Anwar & Anor v Secretary of State for the Home Department

A statutory restriction preventing an immigration appeal from being pursued while the appellant remains in the United Kingdom concerns adjudicative, rather than constitutive, jurisdiction. The tribunal may embark upon the appeal, and the restriction bars further proceedings only if the Secretary of State takes the point.

A human rights claim does not independently create a right of appeal. Section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 applies only where an appeal already exists against an immigration decision. Refusal of a human rights claim is not itself such a decision, and the continuing existence of earlier removal directions does not create a new appealable decision.

Three linked appeals concerned the jurisdiction of the immigration tribunal. Removal decisions alleging deception had been made against Mr Anwar and Ms Pengeyo under the Immigration and Asylum Act 1999. Immigration judges rejected the allegations, but the tribunal on reconsideration held that their appeals could not be pursued while they remained in the United Kingdom. Ms Pengeyo's appeal was compromised, while Mr Anwar's continued until the Secretary of State withdrew the decision and undertook not to remake it.

Mr Adjo, an overstayer, had previously failed in an appeal against removal. A later human rights application was refused, although an immigration judge allowed his purported appeal under article 8. On reconsideration, the tribunal held that the refusal was not an immigration decision and carried no right of appeal.

The court considered whether an in-country restriction deprived the tribunal of jurisdiction irrespective of objection, and whether a human rights claim could itself supply a right of appeal.

1. The two surviving appeals were dismissed unanimously. Mr Anwar's appeal was dismissed solely because the Secretary of State had withdrawn the deception decision and undertaken not to retake it. Mr Adjo had no appealable immigration decision to which his human rights claim could attach.

2. The tribunal possessed constitutive jurisdiction to embark upon an appeal concerning whether leave had been obtained by deception. The requirement that the appellant leave the United Kingdom concerned its adjudicative jurisdiction. Whether that requirement applied could involve questions of fact and law which the tribunal was competent to determine. Accordingly, the tribunal could not be treated as lacking jurisdiction at the outset.

3. Section 92(1) of the Nationality, Immigration and Asylum Act 2002 provided a bar which the Secretary of State could invoke or waive. Unless the out-of-country point was taken, the immigration judge was bound to proceed. Once it was properly taken, it barred the proceedings. The court applied the distinction between constitutive and adjudicative jurisdiction approved in Carter v Ahsan [2007] UKHL 51 and drew an analogy with statutory limitation and requirements for permission to commence proceedings.

4. The decision to invoke the bar was itself amenable to judicial review. Taking it to suppress examination of an unfounded and procedurally unfair allegation of deception could amount to a serious abuse of power. The court also expressed, without deciding the issue, a shared concern that decisions taken in defiance of basic fairness and accepted moral standards might be nullities.

5. Section 92(4)(a) did not create an appeal merely because a person had made a human rights claim. It applied only where there was already an appeal against an immigration decision under section 82(1). Refusal of a human rights claim was not, by itself, an immigration decision. The continued existence of removal directions after dismissal of an earlier appeal did not generate a new decision or revive a right of appeal. ZA (Nigeria) and SM (Congo) [2010] EWCA Civ. 926 disposed of the contrary argument and confined BA (Nigeria) [2010] 1 AC 444 to cases in which an appealable immigration decision existed.

1. Court of Appeal (Civil Division): The two surviving appeals were dismissed unanimously. Mr Anwar's appeal had become academic following withdrawal of the decision and an undertaking not to remake it. Mr Adjo had no appealable immigration decision. The court had previously held in [2009] EWCA Civ 1495 that it had jurisdiction to determine the tribunal's jurisdiction.

2. Asylum and Immigration Tribunal on reconsideration: The appeals of Mr Anwar and Ms Pengeyo were dismissed because their immigration judges were held to have lacked jurisdiction over in-country appeals. Mr Adjo's appeal was dismissed because there was no appealable immigration decision.

3. Asylum and Immigration Tribunal at first instance: The immigration judges rejected the deception allegations against Mr Anwar and Ms Pengeyo. A different immigration judge allowed Mr Adjo's purported appeal under article 8.