Introduction

The case of Md Jakir Hussan Saimon versus the Secretary of State for the Home Department [2017] UKUT 371 (IAC) addresses a pivotal issue within UK immigration law: the circumstances under which an appellant's departure from the United Kingdom results in the abandonment of their ongoing appeal. This case delves into the interpretation and application of Section 104 of the Immigration Act 2002, particularly in the context of amendments introduced by the Immigration Act 2014.

Md Jakir Hussan Saimon challenged the refusal of permission to appeal a decision to vary his leave and direct his removal from the UK. After a series of legal proceedings, including a successful judicial review that quashed a prior refusal, the appellant left the UK in August 2015. The crux of the case revolves around whether this departure rendered his appeal abandoned, thereby affecting the Tribunal's jurisdiction.

Summary of the Judgment

The Upper Tribunal (Immigration and Asylum Chamber) ultimately determined that Md Jakir Hussan Saimon’s departure from the United Kingdom in August 2015 constituted the abandonment of his pending appeal under Section 104(2)(a) of the Immigration Act 2002. Consequently, the Tribunal lacked jurisdiction to consider his appeal post-departure. The court emphasized that the appeal was still pending at the time of his departure because the application for permission to appeal was awaiting determination following the quashing of a previous decision. Therefore, all subsequent proceedings post-departure were deemed invalid.

Analysis

Precedents Cited

The judgment primarily references Section 104 of the Immigration Act 2002 and the Immigration Act 2014's amendments to it. Though specific prior cases are not detailed within the provided judgment text, the court situates its reasoning within the framework established by these legislative provisions. The case underscores the continuity and application of the "saved provisions" from Part V of the 2002 Act, ensuring that appeals against "old decisions" remain governed by the original terms of Section 104, despite subsequent legislative changes.

Legal Reasoning

The court's legal reasoning hinged on interpreting whether the appellant's departure equated to the abandonment of his appeal. The key points include:

• Applicability of Section 104: The court determined that the unamended Section 104 of the Immigration Act 2002 was applicable, given the decision in question was an "old decision" saved under the 2014 amendments.
• Pending Appeal: An appeal remains "pending" until it is finally determined, withdrawn, or abandoned. The appellant's departure during this pending phase constituted abandonment.
• Judicial Review Impact: Even though a judicial review had quashed the previous refusal, the appeal remained pending awaiting a new determination, reinforcing the appellant's responsibility to maintain engagement with the process.

The court meticulously navigated the statutory language, distinguishing between the application of unamended and amended provisions, ultimately reaffirming the decision that departure leads to abandonment when the appeal is pending.

Impact

This judgment provides clarity on the procedural consequences of an appellant's departure from the UK during an ongoing appeal. It reinforces the notion that physical presence and engagement are critical to maintaining an active appeal. Future cases will reference this decision to determine the status of appeals in similar circumstances, ensuring consistency in the enforcement of abandonment under Section 104.

Moreover, it underscores the importance of understanding the interplay between original and amended legislative provisions, particularly for legal practitioners navigating immigration appeals post-2014 amendments.

Complex Concepts Simplified

• Section 104 of the Immigration Act 2002: This provision outlines when an immigration appeal is considered "pending," specifying the start and end points based on various conditions.
• Pending Appeal: An appeal is in a state of being unresolved, awaiting a final decision. It remains active until it is concluded or abandoned.
• Abandonment of Appeal: When an appellant withdraws from the appeals process, either formally or through inaction (such as leaving the country), the appeal is considered abandoned and no longer active.
• Judicial Review: A legal process where a court reviews the lawfulness of a decision or action made by a public body, such as a tribunal's decision.
• Saved Provisions: Legal clauses that remain in effect despite other changes or amendments to the broader legislative framework.

Conclusion

The Saimon [2017] decision serves as a significant precedent in UK immigration law, particularly concerning the abandonment of appeals due to an appellant’s departure from the United Kingdom. By affirming that leaving the country while an appeal is pending constitutes abandonment under Section 104 of the Immigration Act 2002, the Upper Tribunal provides clear guidance for both legal practitioners and appellants. This judgment ensures that the appeals process maintains its integrity, requiring active participation from appellants to sustain their legal challenges. The case highlights the critical balance between legislative provisions and procedural diligence, reinforcing the necessity for appellants to remain engaged throughout their legal proceedings.