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Section 104 abandonment still kicks in for appeals resurrected by Cart judicial review


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The Upper Tribunal has again considered section 104 of the Nationality, Immigration and Asylum Act 2002. Following on from the case of MSU, which I wrote about here, we have Aziz (NIAA 2002 s 104(4A): abandonment) [2020] UKUT 84 (IAC). The official headnote reads:

Where a person brings an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 and is then given leave to remain in the United Kingdom, the effect of section 104(4A) is to cause the appeal to be treated as abandoned (subject to section 104(4B)), whether or not the appeal was pending on the date of the grant of leave.

Section 104(4A) has the effect of abandoning an immigration appeal when the appellant is granted leave to remain in the UK. Mr Aziz, although granted leave, had been accused of deception and wanted to carry on with his appeal to clear his name before the tribunal. This being quite a fact-specific scenario, the resulting decision might not have a great deal of general applicability.

The Upper Tribunal had refused permission to appeal on 3 April 2019. Mr Aziz applied for a Cart judicial review of that decision a few days later. In May 2019, he was granted leave to remain.

This fact wasn’t brought to the attention of the High Court or the Upper Tribunal. The High Court decided the Cart review in Mr Aziz’s favour, quashing the Upper Tribunal’s refusal of permission to appeal, and the case came again before the tribunal. In section 104 terms, it became “pending” once again.

In due course it became clear that the appellant had in fact been granted leave by the Home Office. Unlike in MSU, there were no protection grounds, and so the appellant was not able to seek the continuation of the appeal under section 104(4B). Therefore abandonment was on the cards.

Counsel for the appellant sought to avoid abandonment on the ground that the appeal, having been finally determined on 3 April 2019 and not resurrected until 3 September 2019, was not “pending” when the Home Office granted leave to Mr Aziz. At the point leave was granted, there was no appeal to abandon.

The tribunal gave this argument short shrift, concluding that as soon as the appeal sprang back to life, it was summarily dispatched by section 104:

The fact that the appellant’s appeal had ceased to be pending at the point when leave was granted does not mean that, at the moment when the appeal again fell to be treated as pending, following the High Court’s quashing decision, section 104(4A) had to be disregarded.  On the contrary, at the very moment when the appeal again became pending, it fell to be treated as abandoned.

The tribunal was also not happy about the lack of candour in the proceedings, since it was unlikely the matter would have proceeded further had the High Court had been aware of the grant of leave. On the desire of the appellant to clear his name, President Lane noted that there are limits to the way in which a human rights appeal can be used to achieve judicial adjudication on matters of that kind.

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Darren Stevenson

Darren Stevenson is a Legal Director at Wiggin LLP.