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Section 85A commencement order doesn’t mean what it says
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Far too late to be of use to anyone, the Upper Tribunal has held that the controversial commencement of section 85A did not affect appeals that had already been lodged. The case is Shahzad (s. 85A: commencement) Pakistan  UKUT 81 (IAC). It was heard by a panel including the Deputy President, Upper Tribunal Judge Ockelton, on 4 October 2011 and only promulgated on 13 March 2012. Counsel was, almost inevitably, Zane Malik. Incidentally, Zane’s first Treasury brief is next week against me and several others in a country guidance case on Ahmadis in Pakistan – should be fun.
The tribunal is highly critical of the draftsman of the commencement order, who managed to refer to a non-existent tribunal and an extinct species of judge, then uses this as an excuse to ignore that paragraph of the commencement order because of its unfair, inconsistent and plain odd effects. The official headnote reads as follows:
On its true construction, Article 2 of the UK Borders Act 2007 (Commencement No 7 and Transitional Provisions) Order 2011 amends s85 of the Nationality, Immigration and Asylum Act 2002 and introduces s85A in the 2002 Act only in relation to applications made to the Secretary of State on or after 23 May 2011.
The tribunal records that it was not asked to adjudicate on the lawfulness of the commencement order. It is at least arguable that while the tribunal cannot declare secondary legislation unlawful, it can disregard it if it thinks it is unlawful. EN (Serbia) is authority for it being preferable for the courts to decided lawfulness but the tribunal arguably having the power to do so if it chose.
There will presumably be literally no-one who still has an outstanding appeal that would benefit from the tribunal’s very learned learning in this case. The only potential remedy would appear to be an out of time appeal to the Court of Appeal, but I cannot imagine such a case would pass even the modified second appeals test.