subject: Right of appeal in a human rights claims [print this page] Right of appeal in a human rights claims Right of appeal in a human rights claims
Anwar & Anor v Secretary of State for the Home Department [2010] EWCA Civ 1275 (11 November 2010)
A tribunal had jurisdiction to hear an immigration decision which carried no right of in-country appeal, until that point was taken. Only once the point was taken would it operate in bar of the proceedings. The Secretary of State for the Home Office (SSHO) could not contend that there had been no jurisdiction to entertain a subsequent appeal in the first place.
Ms Pengeyo and Mr Anwar had been granted leave to remain to study at a college. It was later removed from the register of training and education providers for issuing bogus qualifications. Ms Pengeyo found a new provider following Home Office advice. Mr Anwar had already changed colleges because of the substandard teaching.
Ms Pengeyo and Mr Anwar were subsequently notified they were being removed from the UK for obtaining leave to remain by deception (Immigration Act 1971, s. 24A). Both were acquitted of deception on appeal. However, on reconsideration the appeals were dismissed on the ground that the immigration judge had lacked jurisdiction, there being no right of in-country appeal under s.92(1) of the Nationality, Immigration and Asylum Act 2002.
Any apparent absolute bar to justice, such as that contained in s. 92(1), had to be scrutinised carefully. The Court of Appeal in the instant case held that the Asylum and Immigration Tribunal had had jurisdiction to embark on the hearing, notwithstanding that neither appellant had left the UK. There was a distinction to be drawn between constitutive and adjudicative jurisdiction (Carter v Ahsan (No.1) [2007] UKHL 51, 1 AC 696). The constitutive jurisdiction of a tribunal was the power to embark upon trying a specific issue. Adjudicative jurisdiction was the power to issue judgment. Whether a foreign national had obtained leave to remain by deception was constitutive. Adjudicative jurisdiction depended on whether the appellant had left the UK. Until the adjudicative jurisdiction had been determined, the tribunal had jurisdiction to hear the appeal. The ostensible bar to justice contained in the 2002 Act was no bar unless the point was taken. Once the out-of-country point was taken by the SSHO, however, it would operate in bar of the proceedings.
Given that the point would only apply if taken, to take it in order to prevent the exposure of a shameful decision to criminalise and remove an innocent person, without evidence or opportunity to answer, was a serious abuse of power. The powers of one of the great offices of state had been so misused as to rob the SSHO's decisions of legal authority (Board of Education v Rice [1911] AC 179; the CCSU case [1985] AC 374, 410). The appeals were formally dismissed, but only because the SSHO had withdrawn at the last minute a decision which ought never to have been made.
In Mr Adjo's case there was no right of appeal because there was no immigration decision for the purposes of rule 353 of the Immigration Rules, against which to appeal, under s. 82(1) of the 2002 Act. Mr Adjo's human rights claim had been rejected previously but this would not constitute an appealable immigration decision. A human rights claim would not convert the refusal of an immigration claim into an appealable decision, nor would it generate an independent right of appeal.
