Nirula v First Tier Tribunal

For an in-country appeal under section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002, the appellant must have made the human rights claim before lodging the notice of appeal. A claim made in the notice itself cannot create the right of appeal. The relevant appeal rights are determined when the immigration decision and notice are given; a later claim does not retrospectively alter them. A tribunal must determine whether the jurisdictional facts exist and cannot confer jurisdiction by proceeding despite their absence. The Administrative Court also indicated that observations in Anwar & Adjo v Secretary of State for the Home Department concerning waiver of the statutory bar were obiter and, if necessary, would not be followed.

The claimant, a Nepali national, was served with a decision removing him as an illegal entrant. The notice stated that any appeal could be exercised from outside the United Kingdom. While remaining in the United Kingdom, he lodged a notice of appeal relying on Article 8 of the Convention. The First-tier Tribunal decided that it had no jurisdiction because no human rights claim had previously been made to the Secretary of State. The claimant sought judicial review, arguing that the notice of appeal itself constituted a human rights claim and that the jurisdictional objection had not been properly raised. The central issues were the meaning of “has made” in section 92(4)(a) and the Tribunal’s jurisdiction and procedure.

1. Application dismissed. The First-tier Tribunal had no jurisdiction to hear the purported in-country appeal and was entitled, indeed bound, to so decide. The claimant was in the United Kingdom and the relevant removal decision was not one carrying an in-country appeal right under section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002.
2. “Has made” required the human rights claim to precede the notice of appeal. Section 113 defined a human rights claim as one made to the Secretary of State at a designated place. The forwarding of a notice of appeal by the Tribunal did not mean that the claim was made to the Secretary of State. Nor could the appeal itself create the right to appeal.
3. The statutory scheme showed that the existence and exercise of an appeal right were determined when the immigration decision was notified. Section 105 contemplated that the notice would state whether an appeal existed and how and when it could be exercised. A claim made after the decision could not retrospectively change those matters. A later claim made to the Secretary of State could instead lead to withdrawal of the original decision and the making of a new decision carrying an in-country appeal right, subject to certification.
4. The claimant’s procedural argument also failed. There was no rule that a tribunal must proceed once satisfied that a jurisdictional fact was absent, or that failure to invite further submissions from a party affected its jurisdiction. The notice of decision and other documents should be considered, but the parties’ positions were not fixed by pleadings.
5. The judge treated the relevant observations in Anwar & Adjo v Secretary of State for the Home Department as obiter. Although the distinction between constitutive and adjudicative jurisdiction was recognised, the judge expressed substantial reservations about the view that the statutory bar operated only if taken by the Secretary of State. If necessary, he would have departed from those observations.
6. In any event, relief would have been refused in the court’s discretion because of delay, the available appeal route, the absence of properly particularised evidence, and the abusive character of proceedings apparently brought to delay removal. The claimant was ordered to pay the defendant’s costs. Permission to appeal was refused.

• First-tier Tribunal (Immigration and Asylum Chamber): on 19 January 2011, held that it had no jurisdiction to hear the claimant’s purported in-country appeal.
• High Court (Administrative Court): granted permission for judicial review but dismissed the substantive claim, refused permission to appeal, and ordered costs against the claimant.