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R Nirula v First tier Tri
      
                                               R (Nirula) v First-tier Tribunal


R (Nirula) v First-tier Tribunal: 

A person may not appeal against an immigration decision from within the United Kingdom in reliance on section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 unless he made a human rights claim or an asylum claim to the Secretary of State before instituting the appeal; where the claim is made for the first time in the notice of appeal, it is open to the First-tier Tribunal itself to take the jurisdictional point.

The Court of Appeal so held in a reserved judgment dismissing the appeal by the claimant, Mahesh Nirula, from the order of Mr C M G Ockelton, sitting as a Deputy Judge of the High Court [2011] EWHC 3336 (Admin) , dated 19 November 2011, by which he dismissed the claimant’s application for judicial review of the decision of Immigration Judge Bennett sitting in the First-tier Tribunal (Asylum and Immigration Chamber), dated 17 January 2011, that the tribunal lacked jurisdiction to hear an appeal by the claimant under section 82(1) of the 2002 Act against the decision of the interested party, the Secretary of State for the Home Department, to remove him from the United Kingdom while he remained in the country. The claimant, a Nepalese national, had admitted having used deception to enter the United Kingdom, but in his notice of appeal to the First-tier Tribunal he had contended that the Secretary of State’s decision to remove him as an illegal entrant was incompatible with his rights under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms by reason of his established family and private life. The immigration judge had raised the issue of jurisdiction on his own initiative at the hearing of the appeal.

LONGMORE LJ said that the use of the auxiliary perfect tense in the phrase “has made … a human rights claim” in section 92(4)(a) of the 2002 Act strongly implied that the claim had to precede any appeal and that had to mean the institution of an appeal rather than the date of hearing. Parliament had presumably chosen those words in order to give the Secretary of State the opportunity to give a decision on any human rights claim before the appeal so that her decision on that question could become part of the appeal. This orderly process would be disrupted if, without prior notification to the Secretary of State, an appellant could simply put a human rights claim in his notice of appeal. This consideration was reinforced by the definition of a human rights claim in section 113 of the 2002 Act as “a claim made by a person to the Secretary of State … ”. A notice of appeal against a decision for removal was addressed not to the Secretary of State but to the First-tier Tribunal. It was unnecessary to decide whether the judge’s view that the claim had to be made even before a notice of decision was given by the Secretary of State was correct. The question whether the tribunal was entitled to take a point on its own jurisdiction of its own motion remained open notwithstanding the decision of the Court of Appeal in Anwar v Secretary of State for the Home Department [2011] 1 WLR 2552. What that case did say was that the Secretary of State could choose not to take any jurisdictional objection if she so wished. In the present case her notice of decision expressly stated that the claimant had a right of appeal which he could exercise “after removal”. The judge had correctly considered that, if it was necessary for the Secretary of State to take the jurisdiction point, she had taken it then. However, any tribunal was entitled (and indeed well advised) to air any doubts it had about its jurisdiction and invite submissions on that question and then decide it. The jurisdiction point could be taken by the First-tier Tribunal just as much as by the Secretary of State. Accordingly, the claimant’s appeal should be dismissed.

DAVIS LJ and SIR STEPHEN SEDLEY agreed


R (Nirula) v First-tier Tribunal