SS (s104(4)(b) of 2002 Act = application not limited) Nigeria [2007] UKAIT 00026

Asylum and Immigration Tribunal	

THE IMMIGRATION ACTS

Heard at Field House	Determination Promulgated	
On 28 November 2006	On 27 February 2007	

Before

MR C M G OCKELTON, DEPUTY PRESIDENT 
OF THE ASYLUM AND IMMIGRATION TRIBUNAL
SENIOR IMMIGRATION JUDGE ALLEN

Between

Appellant
and

ENTRY CLEARANCE OFFICER - LAGOS

Respondent

Representation:

For the Appellant:	Mr A Fadina of Fadina & Associates	
For the Respondent:	Mr C Avery, Home Office Presenting Officer 

NOTICE OF ABANDONMENT OF APPEAL 
UNDER SECTION 104(4) OF THE NATIONALITY, IMMIGRATION 
AND ASYLUM ACT 2002

Section 104(4)(b) of the 2002 Act is not limited in its application.  Hence a claimant who has entry clearance as a visitor and attends his appeal hearing against a decision refusing entry clearance for the purpose of study, abandons that appeal when he leaves the United Kingdom. (Note: with effect from 13 November 2006, s.9 of the Immigration, Asylum and Nationality Act 2006 amends s.104(4) so that it applies only to in-country appeals).

1.	The appellant is a citizen of Nigeria.  He appealed to an Immigration Judge against the Entry Clearance Officer’s refusal of entry clearance for the purpose of study, the date of decision being 21 December 2005.   In a determination promulgated on 25 July 2006 the Immigration Judge allowed the appeal.   The Entry Clearance Officer sought reconsideration of this decision on the basis firstly that the appellant’s appeal was, it was  contended, abandoned by statute; and secondly that the appellant did not have the right to appeal from within the United Kingdom.   The grounds were both regarded as properly arguable by the Senior Immigration Judge, who ordered reconsideration on 9 August 2006.   

2.	The hearing before the Tribunal took place on 28 November 2006.  Mr A Fadina of Fadina & Associates appeared on behalf of the appellant.  Mr C Avery appeared on behalf of the Entry Clearance Officer.   

3.	At the hearing before the Immigration Judge the appellant gave oral evidence since he was in the United Kingdom on a visit visa.   The Immigration Judge clearly derived assistance from his evidence and concluded as a consequence of his assessment of the evidence as a whole that the decision was not in accordance with the Immigration Rules, or, as he described it, practices that ought to have been applied, and allowed the appeal.   

4.	In the grounds it was argued that under Section 104(4)(a) of the Nationality, Immigration and Asylum Act 2002, the appeal fell to be treated as abandoned if the appellant was granted leave to enter or remain in the United Kingdom.   

5.	It was also argued that Section 92(2) of the same Act only allowed an appeal from within the United Kingdom if an appellant fell within the particular provisions contained within Section 82 of the Act, and the appellant did not fall within any of these, it was said.

6.	At the outset we drew to Mr Fadina’s attention paragraph 7 of the chronology with which he had provided us.   There it is said that the appellant left the United Kingdom as a visitor in October 2006 as his two year multiple entry visit visa expired on 24 November 2006.   We suggested to Mr Fadina that it appeared that the appeal was abandoned under the provisions of Section 104(4)(b) of the Nationality, Immigration and Asylum Act 2002.   

7.	Mr Fadina referred us to rule 18 of the Procedure Rules.   This was a point that he had also made at paragraph 4 of his skeleton argument.   He argued that there had been a failure on the part of the Entry Clearance Officer to notify the Tribunal of an event specified in section 104(4) of the 2002 Act having taken place.  Mr Fadina also referred us to the copy of the appellant’s passport in the bundle at page 8 and made the point that the appellant had to go back to Nigeria since his visa was shortly to come to an end.   He said that at the date of the reconsideration application the appellant had not left the United Kingdom but he had had to leave because he would have been in breach of his leave if he had remained.   If he had not come to the United Kingdom as a visitor and was not here today the appeal would be decided today and it had been sought to expedite the hearing though he accepted that the Home Office had not been asked for an extension of the appellant’s leave.   

8.	In his submissions Mr Avery referred us to the terms of Section 104(4)(a) and relied upon what was said there.   The appellant’s entry clearance specified the conditions of entry, but he still had to be admitted by an Immigration Officer with the conditions attached and this was for the time limit and any other condition to apply.   Section 104(4)(a) was meant to apply in this particular circumstance.  It also must be the case that section 104(4)(b) applied.  He could have sought to extend his stay and had not done so.  If the section had meant to be restricted to leave to enter or remain with regard to the appeal in question then it would have said so.  

9.	With regard to the second ground of appeal, he did not place particular reliance on this but argued that by being in the United Kingdom the appellant could not pursue an appeal in any event.  There was no scope for any different conclusion.  

10.	Mr Fadina referred to a letter sent to the court on 23 August 2006 asking for the appeal to be expedited.   The appellant had been aware that his leave was running out.  It was also the case as pointed out by the Senior Immigration Judge who ordered reconsideration that the point in the grounds had not been taken before the Immigration Judge.   The Presenting Officer had had an opportunity to raise the abandonment point.   The appellant had been allowed to enter the United Kingdom for the purposes of the appeal despite Section 104(4)(b).  He referred to the decision of Patel v Entry Clearance Officer Bombay  [1991] IAR 273.   

11.	At the date of application for entry clearance as a student the appellant had entry clearance as a visitor, this having been granted on 24 November 2004.   The student refusal had been on 21 December 2005.   At the date of refusal the Immigration Officer had not curtailed or cancelled the appellant’s leave to enter as a visitor.   He had come within the terms of the entry clearance in January 2006 and returned to Nigeria in late January 2006 and returned in July 2006, going back again to Nigeria in October 2006.   He had been granted leave to enter when he arrived in the United Kingdom in January and again in July for the purpose of a visit.   The rule 18 issue had never been addressed.  He accepted that neither he nor the Presenting Officer had raised it at the hearing.   

12.	We reserved our determination.   

13.	Section 104(4) of the Nationality, Immigration and Asylum Act 2002 reads as follows.

(4)	An appeal under Section 82(1) shall be treated as abandoned if the appellant –

(a)	is granted leave to enter or remain in the United Kingdom, or

(b)	leaves the United Kingdom.”

14.	This is an appeal under Section 82(1) of the 2002 Act, being a refusal of entry clearance within the definition of “immigration decision” in Section 82(2)(b).   

15.	The relevant parts of Section 92 of the 2002 Act state as follows:

(1)	A person may not appeal under Section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.

(2)	This section applies to an appeal against an immigration decision of the kind specified in Section 82(2)(c),(d),(e),(f) and (j).   

16.	We deal first with the abandonment point.  It seems from what we are told by Mr Fadina that the appellant was granted a two year visit entry clearance on 24 November 2004.   Documentation supporting that submission is to be found at page 8 of the bundle.   As we pointed out to Mr Fadina, the appellant did not have leave to enter at that time but had been granted entry clearance which could lead to leave to enter if, as he did, he came to the United Kingdom.   He did not, however, have leave to enter as Mr Fadina argued he had on 21 December 2005 at the time when he was refused entry clearance for the purpose of study in the United Kingdom.  He was granted leave to enter when he came in January 2006 and thereafter returned to Nigeria towards the end of that month.   He was again granted leave to enter when he returned to the United Kingdom in July 2006 and we understand he returned to Nigeria in October 2006.   

17.	In our view the wording of the statute is clear.  An appellant who is granted leave to enter or remain in the United Kingdom or leaves the United Kingdom is to have an appeal under Section 82(1) treated as abandoned.  In particular we can see no limitation on the application of section 104(4)(b).  An appellant who leaves the United Kingdom will find his appeal under Section 82(1) treated as abandoned.   Though no doubt in this case there has been a failure by both those representing the Entry Clearance Officer and those representing the appellant to fulfil the mandatory requirements set out in rule 18 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 requiring any party to a pending appeal to notify the Tribunal if they are aware of an event specified in section 104(4) of the 2004 Act has taken place, that amounts to no more than a failure to observe a procedural requirement.  We are concerned with an issue of jurisdiction in this case and rule 18 and its operation or failure to observe it can have no effect on that.  The wording of section 104(4) is mandatory.   We are satisfied that the appeal is abandoned by statute and we have no jurisdiction to determine it.   The Immigration Judge materially erred in allowing the appeal.

18.	It is perhaps appropriate for us to deal briefly with the other ground, however for the sake of completeness.  This is a refusal of entry clearance and therefore it falls under Section 82(2)(b) of the 2002 Act, as we have set out above.   The appellant put in a notice of appeal to the Asylum and Immigration Tribunal on the proper form, dated 31 December 2005.  He was not in the United Kingdom at that time, and gave his contact address as his home in Lagos. That document and the accompanying letter with it is his appeal.  It follows that his appearance at the hearing before the Immigration Judge was not his appeal, but was simply his attendance at the hearing of the appeal which had earlier been made on 31 December 2005.  Accordingly, we see no merit in the Entry Clearance Officer’s second ground in this case.  The appellant was not precluded by Section 92 from appearing to give evidence at the hearing of his appeal against the Entry Clearance Officer’s decision.   The point is no doubt an academic one, since unless he had arrived in the United Kingdom illegally and attended the hearing it would have to have been the case that he would have been granted leave to enter and therefore as set out above would have abandoned his appeal in any event.   

19.	As stated above, we conclude that the Immigration Judge materially erred in allowing this appeal. The Tribunal has no jurisdiction in this case.

Signed								Date

Senior Immigration Judge Allen