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In the second Court of Appeal judgment from last week in which Zane Malik was Counsel for the Appellant, that of Lamichhane v Secretary of State for the Home Department [2012] EWCA Civ 260, the same bench has given another judgment that many migrants will find unhelpful.
Essentially, the Court holds that it is not possible to pursue an appeal on grounds other than precisely those pleaded to the Secretary of State or Entry Clearance Officer in the original application. For example, it is not possible to apply for leave under one Immigration Rule but then appeal on the basis that even if the applicant cannot succeed on the basis of that rule he or she could succeed on the basis of another rule.
There is an important qualifier: this is only true if the Secretary of State does not serve a s.120 notice. If none is served, the appeal must be confined to the application made. If a s.120 notice is served, the appeal can be on any grounds raised in the s.120 notice.
Any experienced immigration practitioners will be shaking their heads in sorrow at the insanity of undermining the supposedly one stop nature of the appeal process. Many years ago appeal laws were reformed to prevent multiple appeals on different grounds. The Court of Appeal seems determined to resurrect the Old Ways, however.
A couple of examples:
A decision refusing a student or spouse or any other application is made. The applicant wishes to appeal on human rights grounds, perhaps because of unfairness in the refusal. If no s.120 notice is served, it seems they now cannot, but must instead appeal the original decision on limited grounds and if that fails then put forward another separate application on human rights grounds to the Home Office.
A decision to make a deportation order is served. No s.120 notice accompanies it. Can the recipient appeal only on immigration rule deportation grounds, not on asylum or humanitarian protection grounds? If the recipient had no leave, can he or she not appeal on the basis that a rule such as the 14 year rule, dependent relative or domestic violence rule is satisfied? Will that require a separate later appeal, or will the tribunal ‘remit’ (it has no such power, but the term seems ubiquitous these days) such cases to the Secretary of State? Either way spins out the process.
The decision means that anyone seeking to remain on different grounds than those originally advanced to the Home Office will be entitled to appeal on one basis then make a later separate application once that appeal is completed. It will prolong cases and delay enforcement.
Bonkers.
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4 responses
This is seems daft. The SOS might now be a lot less inclined to serve S120 notice with refusals. Applicants might have to pre-empt refusals by raising additional grounds in their applications just to cover all eventualities
“Enforcement”
Too be really honest, there is almost no enforcement in the UK at all.
“Bonkers” is right. A majority of people working in restaurants all over the country don’t have any papers at all. I know this one guy who “owns” a business but has never had a visa at all: EVER!
All the curtailed visas of the hundreds of who didn’t qualify for HTS doesn’t make it any better.
I’ve seen waiters working in all the top restaurants here in London without any papers for years and years ……!
It’s not that there isn’t another way forward but employers prefer to keep breaking the law as they know they will get away with it 9 out of 10 times, thus even if they ever have to pay one £10,000 fine they have avoided ten others and life is a Party for them!
If I was in the UKBA i’d have hundreds of people rounded up on a daily basis.
With the schools: how odd that LSE can have an HTS with its connections to Saif Gaddafi and the local poor person’s school which might want to teach some overseas people can’t do it?
In Hounslow I visited a school which was trying to bring 600 pakistanis over on student visas prior to the April 2011 rule change. But the ECM in Abu Dhabi would have none of it. So I guess even the poor UKBA lot, untrained for their jobs as they might be, have some things right.
Leaving the ECHR has nothing to do with any of these administrative problems. It’s just impossible to ‘control’ immigration !!!
As Lord Brown kept saying with despair in the ST (Eritrea)hearing:
“Once they’re in…. you just can’t ship em out” !!!
I though that was just hilarious ….
Surely the tribunal and courts can’t refuse to consider arguments advanced under Article 8 even if they were not mentioned in the original application.
They are after all public bodies under S6(1) of the HRA and therefore they have to comply with human rights.
Stuart,
I do not think that, although I stand to be corrected, the decision in Lamichane applies to human rights arguments not cited in the original application.
It applies to prevent citation of a second and separate basis of stay in the UK under immigration rules from that made in the original application.
In this case, it was a Long Residence claim(immigraion category 1) which was the subject of the original refused application. On appeal, it was contended that the appellant satisfied the immigration rules under Tier 4 of the PBS (immigration category 2 as it were).
This, as I understand it, does not affect somebody who makes an application under, for example, paragraph 284 of the Immigration Rules as a spouse but raises Article 8 arguments on appeal (even in the absence of a s.120 notice) either as a standalone Article 8 argument or on the basis of the now seemingly dead ‘near-miss’ principle.