Lamichhane v Secretary of State for the Home Department

Nationality, Immigration and Asylum Act 2002 section 120 gives the Secretary of State a discretionary power, rather than a duty, to require a person to state additional grounds for remaining in the United Kingdom. Failure to serve such a notice does not make an immigration decision unlawful.

Section 85(2) extends the Tribunal’s jurisdiction only where the appellant has made a statement in response to a section 120 notice. Without such a notice, the Tribunal cannot consider a ground for granting leave which differs from the ground decided by the Secretary of State. The Secretary of State’s failure to object cannot confer that statutory jurisdiction.

The appellant applied for indefinite leave to remain on the basis of ten years’ lawful residence. The Secretary of State refused the application without serving a notice under section 120 of the Nationality, Immigration and Asylum Act 2002. On appeal, the appellant advanced a new claim for leave as a Tier 4 student.

The First-tier Tribunal treated itself as having jurisdiction over the new claim but remitted it to the Secretary of State. The Upper Tribunal held that, without a section 120 notice, neither tribunal had jurisdiction to consider it and dismissed the appeal.

Before the Court of Appeal hearing, the Secretary of State accepted that the appellant was entitled to Tier 4 leave. Although the individual appeal had consequently become academic, the court decided the issue of general importance: whether a tribunal may consider a new ground for leave which was not before the Secretary of State when no section 120 notice has been served.

1. The appeal was dismissed. The Upper Tribunal had correctly refused to determine the appellant’s Tier 4 claim. Stanley Burnton LJ delivered the judgment, with which Lewison and Maurice Kay LJJ agreed.

2. Section 120 of the Nationality, Immigration and Asylum Act 2002 confers a discretionary power. Its use of “may”, the absence of any defined time for performance, the prescribed form of an immigration decision and the separate treatment in section 96 of cases with and without a notice were inconsistent with a statutory duty. AS (Afghanistan) [2009] EWCA Civ 1079 was binding authority that no duty existed. Its reasoning on that point formed part of the route to the majority’s conclusion about the Tribunal’s jurisdiction.

3. The contrary statement in Mirza [2011] EWCA Civ 159, treating the power as one which had to be exercised unless a lawful reason existed, amounted to judicial legislation and was obiter. Although Sapkota [2011] EWCA Civ 1320 had accepted that Mirza established such a duty, neither decision bound the court on that issue. The court preferred and followed AS (Afghanistan).

4. It followed that a failure to serve a section 120 notice could not render the underlying immigration decision unlawful.

5. A statement under section 120 means a statement made in response to a notice served under that section. Section 85(2) implicitly prevents the Tribunal from considering a new ground of appeal in the absence of such a statement. Accordingly, an appellant who has received no section 120 notice cannot raise a ground for leave which differs from the ground forming the subject of the Secretary of State’s decision.

6. Section 85(2) concerns statutory jurisdiction. Neither the Secretary of State’s failure to object nor the parties’ agreement can enable the Tribunal to determine a new ground where no section 120 notice was served. The Senior Immigration Judge was therefore right to refuse to consider the Tier 4 application.

1. Court of Appeal (Civil Division): By [2012] EWCA Civ 260, dismissed the appeal and upheld the Upper Tribunal’s conclusion that it lacked jurisdiction to determine the Tier 4 ground. The court decided the jurisdictional question despite the Secretary of State having granted the appellant the substantive relief sought.

2. Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeal. It held that, because no section 120 notice had been served, the purported statement of additional grounds was not a statement under section 120 and the Tribunal lacked jurisdiction over the Tier 4 claim.

3. First-tier Tribunal (Immigration and Asylum Chamber): Dismissed the long-residence and article 8 grounds. It considered that it had power and a duty to address the Tier 4 claim but remitted that claim to the Secretary of State.