MSU (S.104(4b) notices) Bangladesh [2019] UKUT 412 (IAC) considers section 104 of the Nationality, Immigration and Asylum Act 2002 (as heavily amended), which says that an appeal shall be treated as abandoned if the appellant is granted leave to enter or remain.

For many appellants section 104 won’t be a problem: they have been granted the right to stay in the UK and their appeal no longer matters. But in a refugee or international protection based appeal, it can happen that the Home Office will grant an inferior type of leave to remain instead of asylum.

Inferior? A grant of leave based on the right to family life, for example, is shorter and more susceptible to be affected by changes in a migrant’s personal life in the UK (such as a relationship breakdown). It will also cost more in subsequent application fees to extend and settle.

So there might be good reason to want to carry on with the appeal, often known as an “upgrade appeal”, in order to secure a stronger residence status.

How to prevent abandonment

There is a mechanism by which an appellant can do that: by giving notice under section 104(4B).

If the appeal is before the First-tier Tribunal the notice has to be received by the tribunal and each other party within 28 days of the date on which the appellant was sent the decision granting leave to enter or remain.

If the appeal is before the Upper Tribunal the notice must be received within thirty days of the date the decision was sent (28 days if the notice was delivered personally or electronically).

Note that the clock starts running when the decision granting leave is “sent” to the appellant — and the Home Office is well known for sending letters with dates that suggest they have been sent weeks before your client receives it.

So far so good, but the tribunal has had to grapple with a number of complications.

No Practice Directions apply to a section 104 notice

The first issue was that the act of giving section 104(4B) notice by the appellant has to be in accordance with the Tribunal Procedure Rules. These rules, in turn, require the notice given by the appellant to be made in accordance with “any relevant” Tribunal Practice Directions.

The tribunal found the available Practice Directions only applied in respect of proceedings to the Upper Tribunal and were woefully out of date and incorrect. So much so, in fact, that the tribunal was able to discount them as being no longer relevant to the giving of notice, whilst observing that relevant Practice Directions had never existed for the First-tier Tribunal in its current form.

The Home Office decision letter template, incidentally, is also wildly out of date. The section intended to provide “important information and advice for claimants” contains numerous errors, including on the time limits for giving notice and even a reference to the Asylum and Immigration Tribunal, which has not existed for a decade. In the words of Mr Ockelton “it is… not easy to excuse ‘Information and Advice’ that is so badly out of date and which specifically denies a number of rights that are in law available to the person to whom the Notice is addressed and mis-states the law applicable to those whose existence it concedes”.

Appeal applications decided without jurisdiction

The next issue concerned the specific timeline in MSU’s case. MSU had been refused asylum by the First-tier Tribunal, but had his appeal allowed on human rights grounds. He lodged an appeal challenging the asylum refusal.

The problem was that one day before the appeal was lodged, the appellant and his family had been granted 30 months’ leave to remain on human rights grounds. This fact was not mentioned in the applications for permission to appeal, but was eventually spotted by the Upper Tribunal. No section 104 notice was given until too late.

The problem here is one of sequence, since the effect of section 104 was to treat the appeal as abandoned unless a notice was lodged by the appellant. However the appellant had, prior to lodging the notice, submitted applications to appeal and the relevant tribunals had decided them. The knotty problems with which the tribunal had to grapple were therefore:

1. What is the status of an appeal in the period after leave has been granted but before a notice to continue the appeal has been lodged. Is the appeal abandoned and then this is reversed? Or is the abandonment retrospectively cured such that the appeal was always pending and abandonment never happened?
2. If the notice is late, can the Upper Tribunal extend time?
3. Given the facts of this case, which tribunal should take responsibility for dealing with the notice to carry on the appeal?

Retrospective effect of section 104 notice

On the first point, the tribunal preferred retrospectivity. The benefit of this approach was that acts carried out by either tribunal which might otherwise have been invalid, since the appeal was abandoned by statute, were subsequently validated. So that was the first issue resolved: an appeal is abandoned when leave is granted, and if a notice under section 104 is given it is as if the abandonment never happened. 

Power to allow late notice

But what about if the notice is given late? In a somewhat silly restriction the Procedure Rules prevented the Upper Tribunal from extending the time limit to receive the notice — whereas the First-tier Tribunal could extend time. The Upper Tribunal got around this by preferring the wide powers afforded by section 25 of the Tribunals, Courts and Enforcement Act 2007. This gives the Upper Tribunal all the powers of the High Court in “all … matters incidental to the Tribunal’s functions”.

First-tier Tribunal handles notice

On the final point, the tribunal considered that as the grant of leave occurred during the currency of First-tier Tribunal proceedings, it should be the body to consider the notice. If the abandonment was confirmed, everything that flowed after that was without jurisdiction. If the notice was accepted, then everything which came later, even if this included a move to the Upper Tribunal following a grant of permission to appeal, was validated and could continue.