NS (Kosovo) v Secretary of State for the Home Department

A statutory immigration appeal concerns the immigration decision actually under appeal. The Tribunal cannot use that appeal to determine the lawfulness of an earlier removal, a refusal of fresh representations, or certification of claims; those matters fall to judicial review. Where a later removal decision and certification were made pursuant to judicial review proceedings and were not challenged there, the Tribunal must assess the Article 8 appeal against that later decision. It must consider proportionality, including relevant family and private life in both the United Kingdom and the receiving country. A general duty to disclose relevant policies does not make every late policy argument an error of law. Whether non-disclosure caused unfairness is fact-sensitive, and finality may justify refusing permission for a new point raised shortly before the appeal.

The appeal was from a determination of the Upper Tribunal dated 2 December 2011. The Upper Tribunal had set aside a First-tier Tribunal determination dated 8 April 2011, remade the decision and dismissed the appellant’s Article 8 appeal against removal to Kosovo.

The appellant had entered the United Kingdom under a humanitarian evacuation programme, unsuccessfully claimed asylum, became an overstayer and was removed in December 2009. In judicial review proceedings, the Secretary of State accepted that the removal was unlawful and agreed to issue a fresh section 10 decision notice and consider certification of the appellant’s claims under the Nationality, Immigration and Asylum Act 2002. A new removal decision was issued on 9 July 2010, and the claims were certified as clearly unfounded. The appellant did not challenge those decisions in the judicial review proceedings.

The First-tier Tribunal allowed the Article 8 appeal without considering proportionality. The Upper Tribunal held that the appeal concerned the later decision and found removal proportionate. The issues before the Court of Appeal included jurisdiction, proportionality, return to the United Kingdom to pursue an in-country appeal, and a proposed new argument concerning an alleged six-to-eight-year legacy policy.

1. Appeal dismissed. Lord Justice Sullivan delivered the judgment, with which Lady Justice Rafferty and Mr Justice Ryder agreed.
2. The Tribunal is a creature of statute. At the material time its jurisdiction was limited by section 82(2) of the Nationality, Immigration and Asylum Act 2002 to appeals against immigration decisions. The only immigration decision under appeal was the removal decision dated 9 July 2010. The earlier removal, the refusal of fresh representations under paragraph 353 of the Immigration Rules, and certification under section 94 were matters for judicial review.
3. The appellant had been given an opportunity in the judicial review proceedings to challenge the later decision and certification, and to seek an order requiring his return. He did not do so. He could not therefore argue before the Tribunal that the Secretary of State had been unable to remedy the earlier unlawfulness. The First-tier Tribunal erred by treating the earlier unlawful removal as decisive and failing to consider proportionality. Under section 94(9), the Article 8 appeal had to be considered as if the appellant had not been removed. The Upper Tribunal was correct to identify proportionality as the live issue.
4. The Upper Tribunal was entitled to consider the appellant’s private and family life in the United Kingdom and his ability to develop family relationships in Kosovo. It considered the evidence, including the sparse evidence of private life in the United Kingdom, the appellant’s family circumstances in Kosovo, and the absence of any material evidential omission. Its conclusion that removal was proportionate disclosed no material error of law or perversity.
5. The Tribunal was not entitled to sidestep the unchallenged certification by ordering the appellant’s return to the United Kingdom. The lawfulness of certification was for the Administrative Court in judicial review.
6. The proposed six-to-eight-year policy point was raised too late. Hakemi [2012] EWHC 1967 (Admin) and Mohammed [2012] EWHC 3091 (Admin) established that there was no distinct policy separate from the published chapter 53 guidance. Although the Secretary of State has a broad obligation to disclose relevant policies, whether non-disclosure causes unfairness is fact-sensitive. AA (Afghanistan) [2007] EWCA Civ 12 was distinguishable because it concerned child asylum seekers, whereas this case concerned an adult who was legally represented in an Article 8 appeal. Finality and the need to give the respondent a proper opportunity to answer the new point justified refusing permission to raise it.

• Court of Appeal (Civil Division): appeal from the Upper Tribunal dismissed. [2013] EWCA Civ 408
• Upper Tribunal (Immigration and Asylum Chamber): on 2 December 2011, set aside the First-tier Tribunal’s determination, remade the decision and dismissed the Article 8 appeal.
• First-tier Tribunal: on 8 April 2011, allowed the appeal on Article 8 grounds without considering proportionality.