Nirula, R (on the application of) v First-Tier Tribunal (Asylum & Immigration Chamber) & Anor

A human rights claim enables an in-country immigration appeal under section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 only if it was made to the Secretary of State before the appeal was instituted. First raising the claim in a notice filed with the First-tier Tribunal is insufficient.

The restriction on an in-country appeal is an adjudicative bar rather than an absence of constitutive jurisdiction. A tribunal may raise the bar of its own motion, invite submissions and decide whether it applies. The Secretary of State may elect not to rely upon it. A notice stating that an appeal may be brought “After removal” sufficiently raises the objection.

The Secretary of State decided to remove the appellant, a Nepalese national, as an illegal entrant who had obtained entry by deception. The decision notice stated that he could appeal “After removal”. He first advanced an article 8 claim concerning his family and private life in his notice of appeal to the First-tier Tribunal.

The Tribunal raised jurisdiction of its own motion and decided that it could not hear the appeal while the appellant remained in the United Kingdom. The Administrative Court granted permission to seek judicial review but refused relief. It held that the human rights claim had been made too late and that the jurisdictional objection had sufficiently been raised.

The appeal concerned when a human rights claim must be made for section 92(4) of the Nationality, Immigration and Asylum Act 2002, whether the Tribunal could raise the in-country appeal restriction itself, and whether the words “After removal” sufficiently invoked that restriction.

1. Appeal dismissed. Section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 requires the appellant to have made the human rights claim before instituting the appeal. The perfect tense in “has made” indicates a prior claim. This permits the Secretary of State to decide the human rights issue before the appeal is determined, so that the decision can form part of the appeal.

2. Section 113 reinforces that construction because it defines a human rights claim as one made to the Secretary of State. A notice of appeal is filed with the First-tier Tribunal. The Tribunal’s duty to forward that notice to the Secretary of State neither converts it into a prior claim nor overcomes the timing requirement. The absence of a place formally designated for making the claim does not deprive the remainder of the definition of effect.

3. The decisions in SS (Turkey) 2006 UKAIT 00077 and R (Rainford) v Secretary of State [2008] EWHC 2474 (Admin) were approved. Jisha v SSHD [2010] EWHC 2043 (Admin) concerned the distinct treatment of a subsequent claim under the Immigration Rules and was too remote to assist.

4. Anwar v SSHD [2011] 1 WLR 2552 was a considered and binding decision that the out-of-country restriction operates as an adjudicative bar once taken, rather than removing the Tribunal’s constitutive jurisdiction. Its reasoning formed part of its ratio. It did not decide whether the Tribunal could raise the issue of its own motion.

5. A tribunal is entitled, and well advised, to raise doubts about its jurisdiction, invite submissions and decide the question. Anwar did not require the objection to originate with the Home Office. The Secretary of State may expressly elect not to rely on the bar, in which event the Tribunal may proceed. Here the Tribunal properly raised the issue, received submissions and found that the appellant remained in the United Kingdom.

6. In any event, the Secretary of State had sufficiently taken the point by stating in the decision notice that the appeal could be brought “After removal”. The Court did not determine the Administrative Court’s alternative discretionary reasons for refusing relief, because those matters were unnecessary to the dismissal.

1. Court of Appeal (Civil Division): Dismissed the appeal unanimously. It upheld the refusal of judicial review and confirmed that the First-tier Tribunal had properly declined to hear the in-country appeal.

2. Administrative Court: Mr Ockelton, sitting as a Deputy High Court Judge, granted permission to seek judicial review but refused relief. He held that the human rights claim had to precede the notice of appeal and that the jurisdictional objection had sufficiently been taken.

3. First-tier Tribunal (Asylum and Immigration Chamber): Immigration Judge Bennett raised jurisdiction, received submissions and decided that the Tribunal could not hear the purported appeal while the appellant remained in the United Kingdom.