Supreme Court Judgement on s120 and near misses.

A very interesting new judgement from the Supreme Court has been published. It is extremely technical but resolves some quite difficult questions. The case is Patel & Ors v Secretary of State for the Home Department [2013] UKSC 72 . Of perhaps greater note is that much of what is said will become moot if the new immigration bill becomes law.

The indomitable Zane Malik was counsel for the appellants. Mr Malik has been involved in dozens of highly complex, technical decisions regarding the deeper recesses of immigration law. This new decision deals with several confusing issues which have conflicting precedents.

Lord Carnwath summarised the points at issue:

Patel

i) Whether there is an obligation on the Secretary of State to issue a decision to remove at the same time as or immediately after refusing an individual's application for variation of leave to remain in the United Kingdom.

ii) Whether there is an obligation on the Secretary of State to issue a one-stop notice under section 120 of the 2002 Act when refusing an individual's application for variation of leave to remain in the United Kingdom.

iii) Whether the Secretary of State's refusal to vary an individual's leave to remain in the United Kingdom is unlawful if it is issued in isolation from a one-stop notice or a decision to remove.

Alam/Anwar

iv) Whether the conclusion of the majority in AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076[2011] 1 WLR 385, that an appeal to the FTT covers not only any ground before the Secretary of State when she made the decision under appeal but also any grounds raised in response to a one-stop notice issued under section 120 of the 2002 Act, even if they had not been the subject of any decision by the Secretary of State and did not relate to the decision under appeal, is correct.

v) Whether the statements and evidence filed by Mr Alam and Mr Anwar to the FTT amounted to "additional grounds" under section 120 of the 2002 Act which the FTT was obliged to consider and determine, notwithstanding the bar in section 85A of that Act.

vi) In an article 8 case, when balancing the demands of fair and firm immigration control against the disruption to the family or private life of a person if removed for non-compliance with the Immigration Rules, whether the nature and degree of the non-compliance is significant or, as the Court of Appeal has held (in Miah v Secretary of State for the Home Department[2012] EWCA Civ 261[2013] QB 35), irrelevant.

All quite esoteric points. In respect of the first 3 points the Supreme Court found that the statutory powers to issue notices of intention to remove are precisely that; powers. The relevant acts do not impose a duty upon the Secretary of State to do so. The effect of this ruling to applicants is perhaps not immediately clear. It is important to consider the background facts. The appellants here, the Patels, received a decision refusing to vary their leave to remain. They did in fact possess a statutory appeal right against this decision (an appeal which failed on the facts). The point at issue was an assertion that the entire process was fundamentally flawed as a matter of law because of a failure to also issue immigration decisions to remove the appellants. This argument was unsuccessful. For applicants applying with extant leave it means little, they will undoubtedly already possess for the time being (before the new Immigration bill becomes law) a right of appeal.

This aspect of the appeal was a clever attempt to resolve the matter in the Patel's favour by attacking the statutory background to their decisions. There was support for the position from the case-law. The Supreme Court however considered that the Secretary of State was under no obligation to issue immigration decisions to remove, nor to issue what is known as a s120 Statement.

Of note (but only to very pedantic immigration lawyers) is the reference to the statutory amendment of s47  of the Immigration, Asylum and Nationality Act 2006 in May 2013 (which basically resolves a badly drafted provision).

Points 4, 5 and 6 are perhaps more interesting. Section 120 of the Nationality, Immigration and Asylum Act 2002 has generated a significant amount of highly complex and difficult law. Much of this has been directed to reconciling the apparent effect of s120 which permits appellants to raise additional grounds at appeal with restrictions on appellants relying upon evidence at the tribunal which post dates an application.

The Supreme Court found that whilst the blocking effect of s85 of the 2002 Act (which restricts the tribunal from considering evidence post dating an application in respect of a decision under the Points Based System) was conceded by the appellants, nevertheless it did not operate when a ground of appeal was not asserting compliance with the rules under the Points Based System (PBS). As a result someone who misses a provision under the PBS cannot rectify it by providing evidence to the tribunal, not provided with the application to the Home Office, to say they now meet the rules. However they can lodge the evidence in respect of a different ground of seeking to remain, and the tribunal must consider it.

Its worth explaining this. S120 is intended to have the tribunal deal with all outstanding claims an appellant can make. The Secretary of State issues a notice (but does not have to) inviting the appellant to disclose any additional reasons for wishing to remain in the UK. The effect of this notice is that the tribunal must consider additional grounds raised by the appellant which can even constitute compliance with a different rule than under which they applied. It also has the effect of preventing appellants on relying upon grounds later that they should have raised at an earlier stage.

The fly in the ointment is that many rules (mainly under the PBS) require documents to be provided at the date of application, and in any event the effect of s85 is to prevent an appellant trying to meet the rules by placing evidence before the tribunal they had not sent to the Home Office when they applied.

What the Supreme Court was concerned with, and it is a clever argument, is whether a PBS applicant could use a s120 notice to rely upon an additional ground and by an indirect route have evidence accepted for consideration by the tribunal that they (but for s85) would have met the PBS rules. Point 6 was therefore concerned with the vexed question of whether an appellant who has narrowly failed to meet the rules can then succeed on the basis that their right to protection from interference in their private and family life is being disproportionately affected. The disproportionality arises from the argument that the appellant did in fact substantively meet the rules but for a technical provision in the legislation.

This is a frequent issue in immigration appeals. Often compliance with a rule is a hairs breadth away, for reasons of law or evidence. If that is the case, that there is a 'near miss', does that reduce the weight to be afforded to the decision to refuse? Is the justification to refuse reduced?

Again there is a complex background of prior decisions which the Supreme Court considers. Lord Carnwath indicates, whilst expressing that there is no 'near miss' principle, that the 'context of the rules may be relevant to the consideration of proportionality.' Delphic perhaps, but it does not entirely close the door to such arguments.

Lord Mance highlights the effect of the imminent bombshell of the new act:

"if we were to disagree with the majority approach in AS, that would raise a problem of precedent for lower courts, but since I would on balance also favour leaving the majority view undisturbed, that problem does not arise. In fact, it appears that the whole area of appeals is likely to be reshaped by the Immigration Bill 2013 (HC Bill 110), so that the majority approach in AS and any view we express about the correct approach are likely to become irrelevant in future cases."

On one hand this points to an understanding of the law which will be redundant and useless in the near future. However equally the new Immigration Bill adopts a similarly tortuous approach to drafting as its precedent legislation. Understanding what has preceded it will be of great assistance dealing with the new law. The Supreme Courts position on 'near misses' also resolves a long debated question for the time being, and perhaps one of the most frequently raised issues in immigration law. It may not actually resolve it in a way which favours applicants but does at least leave the door ajar.

It will be an issue which keeps arising. Such arguments are in sharp focus when an applicant faces the termination of several years residence based on the failure to meet a highly complex set of rules by minuscule margins of non-compliance.