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No changing horses in mid stream

In the second Court of Appeal judgment from last week in which Zane Malik was Counsel for the Appellant, that of Lamichhane v Secretary of State for the Home Department [2012] EWCA Civ 260, the same bench has given another judgment that many migrants will find unhelpful.

Essentially, the Court holds that it is not possible to pursue an appeal on grounds other than precisely those pleaded to the Secretary of State or Entry Clearance Officer in the original application. For example, it is not possible to apply for leave under one Immigration Rule but then appeal on the basis that even if the applicant cannot succeed on the basis of that rule he or she could succeed on the basis of another rule.

There is an important qualifier: this is only true if the Secretary of State does not serve a s.120 notice. If none is served, the appeal must be confined to the application made. If a s.120 notice is served, the appeal can be on any grounds raised in the s.120 notice.

Any experienced immigration practitioners will be shaking their heads in sorrow at the insanity of undermining the supposedly one stop nature of the appeal process. Many years ago appeal laws were reformed to prevent multiple appeals on different grounds. The Court of Appeal seems determined to resurrect the Old Ways, however.

A couple of examples:

A decision refusing a student or spouse or any other application is made. The applicant wishes to appeal on human rights grounds, perhaps because of unfairness in the refusal. If no s.120 notice is served, it seems they now cannot, but must instead appeal the original decision on limited grounds and if that fails then put forward another separate application on human rights grounds to the Home Office.

A decision to make a deportation order is served. No s.120 notice accompanies it. Can the recipient appeal only on immigration rule deportation grounds, not on asylum or humanitarian protection grounds? If the recipient had no leave, can he or she not appeal on the basis that a rule such as the 14 year rule, dependent relative or domestic violence rule is satisfied? Will that require a separate later appeal, or will the tribunal ‘remit’ (it has no such power, but the term seems ubiquitous these days) such cases to the Secretary of State? Either way spins out the process.

The decision means that anyone seeking to remain on different grounds than those originally advanced to the Home Office will be entitled to appeal on one basis then make a later separate application once that appeal is completed. It will prolong cases and delay enforcement.

Bonkers.

Free Movement
Free Movement The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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