AS (Afghanistan) v Secretary of State for the Home Department & Anor

Where a person responds to a notice under section 120 of the Nationality, Immigration and Asylum Act 2002, the Tribunal must consider any additional matter which constitutes a statutory ground of appeal against the relevant immigration decision. The expression “the decision appealed against” in section 85(2) refers to the category of immigration decision defined by section 82(2), rather than to the particular Immigration Rule or factual basis on which the Secretary of State refused the original application.

The section 120 procedure is designed to bring all grounds for challenging that decision into one appeal. Section 3C(4) of the Immigration Act 1971 does not prevent that result where the Secretary of State has chosen to serve a section 120 notice.

Two appellants had been refused variations of leave to remain and each had received a section 120 notice. In response, each relied on a further basis for leave under the Immigration Rules which had not formed the basis of the original application. The Asylum and Immigration Tribunal held that it lacked jurisdiction to consider those new bases.

AS also challenged findings that her proposed business did not satisfy the relevant business-immigration requirements. Her challenge followed reconsideration of Immigration Judge James’s determination by Senior Immigration Judge Waumsley. The central issue was whether section 85(2) of the Nationality, Immigration and Asylum Act 2002 required the Tribunal to consider all additional statutory grounds raised in response to a section 120 notice, or only grounds connected with the original basis of refusal.

1. Appeal allowed and remitted in AS’s case. Lord Justice Moore-Bick and Lord Justice Sullivan held that the Tribunal had wrongly declined jurisdiction over the additional grounds raised in response to the section 120 notice. Lady Justice Arden dissented on that issue.

2. Sections 82, 84, 85(2), 96(2) and 120 of the Nationality, Immigration and Asylum Act 2002 form a coherent one-stop procedure. Section 120 requires an appellant to state any additional reasons and grounds for remaining. Section 85(2) correspondingly requires the Tribunal to consider a matter so raised where it is a statutory ground of appeal against the immigration decision in issue. The decision is the relevant category of immigration decision under section 82(2), rather than the particular factual or Rule-based reason for refusal.

3. The Tribunal therefore had to consider the appellants’ additional Immigration Rules grounds even though those grounds differed from their original applications. The purpose is to avoid successive applications and appeals. The fact that the Tribunal may decide an additional issue does not defeat that construction; service of a section 120 notice is within the Secretary of State’s choice.

4. Section 3C(4) of the Immigration Act 1971 did not require the contrary result. It restricts a further application made by the individual while statutory continuation of leave operates. It does not prevent the consequences of a section 120 notice which the Secretary of State elects to serve.

5. AS’s separate challenge to the business-rule findings failed. Even if the Immigration Judge erred in treating the proposed business as insufficiently established, the findings that its structure, funding, viability and capacity to maintain AS were not proved independently justified refusal. The error was immaterial. AS’s additional grounds were remitted to the Tribunal. NV’s appeal was treated as abandoned after her departure from the United Kingdom, so no substantive order was made in it.

• Court of Appeal (Civil Division): AS’s appeal was allowed on the section 85(2) jurisdiction issue and remitted for consideration of her additional grounds. NV’s appeal was treated as abandoned under section 104(4) of the Nationality, Immigration and Asylum Act 2002.

• Asylum and Immigration Tribunal: Senior Immigration Judge Waumsley upheld Immigration Judge James’s decision that the Tribunal had no jurisdiction to consider AS’s later International Graduate Scheme ground. The Court of Appeal disagreed on jurisdiction but rejected AS’s separate challenge to the business-rule findings.