MS (Uganda) v Secretary of State for the Home Department

Under section 83 of the Nationality, Immigration and Asylum Act 2002, an asylum appeal requires leave exceeding one year in aggregate to have been granted after the asylum claim was rejected. Earlier leave, even if it continues beyond the refusal, does not satisfy section 83(1)(b). The leave need not have been granted as a consequence of the asylum claim. Statutory jurisdiction cannot be created by waiver, agreement or failure to raise the issue below. A jurisdictional objection may be taken on appeal where it does not depend on unresolved factual findings.

The appellant, a Ugandan student, had limited leave to remain until 30 April 2012. Before its expiry he claimed asylum. The Secretary of State rejected the claim on 7 February 2012 but did not curtail his existing leave.

The First-tier Tribunal dismissed the appeal on its merits. The Upper Tribunal held that the First-tier Tribunal had no jurisdiction, set aside its determination and treated it as a nullity. The Court of Appeal considered whether section 83 conferred a right of appeal where leave pre-dated the asylum refusal, and whether the jurisdictional objection could be raised for the first time on appeal.

The appeal was dismissed unanimously. The Upper Tribunal was right that there was no valid appeal to it, although part of the reasoning below was defective.

1. Jurisdictional objection. Statutory jurisdiction could not be conferred by waiver, agreement or failure by the parties or tribunal to notice the issue. Following Virk v Secretary of State for the Home Department [2013] EWCA Civ 652, the point could be taken on appeal. It might be too late where resolution required factual findings not made below, but that was not this case.
2. Statutory scheme. Part 5 of the Nationality, Immigration and Asylum Act 2002 contains distinct appeal routes. Section 82 concerns immigration decisions, whereas section 83 provides a specific single-issue asylum appeal. The grounds of a section 83 appeal are limited by section 84(3), subject to the extension recognised in FA (Iraq) v Secretary of State for the Home Department [2010] EWCA Civ 696.
3. Temporal requirement. The word but in section 83(1)(a), the statutory sequence, the purpose of avoiding duplicated appeal procedures, and the comparable structure of section 83A supported the conclusion that the leave in section 83(1)(b) must be granted after the asylum refusal. Omondi [2009] EWHC 827 (Admin) and Win [2012] UKUT 00365 (IAC) supported that interpretation. The court accepted from AS (Somalia) [2011] EWCA Civ 1319 that no causal nexus between the asylum claim and the grant of leave was required, but that did not assist the appellant because his leave pre-dated the refusal.
4. International obligations. Judicial review remained available to challenge the refusal of asylum, and that route was compatible with the United Kingdom's international obligations: TN (Afghanistan) [2013] EWCA Civ 1609. There was therefore no need for a different construction of section 83.

• Court of Appeal (Civil Division). Appeal dismissed. The First-tier Tribunal had no jurisdiction and its determination was a nullity. [2014] EWCA Civ 50.
• Upper Tribunal (Immigration and Asylum Chamber). Set aside the First-tier Tribunal's determination after holding that there was no appealable immigration decision under section 82 and no right of appeal under section 83.
• First-tier Tribunal. Dismissed the asylum appeal on its merits.