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Supreme Court hands down judgment in leading case on appeal rights

DATE: 20 Nov 2013

The Supreme Court has today handed down judgment in the linked appeals of Patel, Anwar and Alam v. Secretary of State for the Home Department [2013] UKSC 72. The cases are the first occasion on which the Supreme Court has considered the full scope of the appeal provisions in Part 5 of the Nationality, Immigration and Asylum Act 2002 in relation to immigration appeals. In Patel, the Supreme Court confirmed that there was no duty on the Secretary of State to make decisions on applications to vary leave to enter or remain and removal decisions at the same time. The contrary argument was based on a misapplication of the Padfield principle: Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997. In so concluding, it resolved a conflict of authority in the Court of Appeal on the issue. It upheld the policy of expecting those without leave to enter or remain in the United Kingdom to depart voluntarily before enforced removal proceedings were commenced against them.

In the Anwar and Alam appeals, the Supreme Court upheld the majority decision in AS (Afghanistan) v. Secretary of State for the Home Department [2009] EWCA Civ 1076, [2011] 1 WLR 385, that an appeal to the First-tier Tribunal (Immigration and Asylum Chamber) covers not only any ground before the Secretary of State but also any ground raised in a notice under section 120 of the 2002 Act. However, the Court confirmed that there is no “near miss” principle in relation to Article 8 of the European Convention on Human Rights, again resolving a conflict in the Court of Appeal authorities on the issue. It provided guidance on the interrelationship between Article 8 and the Immigration Rules.

David Blundell appeared as junior counsel to the Secretary of State, led by First Treasury Counsel, Jonathan Swift QC.