accompanying Mr Mujahid’s application said that he had a wife, adult son and minor daughter resident with him in the UK who were all Pakistani citizens and he claimed to have very strong private and family life in the UK.

In stating all his reasons for wishing to stay in the UK, Mr Mujahid made two statements in the following terms “I accept that where I do not qualify for indefinite leave to remain but fall for a grant of limited leave, my application will be treated as an application for limited leave and I may be asked to pay an immigration health surcharge” and “I accept that, in the event that I do not meet the requirements for indefinite leave, my application may also be considered as an application for limited leave to remain and understand that the Secretary of State will not grant a period of limited leave unless the requirement to pay an immigration health charge … has been met.” The decision-maker responded to the application in February 2018 stating that he did not qualify for ILR but that he would fall to be granted limited leave to remain of 30 months owing to exceptional circumstances if he made a valid application for such leave. The exceptional circumstances justifying the grant of limited leave were stated to be that his daughter had resided in the UK for over seven years. The decision-maker said that the SSHD was now treating his application as an application for limited leave to remain which would be treated as invalid if he failed to pay the immigration health surcharge of £500 within 10 days of the date of the response letter. Once he had paid it, his application would be treated as a valid application for limited leave to remain and he would be granted 30 months limited leave to remain in the UK. Indeed, in March 2019 he received that leave and was advised that he was not entitled to appeal the decision as section 82 did not provide a right of appeal to a person with leave. 

Upper Tribunal 

Mr Mujahid appealed to the FTT nonetheless complaining about the decision not to grant him ILR. The FTT decided that he had no right to appeal to it. After considering the case of Balajigari v SSHD [2019] EWCA Civ 673 (discussed here) in detail, in R (Mujahid) v FTT (IAC) and SSHD (refusal of human rights claim) [2020] UKUT 85 (IAC), Lane J drew a distinction between two categories of case, namely (i) a refusal of an application made on article 8 grounds that has the effect that the applicant has, immediately or imminently, no legal right to be in the UK and is liable to removal (ii) a refusal after which the applicant has a continuing right to be in the UK because he has leave to remain which is not liable to be curtailed. The latter category would include the present case. He accepted that a right of appeal to the FTT would arise in the first of these categories but rejected the proposition that such a right would arise in the second. He then addressed and rejected Mr Mujahid’s submission that the present case involved two separate and discrete decisions, the first being a decision to refuse the application for ILR and the second being to grant a separate application for limited leave.

The President found that it is clear from the definition of “human rights claim” in section 113(1) of the 2002 Act that the presumed removal of an individual from, or the presumed requirement on that individual to leave, the UK is an essential element in order for there to be an appeal. A person who makes a human rights claim is asserting that they (or some person connected with them) have, for whatever reason, a right recognised by the ECHR, which is of such a kind that removing that person or requiring them to leave would be a violation of that right. In the case of a qualified right, such as article 8, a violation may result from the fact that it would be disproportionate to remove or to require the person to leave. Thus, the refusal of a human rights claim made by a person who is in the UK can occur only where the SSHD’s case, in response to the claim, is that she does not consider her obligations under section 6 of the Human Rights Act 1998 require her to respond to the claim by recognising the human right to remain in the UK and grant such individual leave to remain. An appeal was mounted on the basis that namely that the UT erred in law in holding that Mr Mujahid has no right to appeal to the FTT under section 82(1)(b) of the 2002 Act. 

The Court of Appeal 

In the Court of Appeal, Mr Mujahid advanced six strands of argument concerning (i) the constitutional right of access to justice (ii) inconsistency with the general structure and scheme of Part 5 of the 2002 Act (iii) failure to recognise distinctions between section 84(1) and (2) of the Act (iv) the refusal of his application (v) a refusal of an application is refusal of human rights claim even if removal is not contemplated and (vi) the SSHD’s decision will be amenable to judicial review. In a judgment delivered by Stuart-Smith LJ, with whom Underhill and Green LJJ agreed, the Court of Appeal dismissed Mr Mujahid’s appeal. 

As to access to justice, reliance was placed in Saleem v SSHD [2000] EWCA Civ 186 and UNISON v Lord Chancellor [2017] UKSC 51, that the President gave no consideration to the constitutional right of access to justice. If he had done so, he would have appreciated that a right of appeal to the FTT is a fundamental right, akin to access to the courts, which should not be restricted or abolished in the absence of clear statutory language. First of all this point was not taken before the UT. Further, Stuart-Smith LJ did not accept that there was substance in the point as each of the authorities upon which Mr Mujahid relied was a case where a rule making power was exercised in such a manner as to impede the exercise of a statutory right of appeal or (in UNISON) in a manner which prevented the effective implementation of the rule of law. In these proceedings, the court was concerned with the proper interpretation of the primary legislation of the 2002 Act. Stuart-Smith LJ said that legislative intention should be the starting point, as revealed by a proper understanding of the words of the provisions themselves. He stated that reading section 82(1)(b) with the definition of “human rights claim” interposed leads to the following composite provision: a person may appeal to the FTT where the SSHD has decided to refuse a claim made by that person to the SDHD that to remove the person from or require him to leave the UK or to refuse him entry into the UK would be unlawful under section 6 of the Human Rights Act 1998. Stuart-Smith LJ held: 

19. In my judgment, and in agreement with the President, the natural meaning of this composite provision is that a right of appeal to the FTT arises where the Secretary of State’s decision is that there is no lawful impediment to removing the applicant from or requiring them to leave the United Kingdom or refusing them entry. This most naturally refers to the current effect, either immediate or imminent, of the decision when made. There is nothing in the wording of the provisions to suggest that the right of appeal arises where the applicant continues to have a right to remain in the United Kingdom or to enter as the case may be. The effect of the Secretary of State’s decision in the present case is quite the opposite: it is to accept that it would be unlawful to remove the Appellant from or to require him to leave the United Kingdom or to refuse him entry. As was confirmed in both of the Secretary of State’s responses, after receipt of the immigration health payment he would have and has had permission to stay for 30 months, which is not liable to be curtailed, and he was not required to leave the United Kingdom as a result of the decision.

20. The Appellant’s interpretation seems to me to strain the words of the statute beyond what they can reasonably bear; and I can see no reason of legal policy to support it.

Instead, it would raise the prospect of challenges that would be premature, academic, or both. If an appeal to the FTT were made it would run the risk of being rendered academic if Mr Mujahid were to make an application for further permission to remain, which may be granted. If he made another application and permission to remain was not granted, he will then be entitled to challenge that decision at a time when the need for a protective right of appeal to the FTT will be present and real rather than prospective and theoretical.

Mr Mujahid was not prevented from challenging the present decision by judicial review, if so advised. It was therefore not possible to say that he was denied appropriate access to the courts if the SSHD’s interpretation was upheld. Thus, Stuart-Smith LJ said that it was the court’s provisional view would be that the interpretation adopted by the UT did not amount to a restriction of a right of access to justice that would otherwise have existed. Rather, it is to be characterised as a comprehensible scheme for giving access to justice when it is needed, but not otherwise. Mr Mujahid made two further arguments to defeat such an interpretation. 

Mr Mujahid also argued that clear language was required for the removal of rights of appeal. However, section 82(1)(b) created a right of appeal rather than curtailing a right that would otherwise exist. The interpretation adopted by the UT was consistent with the general structure and scheme of Part 5 of the Act. Section 104(4A) of the Act provided that an appeal under section 82(1)(b) by a person in the UK was treated as abandoned if they were granted leave to enter or remain in the UK. It would be incoherent to find that Mr Mujahid had a right to appeal to the FTT if the SSHD granted limited leave to remain in response to an application for indefinite leave, but that appeals in other circumstances involving the refusal of a human rights claim were to be treated as abandoned if limited leave was subsequently granted. 

Mr Mujahid submitted that the refusal of indefinite leave should be seen in isolation and that, as his application for indefinite leave was a human rights claim, as defined, there has been a refusal of a human rights claim within the meaning of section 82(1)(b). As to that point, whether there was one decision or two, Stuart-Smith LJ said that it was artificial to try to split the SSHD’s decision-making process. Context was important and by virtue of his application Mr Mujahid accepted in clear terms that if he did not qualify for ILR his application should be treated as one for limited leave and that he might be asked to pay the immigration health charge. The SSHD’s response and subsequent granting of limited leave were part of one decision-making process, the response was not a decision to refuse a human rights claim. Section 82(1)(b) was unambiguous that the test to be applied is not what the applicant has applied for but what the SSHD has refused. Reading the response of the decision-maker in February 2018 in isolation and put at its highest for Mr Mujahid, that response left open whether the SSHD would decide that it was or was not unlawful to remove him from or require him to leave the UK or to refuse him entry. So the response was not a decision to refuse a human rights claim as defined and the decision in March 2019 to grant limited leave was to the opposite effect.

The argument that the refusal of an application is a refusal of a human rights claim even if removal is not contemplated was similarly incorrect. On that score, Mr Mujahid could not get any comfort from Lord Carnwath’s position in the case of Patel v SSHD [2013] UKSC 72 where he said “the law has moved beyond the proposition that human rights only arise on removal decisions.” This point was uncontroversial. It was made in a different context and in the present situation it was common ground that the availability of an appeal to the FTT is dependent upon whether the SSHD has refused a human rights claim and it did not turn on whether a decision has been taken to enforce removal or refuse entry. That did not assist in resolving the issue in Mr Mujahid’s case, i.e. what constitutes refusal of a human rights claim? 

Next, on the amenability of the SSHD’s decision to judicial review Mr Mujahid submitted that the UT will make its own findings of fact and a fresh decision. He said it was wrong in principle and deeply unattractive that justice had to be separately secured by the use of a circuitous and arguably inappropriate route. The reasoning underlying this point seemed to be that (a) a refusal of ILR will give rise to judicial review proceedings mounted upon article, and (b) the FTT is better placed to conduct a fact finding hearing than the UT. 

Stuart-Smith LJ agreed that judicial review proceedings based on article 8 may require a fact finding hearing but he rejected that a refusal of ILR will engage an applicant’s article 8 rights where the refusal does not render him liable to be removed or require him to go from the UK (or be refused entry, as the case may be). He adopted the principle found in R (MS (India)) v SSHD [2017] EWCA Civ 1190 at para 138 that “it is important to bear in mind that the withholding of ILR is not in itself an interference with article 8 rights”. The court found nothing that is either wrong in principle or unattractive in practice in adopting the interpretation for which the SSHD contended as there was a right of appeal to the FTT when there is a present and real need after refusal of a human rights claim and otherwise a decision to refuse ILR was only challengeable on normal public law grounds. The court said that the legislative purpose the implementing words used were clear. Parliament had determined that the additional protection of an appeal to the FTT shall be available in the case of the most extreme outcome, namely where the effect of the SSHD’s decision “is to render the applicant liable to removal or a requirement to leave or refusal of entry, but not otherwise.” 

Comment 

Notably, the decision-maker refused ILR in Mr Mujahid’s case because of concerns that he had given discrepant accounts to, respectively, her and to Her Majesty’s Revenue and Customs, regarding his earnings in respect of certain tax years. Accordingly, the decision-maker took the view that the applicant had either misrepresented his earnings to HMRC in order to reduce his tax liability or had provided false information about his earnings to the Home Office in order to obtain leave to remain, or both. So the decision-maker was of the view that ILR fell to be refused – because of Mr Mujahid’s character and conduct – in line with paragraph 322(5) of the Immigration Rules. Therefore, despite his very lengthy legal campaign, he is extremely lucky that the decision-maker granted him leave to remain in the UK on the basis of exceptional circumstances. Others have been less fortunate. 

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Access to Justice, Appeals, Article 8, Court of Appeal, Curtailment, Immigration Act 2014, Immigration Rules, Judicial Review, Pakistan, Paragraph 322(5), PBS, Post Study Work, Settlement, Tier 1, Tribunals, UKSC and tagged , , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.