E1/(OS Russia) v Secretary of State for the Home Department

A statutory notice of an immigration decision is invalid if it wrongly advises a person that an appeal may be pursued only from outside the United Kingdom, when an in-country appeal is available. The court determines the effect of non-compliance by considering the statutory purpose and its consequences. Loss of an in-country appeal is the loss of a valuable right, particularly in national security proceedings.

The normal response is to quash the defective notice unless the statutory requirement has been substantially met through other correspondence or practical arrangements. The immigration decision itself remains distinct from the notice. Time for appealing runs from service of a valid notice.

The appellant, a Russian national granted asylum and indefinite leave to remain, was outside the United Kingdom when the Secretary of State excluded him on national security grounds and cancelled his leave. The notice stated that he could appeal only from outside the United Kingdom and should not attempt to return.

The appellant lodged an out-of-country appeal with the Special Immigration Appeals Commission. Following clarification in Secretary of State for the Home Department v MK (Tunisia) [2011] EWCA Civ 333, he contended that his leave had continued for ten days after service and that he had been entitled to return and lodge an in-country appeal. Mitting J dismissed his judicial review claim in [2011] EWHC 1047 (Admin), holding that the notice was effective despite its error.

The central issue was whether the failure to advise the appellant of his in-country appeal right rendered the notice invalid and required it to be quashed.

1. Appeal allowed and notice quashed. The notice deprived the appellant of the valuable right to pursue an in-country appeal. It expressly told him that he should not travel to the United Kingdom because admission would be refused. The suggestion that he could nevertheless have asserted his right to return was therefore unsustainable.

2. Applying the approach in R v Soneji [2005] UKHL 49, Parliament intended non-compliance with the relevant notification requirement to invalidate the notice. Section 105(2) of the Nationality, Immigration and Asylum Act 2002 permitted regulations requiring notice of both the existence of an appeal and how it could be exercised. Sections 92 and 94 demonstrated the importance Parliament attached to whether an appeal could be brought from within the United Kingdom. Regulations 5(6) and 5(7) further underlined the importance of the advice required by regulation 5(3), because they provided for re-service where that advice had initially been omitted.

3. The normal judicial response to such invalidity is to quash the notice. Quashing may be unnecessary where there has been substantial compliance, including where other correspondence supplied the correct information, the tribunal accepted an in-country appeal, or the person was permitted to re-enter and present the appeal.

4. An in-country appeal is particularly valuable in proceedings before the Special Immigration Appeals Commission. Such appellants already face the authorised disadvantage of being unable to see the whole national security case against them. Courts should be vigilant against further disadvantage caused by the Secretary of State’s failure to comply with statutory notification duties.

5. CM (Jamaica) v Secretary of State for the Home Department [2010] EWCA Civ 160 did not prevent relief. That case concerned reopening completed transactions after a later clarification of the law. Here, the defect was raised at the outset of the Commission hearing and determined before that appeal concluded. There was nothing to unscramble, and the need for an adjournment did not justify refusing to quash an invalid notice.

6. Lord Justice Moses and Lord Justice Pill agreed with Lord Justice Sullivan.

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 357 , unanimously allowed the appeal and quashed the defective notice.
2. Administrative Court: Mitting J granted permission for judicial review but dismissed the claim in [2011] EWHC 1047 (Admin), holding that the notice remained legally effective.
3. Special Immigration Appeals Commission: The appellant’s statutory appeal proceeded in parallel and was dismissed by an open judgment dated 20 April 2011.