LB (Jamaica) v Secretary of State for the Home Department

Where an immigration appeal under section 82(1) of the Nationality Immigration and Asylum Act 2002 remains pending before the Court of Appeal, a grant of leave to enter or remain engages section 104(4A). The appeal is treated as abandoned and the Court of Appeal loses jurisdiction.

The expression “an appeal under section 82(1)” encompasses the complete appellate process identified by section 104(2), including an appeal from the Upper Tribunal to the Court of Appeal. Earlier authority concerning the differently structured statutory regime under the Immigration and Asylum Act 1999 does not govern the construction of section 104.

The appellant claimed to have completed ten years’ lawful residence and challenged the refusal of further leave. His appeals to the First-tier Tribunal and Upper Tribunal failed. Permission was then granted for an appeal concerning whether leave continued under section 3C of the Immigration Act 1971 counted towards lawful residence.

The Secretary of State subsequently granted indefinite leave to remain. She maintained that section 104(4A) of the Nationality Immigration and Asylum Act 2002 consequently treated the appeal as abandoned. The central issue was whether that provision extended to the appeal pending in the Court of Appeal, whose immediate statutory source was section 13 of the Tribunals, Courts and Enforcement Act 2007.

1. The appeal was dismissed unanimously for want of jurisdiction. Section 104 of the Nationality Immigration and Asylum Act 2002 treated the pending appeal as abandoned when the appellant was granted leave to remain. No question therefore arose about exercising a discretion to determine an academic appeal.

2. The expression “an appeal under section 82(1)” in section 104(4A) had to be read with section 104(1) and (2). Those provisions maintained the original immigration appeal as pending until it was finally determined, withdrawn or abandoned. They expressly included the periods during which permission to appeal could be sought, permission had been granted, or the resulting appeal awaited determination.

3. The appeal pending in the Court of Appeal formed part of that continuing section 82(1) appeal. Although the immediate right to appeal arose under section 13 of the Tribunals, Courts and Enforcement Act 2007, that provision maintained the life of the original immigration appeal. Abandonment under section 104(4A) therefore carried with it abandonment of the Court of Appeal proceedings.

4. Sherazi v Secretary of State for the Home Department [2003] EWCA Civ 1562 was distinguished. The former Immigration and Asylum Act 1999 drew an important contrast between appeals under Part IV and “further appeals”. Its abandonment provision referred to a pending appeal under a provision of that Part. The 2002 Act instead contained an unequivocal statutory provision encompassing the continuing appeal process, including an appeal to the Court of Appeal.

5. The court did not determine whether section 3C leave counted towards ten years’ lawful residence. Permission to appeal to the Supreme Court was refused, and no order was made as to costs.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously for want of jurisdiction because the grant of leave caused the pending appeal to be treated as abandoned under section 104(4A) of the Nationality Immigration and Asylum Act 2002. Permission to appeal to the Supreme Court was refused.
2. Upper Tribunal: The appellant’s further appeal against the refusal of leave failed.
3. First-tier Tribunal: The appellant’s appeal against the refusal of an extension of student leave failed.