NAGINE ROOHI (R on the application of) v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

A transitional saving provision for immigration appeals should be construed by reference to the appealable character of the decision, rather than to whether the particular person could immediately lodge an appeal from within the United Kingdom. Appeal rights notified before commencement of the new statutory regime are vested rights and are not removed without clear legislative language.

Accordingly, a pre-commencement decision carrying an out-of-country right of appeal remains appealable under the saved provisions. That appeal is ordinarily an adequate alternative remedy. Judicial review will therefore lie only in a small, exceptional minority of cases.

The applicants had been granted student leave supported by English-language certificates issued by ETS. Following an investigation into alleged deception, the Secretary of State served pre-6 April 2015 removal decisions which invalidated their leave and notified each applicant of an appeal exercisable only after leaving the United Kingdom.

They remained in the United Kingdom and sought judicial review. They contended that article 9(1)(d) of the Immigration Act 2014 (Commencement No.3, Transitional and Saving Provisions) Order 2014, as amended, had not preserved their appeal rights because they could not bring an appeal from within the United Kingdom immediately before commencement.

The central issue was whether the transitional saving preserved an out-of-country appeal right attached to a decision made before 6 April 2015.

1. The applications for permission to apply for judicial review were refused. The applicants retained rights of appeal exercisable only from outside the United Kingdom. Those rights supplied an adequate alternative remedy.

2. Article 9(1)(d) of the Immigration Act 2014 (Commencement No.3, Transitional and Saving Provisions) Order 2014, as amended, concerns a decision made before 6 April 2015 in respect of which an appeal could have been brought under the saved provisions. It does not turn on whether the individual recipient could, while remaining in the United Kingdom, immediately institute an appeal. The relevant question is whether the decision carried a right of appeal.

3. The applicants’ removal decisions carried such rights, as their notices stated. Their inability to exercise those rights until they left the United Kingdom did not prevent the rights from being saved. The Secretary of State’s construction was also more coherent because it made the existence of an appeal right depend on the nature of the decision, not on the person’s movements.

4. The construction was reinforced by the principle that legislation does not remove vested rights without clear language. Once the decisions and notices of appeal rights were served, the applicants acquired appeal rights under the then-operative legislation. Neither the Immigration Act 2014 nor the commencement orders clearly displaced them.

5. The analysis of section 3C of the Immigration Act 1971 did not assist the applicants. Its references to an appeal that could be brought are general references to appealable decisions. They do not impose an implied limitation to appeals exercisable in-country.

6. Applying the Court of Appeal authorities on ETS cases, an out-of-country appeal is ordinarily an adequate alternative remedy. Judicial review is unavailable save in a small minority of exceptional cases. No such exceptional feature was established.

not stated in the judgment.