Rashid Aziz v The Secretary of State for the Home Department

Where an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 has been finally determined, but is later revived because a refusal of permission is quashed, a prior grant of leave to remain causes the revived appeal to be treated as abandoned under section 104(4A). The provision is not confined to appeals that were pending when leave was granted.

In a human-rights appeal, a grant of leave that removes the prospect of removal contrary to article 8 leaves no statutory basis for continuing the appeal. Such an appeal cannot be used to obtain adjudication on a separate allegation of dishonesty.

The appellant, a Pakistani citizen, appealed against the refusal of indefinite leave to remain. The First-tier Tribunal had dismissed his human-rights appeal, finding that he had been dishonest in tax information and that removal with his family to Pakistan would be proportionate.

The Upper Tribunal initially refused permission to appeal. While judicial-review proceedings challenging that refusal were pending, the Secretary of State granted the appellant and his family leave to remain. The High Court subsequently quashed the refusal of permission, and the Upper Tribunal granted permission to appeal. A Tribunal lawyer then gave notice that the appeal was abandoned under section 104(4A) of the Nationality, Immigration and Asylum Act 2002.

The issue was whether the grant of leave could abandon an appeal that was not pending when leave was granted but later became pending again following the quashing order.

1. The appeal was abandoned. Section 104(4A) of the Nationality, Immigration and Asylum Act 2002 provides that an appeal under section 82(1) is to be treated as abandoned if the appellant is granted leave to enter or remain, subject to the asylum and humanitarian-protection exception in section 104(4B).

2. The appellant’s appeal had ceased to be pending when permission to appeal was refused. It became pending again when the High Court quashed that refusal. That did not prevent section 104(4A) from operating. When the appeal revived, the appellant had already been granted leave and the appeal therefore fell at once to be treated as abandoned. The statutory language required that result.

3. The contrary construction would be incoherent. The appeal was brought on human-rights grounds, namely that removal would be unlawful under section 6 of the Human Rights Act 1998. The grant of leave meant that, on the relevant family circumstances, removal would no longer occur in breach of article 8. There was accordingly no statutory basis for continuing the appeal.

4. The appellant could not use the human-rights appeal to secure a judicial determination of the historic dishonesty allegation concerning his tax affairs. The Court of Appeal authorities confirmed that such appeals have limits in that respect.

5. The Tribunal held that its lawyer had correctly issued the abandonment notice. It also directed that the High Court be informed that the appellant’s solicitors had not notified it of the grant of leave during the judicial-review proceedings.

• Upper Tribunal (Immigration and Asylum Chamber): Held that the appeal was treated as abandoned under section 104(4A) of the Nationality, Immigration and Asylum Act 2002.

• High Court: On 3 September 2019, the Upper Tribunal’s refusal of permission to appeal was quashed in judicial-review proceedings; no neutral citation was stated.

• Upper Tribunal (Immigration and Asylum Chamber): Refused permission to appeal on 3 April 2019; that refusal was later quashed.

• First-tier Tribunal: Dismissed the appellant’s human-rights appeal on 5 December 2018; no citation was stated.