Case No: C5/2011/1117
Neutral Citation Number: [2012] EWCA Civ 566
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
SIJ WAUMSLEY
IA/22653/2010
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 02/05/2012
Before :

LORD JUSTICE RIX
LORD JUSTICE MOSES
and
MR JUSTICE BRIGGS
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Between :

	Joxin Kizhakudan 	Appellant / Claimant	
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	Secretary of State for Home Department	Respondent / Defendant	

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Mr Tim Buley (instructed by Messrs Hafiz & Haque) for the Appellant
Mr Ben Hooper (instructed by Treasury Solicitors) for the Respondent

Hearing date : Friday 27th January 2012
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Judgment
Lord Justice Rix : 
1.	The appellant, Joxin Kizhakudan, is a student from India who has been studying in the United Kingdom for a number of years. His latest enrolment in a course came to nothing when his college was removed from the register of Tier 4 student sponsors. In those circumstances Mr Kizhakudan found himself in difficulties because by the time his application for an extension to his leave to remain was refused in the light of his college’s deregistration it was too late for him to find alternative sponsorship at another college. His appeal against the refusal to extend his leave to remain was nevertheless allowed, mistakenly as is now common ground, in the belief that in such circumstances his case fell within a policy which allowed 60 days to find new student sponsorship. In due course the decision of the first-tier tribunal in his favour was overturned, upon the appeal of the Secretary of State, in the upper tribunal for error of law. It was nevertheless submitted on behalf of Mr Kizhakkudan in the upper tribunal that, in considering his case anew as the upper tribunal was obliged to do (unless it remitted it to the first-tier tribunal), that tribunal ought to have taken account of his private life in the UK pursuant to article 8 of the European Convention on Human Rights. However, the judge refused to hear argument on article 8 on the ground that the point was not open to Mr Kizhakudan: in circumstances where there was no error of law in the FTT in not considering a point, the article 8 point, which had not been raised before it. 

2.	On this appeal Mr Kizhakudan submits that the Upper Tribunal was itself in error: first in requiring an error of law in the FTT in relation to article 8 when as was common ground there was already an error of law in relation to the Secretary of State’s policy; and secondly in refusing to accede to a request to consider article 8 for itself in relation to the need to make a new decision. This is a second appeal, but Lord Justice Sullivan nevertheless gave permission for it on the basis that the upper tribunal’s refusal to consider the article 8 point was of importance. 

The facts

3.	Mr Kizhakudan was granted leave to enter the United Kingdom as a student on 30 January 2002. Originally his leave extended until 31 October 2003, but he was subsequently granted a series of extensions until 14 February 2010. One day before that deadline he applied for a further extension, as a Tier 4 (General) Student. In his application form he stated his enrolment for a “professional graduate diploma in information technology” at Gateway2UKeducation, South Ealing. At that time that college was registered as a Tier 4 sponsor: however, by the time that Mr Kizhakudan’s application came to be considered on behalf of the Secretary of State, the college had been removed from the register, and consequently the application for an extension of his leave to remain failed.

Mr Kizhakudan’s appeal litigation

4.	Mr Kizhakudan exercised his right of appeal to an immigration judge in the first-tier tribunal. In his grounds of appeal he submitted that the Secretary of State’s decision was –

“not in accordance with Immigration Rules being unfair and/or that the decision has been taken wrongly…Kindly note that the Immigration Rules are silent on this matter and it is the duty of the SOSHD to exercise correct scrutiny rather than relying on different policy guidelines…the SOSHD has failed to consider the appellant’s circumstances sympathetically by providing him with an opportunity to rectify shortfall by change the college…”

However, there was no reliance on article 8, even though Mr Kizhakudan was told in the Secretary of State’s decision letter, in the standard way, of his rights of appeal inter alia on human rights grounds pursuant to the Convention and was there given the conventional “one-stop warning”. 

5.	When his appeal came on in the first-tier tribunal before Immigration Judge Widdup on 13 September 2010 Mr Kizhakudan was represented by Mr Madhu Chempakasari, a solicitor with Hafiz and Haque solicitors. Mr Chempakasari had three points up his sleeve, but he was so successful when he revealed his first point that the other two went unmentioned. Meanwhile the Secretary of State had not been represented, so that argument was no doubt brief.

6.	Mr Chempakasari’s first point was his reliance on the Secretary of State’s policy guidance “Tier 4 of the Points Based System – Policy Guidance”. At paragraph 27 of that guidance the applicant is told “What will happen” if “your approved education provider’s licence is withdrawn”. Then, “If you are already in the United Kingdom studying”, the guidance states as follows:

	“We will limit your permission to stay to:
● 60 days if you were not involved in the reasons why your approved education provider had their licence withdrawn (we will not limit your permission to stay if you have less than six months left. You may want to apply for permission to stay with another approved education provider during this time).
● immediately if we think you were involved in the reasons why your sponsor’s licence was withdrawn.”

7.	It is now common ground that this policy does not extend a student’s leave to stay, but limits it to 60 days (unless the student visa has less than six months to run, in which case it remains in place). In the present case, Mr Kizhakudan’s visa expired the day after his application, so that the policy guidance on its terms was of no assistance to him. 

8.	It may be observed that this point was not within Mr Kizhakudan’s grounds of appeal, which, on the contrary, had proceeded on the correct basis that policy guidelines were of no assistance to him, and instead appealed to fairness (of which more below).

9.	However, the point was embraced by IJ Widdup so firmly that Mr Chempakasari’s second and third points remained unrevealed. His second point would have reflected the grounds of appeal in relying on the alleged unfairness of the lacuna which policy guidance creates for persons whose visa has run out before they realise any need to remedy their position.  His third point would have relied on article 8 and a private life arising from the pursuit of Mr Kizhakudan’s studies in the UK for approaching 9 years. We know that Mr Chempakasari intended to make the second and third points by reason of his subsequent witness statement dated 17 May 2011, made for the purposes of this appeal. 

10.	All that IJ Widdup considered that he needed to say in his short determination was that the policy guidance should have led to Mr Kizhakudan being granted leave to remain for 60 days to enable him to register elsewhere. As I have said, it is now common ground that that was an error of law. 

11.	The Secretary of State applied to and obtained permission to appeal to the upper tribunal on the ground that the policy guidance had been misinterpreted: “the limitation of extant permission to stay does not equate to the granting of further leave to remain”. There was, however, no respondent’s notice to rely on the unspoken second and third points; and, because they were unspoken, there was naturally no record of them having been made.

12.	The Secretary of State’s appeal came before Senior Immigration Judge Waumsley on 4 January 2011 and his determination was promulgated on 17 January 2011. He allowed the appeal, indeed the policy guidance point was conceded, but in doing so refused to consider an attempt by Mr Kizhakudan, on that occasion represented by Ms Panagiotopoulou of counsel, to rely on article 8. The correctness of that refusal is now the essential question of the further appeal to this court.  

13.	Ms Panagiotopoulou has also made a witness statement, dated 10 November 2011, for this appeal. In it she states that she conceded that IJ Widdup’s determination contained an error of law, but continues as follows:

“At the second stage of the proceedings (which required SIJ Waumsley to remake a decision) it was argued on behalf of [Mr Kizhakudan] that this was a de novo hearing and hence it was incumbent on the SIJ to reconsider [his] appeal under the Immigration Rules and under article 8 of the ECHR regardless of whether or not any human rights arguments had been raised before the Immigration Judge at the first tier tribunal. During the course of my submissions specific reference was made to the case of CDS (Brazil) [2010] UKUT 00305 in support…”

14.	In CDS (Brazil) the upper tribunal (presided over by Mr Justice Blake, President) had applied article 8 in support of a student who had studied in the UK for some 4/5 years, on the basis that “a relevant connection with the course, the institution, an educational sequence for the ultimate professional qualification sought” may inter alia count in the student’s favour (at [19]). 

The upper tribunal’s determination

15.	However SIJ Waumsley considered that the article 8 point was not and could not be open to Mr Kizhakudan. In his determination he expressed the matter as follows:

“8. Ms Panagiotopoulou argued that the Immigration Judge had erred in failing to consider the issue of the respondent’s human rights. She conceded that human rights had not been raised in his grounds of appeal, but she informed me that she had been told by Mr Chempasakari, the representative of the respondent’s solicitors who had appeared on his behalf at the appeal hearing, that he had raised human rights during the course of the hearing. However, reference to the Immigration Judge’s contemporaneous record of proceedings disclosed that Mr Chempasakari’s recollection in that regard was incorrect, and that human rights had not in fact been raised by him during the course of the appeal hearing.”

Pausing there, I observe that it is no longer in dispute that the article 8 point was not raised before the first-tier tribunal. If Ms Panagiotopoulou understood Mr Chempakasari aright, he had been mistaken to say that he had in fact raised the point. Rather, as his witness statement now says, he had intended to raise the point, had it been necessary.

16.	SIJ Waumsley continued:

“9. Nevertheless, Ms Panagiotopulou submitted that the Immigration Judge should have considered the issue of human rights of his own motion. The respondent had been in the United Kingdom pursuing his studies for a little under nine years at the time of the appeal hearing, and had expended a lot of time and money in doing so. Although he had not established any family life in the United Kingdom, he had clearly established a private life… 

11. Appeal to this Tribunal lies on a point of law only. It would therefore only be if I were to conclude that the Immigration Judge had made a material error of law in reaching his decision that I would be entitled to interfere with it. The first issue to be considered is therefore whether the Immigration Judge erred in law. I have no hesitation in concluding that he did. Indeed, Ms Panagiotopoulou accepted…that the Immigration Judge had erred in law…

13. Instead, Ms Panagiotopoulou argued before me that it was an error of law on the Immigration Judge’s part not to consider whether the appeal should be allowed on human rights grounds instead. I am unpersuaded by her submission. The grounds of appeal contained in the respondent’s notice of appeal are detailed. However, they make no reference of any kind to human rights…the respondent has not sought to raise a reply raising a human rights claim. For good measure, I note that there is no reference to human rights in the respondent’s appeal statement dated 6 September 2010 which was submitted on his behalf at the appeal hearing.

14. If the respondent wished to rely on human rights grounds before the Immigration Judge, it was incumbent on him or his representative to raise the point. They did not at any stage take advantage of the opportunity to do so. It was plainly not an “obvious” point so far as the respondent or his representative were concerned. I am not persuaded that it was such as “obvious” point that the Immigration Judge could reasonably have been expected to raise and consider it of his own motion. In the circumstances, it was not an error of law on his part not to do so.

15. For these reasons, I am satisfied that if the Immigration Judge had not fallen into error in the way in which he did in misinterpreting the provisions of the appellant’s Policy Guidance…he could not properly have done otherwise than to dismiss the appeal. I therefore now substitute a decision to that effect.”

17.	It will be observed (i) that Ms Panagiotopoulou is recorded as submitting that the immigration judge, that is IJ Widdup, should have considered the article 8 point (not that SIJ Waumsley should do so), and that he had erred in law in not doing so; (ii) that in that connection SIJ Waumsley considered whether it ought to have been “obvious” (presumably “Robinson obvious”, see R v. Secretary of State for the Home Department, Ex parte Robinson [1998] QB 929 (CA)) to IJ Widdup to consider the article 8 point for himself; but (iii) that the critical point for SIJ Waumsley was that IJ Widdup had not himself erred in respect of any article 8 point, for there was no such point before him.

18.	However, as indicated above, Ms Panagiotopoulou’s witness statement prepared for this appeal says that her submission had been that SIJ Waumsley ought to have considered the article 8 point for himself (she went so far as to say that she had argued that it was “incumbent” on him to reconsider the appeal under article 8), whether that point had been raised before IJ Widdup or not. Moreover, she attached to her witness statement the back-sheet which she had endorsed following the hearing in the upper tribunal, inter alia as follows:

“I concede that the determination contains errors of law in that it allowed the appeal under the immigration rules when quite clearly para 245 ZX provides that the visa letter becomes invalid when the sponsor is withdrawn from the register of sponsors. However I raise HR (article 8 – private life issues) following CDS (Brazil)…”

That would seem to support her statement that she urged SIJ Waumsley to take account of article 8, as do her grounds of appeal to this court and SIJ Waumsley’s response to them (see below).

Fairness

19.	Since the proceedings before SIJ Waumsley there have been two decisions in the upper tribunal which have considered the Secretary of State’s policy guidance in similar circumstances from the point of view of fairness.

20.	Thakur (PBS decision – common law fairness) Bangladesh [2011] UKUT 00151 (IAC) was decided by Simon J sitting with SIJ Latter. As in this case the Secretary of State had appealed against a first-tier tribunal determination which had decided that the Secretary of State had not complied with her policy of granting 60 days leave to remain to allow a student to find a fresh enrolment. It was granted that the policy had been misunderstood in the first tier tribunal and that the grant of 60 days leave was not required by the guidance (referring to another recent decision of the upper tribunal which had also decided that point: JA (Revocation of Registration – Secretary of State’s policy) India [2011] UKUT 52 (IAC)). 

21.	However, in Thakur the upper tribunal nevertheless decided the appeal against the Secretary of State on the ground of common law fairness. It said:
 
“12. However, this is not an end of the matter as in this case, unlike in JA, we are dealing with a situation where an appellant in his particular circumstances has been deprived as at the date of the respondent’s decision of an adequate opportunity of finding another college. This brings into play the common law duty of acting fairly in the decision making process…”

citing R (on the application of Q and others) v. Secretary of State for the Home Department [2003] EWCA Civ 364. It reasoned –

“17. We are therefore satisfied that the judge was right to find that the decision was not in accordance with the law, not for the reasons he gave that there was a right to a grant of 60 days further leave under the policy, but because the appellant did not have a proper opportunity either of making representations following the closure of his college or of finding an alternative course with a licensed college before the decision was made on his application.”

22.	A similar result was achieved in Patel (revocation of sponsor licence – fairness) India [2011] UKUT 00211 (IAC) where Blake J was sitting with upper tribunal judge Mr Baptiste. There the students’ appeal was based on error in the consideration of an article 8 point that had been raised before the first-tier tribunal. However, the basis of the error which led to the allowing of their appeal was the first-tier tribunal’s failure to take account of the Secretary of State’s duty to act fairly, which had to be taken into consideration when considering the article 8 point. Therefore the decision of the first-tier tribunal was set aside, and the upper tribunal, because it did not there have the power (under section 87 of the Nationality, Immigration and Asylum Act 2002) to remit the matter to the first-tier tribunal, remade the decision for itself by quashing the Secretary of State’s decision and requiring her, in order to give effect to the principle of fairness, not to make a new decision until 60 days had been allowed to the students to obtain new sponsorship. The upper tribunal described the principal of fairness at paragraphs 22-25 of its determination.

23.	In the present case, however, the upper tribunal (under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007) and this court (under section 14(2)(b) of the same Act) have power, where they find an error of law in the decision under appeal, either to remake the decision, or to remit it: in the case of the upper tribunal, to the first-tier tribunal, and in the case of this court, to the upper tribunal or the first-tier tribunal.

SIJ Waumsley’s refusal of permission to appeal from the upper tribunal 

24.	Following her failure before SIJ Waumsley, Ms Panagiopoulou drafted grounds in support of an application on behalf of Mr Kizhakudan for leave to appeal from the upper tribunal to the court of appeal. Her essential ground was that SIJ Waumsley had failed, although obliged, to consider arguments under article 8 in remaking a decision in respect of Mr Kizhakudan’s appeal. She wrote:

“It is submitted that the SIJ erred in his approach to the 2nd stage of the consideration of the applicant’s appeal (that is to say the remaking of the decision); having established that the original IJ’s decision could not stand, it was incumbent on the SIJ to reconsider the appeal and arguments afresh and reach his own independent decision on whether the appeal should be allowed or dismissed; that reconsideration should have involved a consideration of claims under Immigration Rules and Human Rights arguments; the SIJ erred materially in his approach to the reconsideration as he did not engage with the arguments relating to article 8 (private life – following the dicta in CDS…) because in his view these matters had not been raised before the IJ at the first appeal. That approach was materially flawed…  

It is respectfully submitted thus that there is a lacuna in the current guidance which does not provide for bona fides students who have in good faith applied from within the UK for further leave to remain in the UK with a sponsor whose licence is subsequently withdrawn.”

25.	This application for permission to appeal came before SIJ Waumsley on paper, and he refused permission by his decision dated 31 March 2011. He then wrote:

“I am not persuaded that the grounds on which the respondent has applied for permission to appeal raise any arguable point of law which would have a realistic prospect of success on further appeal to the Court of Appeal. At the hearing before me, the respondent attempted belatedly to raise for the first time an entirely new issue which had not been argued before the Immigration Judge, namely that his removal from the United Kingdom would constitute a disproportionate interference with his right to respect for private and family life under Article 8 of the European Convention on Human Rights and Fundamental Freedoms. I declined to allow him to do so, but even had I permitted that issue to be raised for the first time before me, I would have decided it against the respondent in any event. On the undisputed facts of his case, he is plainly what may fairly be characterised as a classic “perpetual student” who had already been in the United Kingdom with limited leave to remain as a student for nearly 9 years and was seeking to extend his stay in that capacity for a further 18 months, no doubt with an eye to the “10 year winning post” required for indefinite leave to remain under paragraph 276B of the Immigration Rules (HC 395) as amended. I would not have permitted him to do so.”           

26.	I make two comments. The first, is that there is no suggestion there that Ms Panagiopoulou had not sought to raise before him the article 8 point for his consideration. The other is that the senior immigration judge ought not, in my judgment, to have gone on to decide the article 8 point in that way in his permission to appeal decision, when he was agreeing that he had not allowed the point to be raised before him. Because he had dealt with the argument before him in the way he did, he never heard developed argument concerning the article 8 point. It was wrong of him belatedly to attempt to answer (particularly in the terms I have cited above) an argument which he had not allowed to be properly put, and therefore had not addressed in his determination. 

Discussion

27.	On behalf of the Secretary of State, Mr Ben Hooper submitted that the upper tribunal made no error of law: for the article 8 issue had neither been raised before the first-tier tribunal, nor was it properly before the upper tribunal; nor was it a Robinson obvious point (nor was it alleged to be). Therefore the upper tribunal’s decision was right and could not be interfered with. Even on the assumption, which he was prepared to make, that Ms Pangiotopoulou was right in her witness statement to say that she had invoked article 8 before SIJ Waumsley himself, she had only done so on the basis that it was “incumbent” for him to consider the point (which was tantamount to saying that it was a Robinson obvious point, when it was not). In these circumstances he advanced the surprising submission that she could not complain that SIJ Waumsley had failed to consider article 8 as a matter of discretion, while at the same time accepting that he had such a discretion.

28.	In my judgment, however, SIJ Waumsley was wrong to look for an error of law committed by IJ Widdup with respect to the article 8 point. He, SIJ Waumsley, had no need for any further error of law to give him jurisdiction to deal anew with Mr Kizhakudan’s appeal. He already had the common ground error of law in relation to the proper interpretation of the Secretary of State’s policy guidance (para 11 of his determination). He therefore was in the position where he had either to remake the decision for himself, or to remit the matter back to the first-tier tribunal: see section 12(2)(b) of the 2007 Act. What he was not required to do was to look at the matter solely through the lens of the argument before IJ Widdup, as though he needed to find a second error of law, this time with respect to article 8, before he could be permitted to consider that issue for himself.

29.	Moreover, I am satisfied on the basis of Ms Panagiopoulou’s witness statement, and the contemporaneous endorsement of her backsheet, that she requested SIJ Waumsley to consider the matter anew on the basis of article 8, but was not permitted to do so. That is confirmed by the terms of SIJ Waumsley’s refusal of permission to appeal. Whether the submission to him was on the basis that he was required to consider article 8 as a Robinson obvious point, or that he merely ought to consider it within his discretion to do so, does not, to my mind, ultimately matter. It was plain that she wanted him to consider it, as Blake J had considered it in CDS, to which she referred. As her endorsed backsheet had stated: “However I raise HR (article 8 – private life issues) following CDS…” 

30.	However, SIJ Waumsley considered that he could not consider article 8 unless IJ Widdup had erred in law in failing to consider it. He therefore put it out of his hands to consider whether he ought to look at the matter in terms of article 8. In my judgment, however, SIJ Waumsley had a discretion to consider the article 8 point, even if, as he was entitled to think, the point had not been properly raised in the first-tier tribunal, nor by any respondent’s notice. It is plain, however, that SIJ Waumsley refused to consider his discretion. Whether or not any of the thoughts which led to the way he expressed the matter in his permission to appeal decision entered sub silentio into his thinking does not matter; but it is of course a matter of concern that they may have done so. In any event, he never reached a consideration of his discretion. 

31.	I would emphasise that I would not wish to undermine in the slightest the importance of a proper response on the part of immigration appellants to the obligation to plead their full case. The “one-stop notice” is a foundation stone of the process, as is the statutory obligation which then arises under section 120 of the Nationality, Immigration and Asylum Act 2002 to state the “grounds on which he should be permitted to enter or remain in the United Kingdom”. It is in response to such grounds that a tribunal on appeal has in turn a statutory duty to “consider any matter raised in the statement which constitutes a ground of appeal” (section 85(2) of the 2002 Act). I would also wish to emphasise the importance of a respondent’s notice in a situation, as here, where the Secretary of State is the appellant in the upper tribunal. 

32.	However, in the present case, I am satisfied that, even if SIJ Waumsley could not have known this, Mr Chempakasari had intended to raise the article 8 point before IJ Widdup, had it been necessary to do so. I am also satisfied that the article 8 point was sought to be raised by Ms Panagiopoulou before SIJ Waumsley for his consideration in terms which that judge ought to have recognised included an invocation to him to use his discretion to permit the point to be relied on by way of response. This invocation arose in circumstances where the article 8 point, strong or weak, was a legitimate point, as the case of CDS, cited to the upper tribunal, demonstrated. Moreover, the article 8 issue arose in a context where, even if the common law fairness point had not yet been brought properly to light as was to happen a little later in the upper tribunal decisions in Thakur and Patel, that point is now a matter for proper consideration in circumstances where it cannot be divorced from any issue of proportionality which might arise under article 8. Moreover, that issue of common law fairness had been raised, even if in somewhat inchoate terms, in Mr Kizhakudan’s original grounds of appeal (see para 4 hereof above). 

33.	In these circumstances, I conclude first, that SIJ Waumsley erred in law in rejecting out of hand any possibility of considering the article 8 issue, on the mistaken ground that he could not do so unless he first found that IJ Widdup had erred in law in not considering it. Secondly, it follows that it falls to this court, pursuant to section 14 of the 2007 Act, to decide whether or not to set aside the upper tribunal’s decision. If the decision is to set aside, it is necessary for this court next to decide whether to remake the decision itself, or to remit it to the upper tribunal. For all or some of the reasons stated in the previous paragraph, which Mr Tim Buley has attractively argued on behalf of Mr Kizhakudan, I would set aside SIJ Waumsley’s decision and remit it to another judge of the upper tribunal for it to decide the outcome of Mr Kizhakudan’s appeal. 

34.	In my judgment, on that remission the upper tribunal should consider the article 8 issue, and, in that context the issue of common law fairness, whatever may be its strength or weakness in the present case where Mr Kizhakudan only applied for an extension to his leave to remain with one day in hand, but even so only heard of the deregistration of his sponsoring college when it was too late. In this connection, it may be relevant that, as we were told, an application to extend can not be made earlier than 28 days before the expiry of the current leave.

Decision

35.	In sum, I would allow this appeal. I would set aside the decision of the upper tribunal and remit this matter to the upper tribunal for its decision.
    
Lord Justice Moses :
36.	I agree.

Mr Justice Briggs :
37.	I also agree.