Baldha and Dhamodharan v Secretary of State for the Home Department [2020] EWCA Civ 1494
In these two applications for permission to appeal – adjourned into court by order of Hickinbottom LJ – the Court of Appeal considered two points. First, in what circumstances can an appellant rely upon new points not pleaded in the original grounds for judicial review? Secondly, how far does an appellant’s claimed right to be returned to the UK after having voluntarily left because of an admittedly unlawful decision support the application to amend?
Hickinbottom LJ’s ex tempore judgment in these two applications indicates the answer to the first question (when can an appellant rely on new points?) is “not unless you can show significant prejudice”. This is even if the respondent accepts the decision appealed against is unlawful due to at least one of the proposed amended grounds of appeal (in these cases, procedural unfairness). The judgment suggests the answer to the second question (to what extent does an admittedly unlawful decision support the application to amend?) is “not much”. This is even if the effect of the unlawful decision pursuant to which the appellant left the UK was to effectively deprive them of the opportunity to pursue an in-country appeal, contrary to their rights at common law and under primary legislation.
In the two cases here considered it was accepted by the respondent Secretary of State for the Home Department (“the SoS”) that her decisions refusing applications for indefinite leave to remain (ILR) were unlawful because they were procedurally unfair. She was forced to that position because of the Court of Appeal’s decision in R (Balajigari and Ors) v Secretary of State for the Home Department [2019] EWCA Civ 673, [2019] 1 WLR 4647 (handed down on 16 April 2019).
As a result, the SoS agreed to withdraw the decisions refusing ILR in the two cases, to pay the appellants’ costs from the date procedural fairness was said to have been raised by each of them, and to facilitate the appellants’ re-entry to the UK. However, this was only agreed to in the event that the applicants’ applications for ILR were allowed after they were reconsidered following a procedurally fair “minded to refuse” process. The applications would either be allowed because the respondent granted ILR (after the minded to refuse process), or because the First-tier or Upper Tribunal held that to refuse entry clearance would be contrary to section 6 of the Human Rights Act 1998 after an appeal from the refusal of a human rights claim made as part of the “minded to refuse” process.
The appellants were not satisfied with this. In light of the concession that the decisions pursuant to which they were compelled to leave the UK were unlawful, they wished to argue the respondent should facilitate their return forthwith. They submitted the SoS was obliged to do so to undo the injustice caused by her admittedly unlawful decisions. These, they argued, not only caused them prejudice by compelling them to endure the “minded to refuse” process from outside the UK (where they might have more limited access to documents and advice), but also deprived the appellants of their statutory right to pursue an in-country appeal from an adverse decision resulting from that procedure, and to the benefit of an extension of leave pursuant to section 3C of the Immigration Act 1971. Under the statutory scheme for immigration appeals the appellants could only bring an appeal from within the UK if they made a human rights claim as part of the “minded to refuse” procedure while they were in the UK (see subsections 92(3) and (4) of the Nationality, Immigration and Asylum Act 2002).
Because the decisions of the Upper Tribunal refusing permission to apply for JR were taken before the Court of Appeal promulgated its decision in Balajigari (as was the filing of the notices of appeal) and the SoS only conceded that the decisions challenged were unlawful following Balajigari, the appellants needed an order from Hickinbottom LJ permitting them to amend their grounds of appeal and detailed grounds of review to properly plead their case for a mandatory order requiring the respondent to facilitate their return.
Determination
Despite the respondent’s concession that the decisions challenged were unlawful, the applications to amend were refused. The judge thought there was insufficient disadvantage in leaving the appellants to pursue the “minded to refuse” procedure and an appeal from an adverse decision resulting from it from outside the UK.
Reference was made to the observations of Lord Burnett of Maldon CJ in R (FB (Afghanistan) and Medical Justice) v Secretary of State for the Home Department [2020] EWCA Civ 1338 at [198]-[199], who took the position that remote hearings would often be fair and would often be available to out-of-country appellants, so that evidence to support any contrary suggestion would be required in each case. Further, and in the absence of evidence of specific obstacles to doing so, the fact the appellants had managed to instruct lawyers in the instant applications suggested to the court they could fairly pursue out-of-country appeals.
The court also thought Parliament intended that the appellants should lose the benefit of section 3C of the Immigration Act 1971 in the circumstances, given the terms of subsection 3C(3).
Comment
The Court of Appeal’s decision and its reasoning is questionable. Granting the applications to amend was not contrary to “the will of Parliament as expressed in section 3C(3) [of the Immigration Act 1971]”. As the appellants pointed out to the Court, if they were returned to the UK before the unlawful decisions were formally quashed, section 3C(3) would not bite. More fundamentally, Parliament could not have intended that the appellants be compelled to forgo the benefit of section 3C by unlawful decisions.
Furthermore, in the circumstances of these two applications for permission to appeal the effect of the SoS’s admittedly unlawful decisions was to deprive the appellants of their entitlement – by a combination of common law and statute – to make a human rights claim and then pursue an in-country appeal from its refusal. This was just because, to their credit, they elected to leave the UK voluntarily, thereby showing creditable respect for immigration law.
It is submitted that the unjustified deprivation of an opportunity to pursue an in-country right of appeal should be given great weight in considering whether to amend pleadings to seek a mandatory order requiring the SoS to return a person to the UK, as should the fact the decision that compelled the applicant to leave is (admittedly) unlawful: see R (L) v. Secretary of State for the Home Department (return of person removed: discretion) [2020] UKUT 267 (IAC).
This note was produced by Michael Biggs of 12 Old Square