Nagamuththu Vigneswaran v Secretary of State for the Home Department

A grant of leave to enter or remain ordinarily causes a pending immigration appeal to be treated as abandoned under Nationality, Immigration and Asylum Act 2002, section 104(4A). An appellant who wishes to continue an asylum or humanitarian-protection ground must positively give the notice required by section 104(4B) and the applicable Tribunal Rules.

Inaction cannot amount to notice. The statutory procedure gives an appellant a choice to pursue refugee status despite a grant of leave; it does not impose an obligation to do so. A failure to notify the Tribunal of the grant, or to object to proceedings continuing, cannot be treated as an exercise of that choice.

The appellant, a Sri Lankan national, appealed against a refusal of further submissions concerning asylum and human rights. The First-tier Tribunal initially dismissed the appeal. The Upper Tribunal later allowed an appeal on a limited error-of-law point and remitted the matter to the same First-tier Tribunal judge.

Before the remitted hearing, it emerged that the Secretary of State had granted the appellant 30 months’ leave on 4 September 2014. The First-tier Tribunal held that the appeal had consequently been abandoned under section 104 of the Nationality, Immigration and Asylum Act 2002. The appellant appealed, contending that the unusual procedural history and his failure to object to the proceedings continuing should count as notice that he wished to pursue his asylum appeal.

1. Appeal dismissed. The First-tier Tribunal correctly held that the appeal had been abandoned when the appellant was granted leave without giving the notice required to preserve his asylum ground.
2. Section 104(4A) of the Nationality, Immigration and Asylum Act 2002 treats a pending appeal as abandoned following a grant of leave, subject to the exception in section 104(4B). That exception applies only where the appellant gives notice, in accordance with the Tribunal Procedure Rules, that he wishes to pursue the asylum or humanitarian-protection ground.
3. The relevant proceedings were pending before the Upper Tribunal between 17 June and 14 October 2014. The applicable Rules therefore required the appellant to send or deliver notice to both the Upper Tribunal and the respondent within the stipulated period. Neither party informed the Tribunal of the grant of leave, and the appellant gave no notice that he wished to continue his asylum appeal.
4. The statutory procedure gives the appellant a choice. The grant of leave is the default resolution of outstanding matters. An appellant who nevertheless seeks a determination of refugee status must exercise that choice by the prescribed notice. Failure to give notice cannot, even in the particular procedural circumstances, be treated as giving notice.
5. The appellant's conduct could not be construed as an informed exercise of the choice within 30 days. The remittal made on 14 October 2014 was therefore ineffective, because the appeal had already been treated as abandoned. There was no remaining matter for either level of the Tribunal to determine.

• Upper Tribunal (Immigration and Asylum Chamber): The appeal against the First-tier Tribunal’s abandonment decision was dismissed. The appeal had already been treated as abandoned under section 104(4A) of the Nationality, Immigration and Asylum Act 2002.
• First-tier Tribunal: Following an earlier remittal, Judge Kempton held that the appeal had been abandoned after the appellant was granted leave to remain without the notice required by section 104(4B).
• Earlier Upper Tribunal proceedings: Permission was granted on a limited point. The Upper Tribunal allowed the appeal and remitted it to Judge Kempton, but that remittal was later held ineffective because abandonment had already occurred.