Vigneswaran (abandonment: s 104(4B))

Factual and Procedural Background

The appellant, a national of Sri Lanka, arrived in the United Kingdom in 2010 and was detained. He applied for asylum but was refused, and his initial appeal was unsuccessful. He failed to comply with reporting conditions from 14 February 2012 to 24 January 2013, when he was detained again. He made further submissions supporting his asylum claim, which were refused in a new appealable decision on 11 February 2014. The appellant appealed on asylum and human rights grounds and argued that the decision was unlawful. The appeal was heard on 27 March 2014 by Judge Kempton, who dismissed it. The appellant then sought permission to appeal to the Upper Tribunal.

Permission to appeal was initially refused by the First-tier Tribunal but granted on renewal by Upper Tribunal Judge Freeman. Subsequently, the Vice President of the Upper Tribunal issued a decision on 14 October 2014, without a hearing, allowing the appeal to the Upper Tribunal and remitting it to Judge Kempton to determine according to law, specifically on a limited point concerning the appellant’s asylum claim related to alleged visits to his wife by Sri Lankan authorities.

Unbeknownst to the Tribunal, the Secretary of State granted the appellant 30 months’ leave to remain on 4 September 2014. When the matter returned to Judge Kempton, the Secretary of State argued that the appeal had been abandoned by operation of section 104 of the Nationality, Immigration and Asylum Act 2002. Judge Kempton accepted this argument. The appellant now appeals contending that Judge Kempton erred in law in so finding.

Legal Issues Presented

1. Whether the grant of leave to remain under section 104(4A) of the Nationality, Immigration and Asylum Act 2002 results in the automatic abandonment of an appeal before the Upper Tribunal.
2. Whether the appellant’s failure to give notice of intention to pursue the appeal pursuant to section 104(4B) and the Upper Tribunal Rules affects the validity of the abandonment.
3. Whether Judge Kempton erred in law in concluding that the appeal had been abandoned by operation of the statute and rules.

Arguments of the Parties

Appellant's Arguments

• The appellant contended that it was unfair to apply the statutory provisions to treat the appeal as abandoned because he had prepared to argue his Refugee Convention claim before the Tribunal.
• His representative argued that, given the procedural history and the absence of objection after the Vice President’s letter, the failure to give the statutory notice should be treated as if the notice had been given.
• Before the court, it was submitted that the failure to inform the Tribunal about the grant of leave and to give notice should be equated with the exercise of the choice to pursue the appeal.

Respondent's Arguments

• The Secretary of State argued that the appeal was abandoned by operation of section 104 of the Nationality, Immigration and Asylum Act 2002 following the grant of leave to remain.
• It was submitted that the appellant had not complied with the procedural requirement to notify the Upper Tribunal of the grant of leave or to give notice of intention to continue the appeal within the prescribed time limits.
• The Secretary of State maintained that any proceedings after the abandonment were without jurisdiction.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court examined the statutory provisions of section 104 of the Nationality, Immigration and Asylum Act 2002, which provide that an appeal is treated as abandoned if the appellant is granted leave to remain in the United Kingdom unless the appellant gives notice of intention to pursue the appeal on asylum or humanitarian protection grounds within a strict time limit. The relevant Upper Tribunal Rules and Practice Directions impose a mandatory requirement to notify the Tribunal and the respondent within 28 to 30 days of the grant of leave, with no discretion to extend this period.

The court found that neither party notified the Tribunal of the grant of leave, and the appellant did not give any notice indicating an intention to pursue the appeal within the prescribed time. The appellant’s argument that the failure to give notice should be treated as giving notice was rejected as it would undermine the clear statutory scheme which affords the appellant a choice: either accept the grant of leave as settling the matter or pursue the appeal by complying with the procedural requirements.

The court emphasized that the appellant and his representatives were taken by surprise by the legal consequences of the grant of leave and the procedural rules but that ignorance or failure to act does not equate to compliance. Consequently, the appeal was properly treated as abandoned by operation of law on the date the time for giving notice expired, rendering subsequent proceedings without jurisdiction.

Accordingly, Judge Kempton was correct in concluding that the appeal had been abandoned and that the remittal was ineffective because the statutory abandonment had already taken effect.

Holding and Implications

The court’s final decision was to UPHOLD the determination that the appeal was abandoned by operation of section 104 of the Nationality, Immigration and Asylum Act 2002 due to the grant of leave to remain and the appellant’s failure to give notice of intention to pursue the appeal within the required time.

The direct effect of this decision is that the appellant’s appeal cannot proceed and the remittal to the First-tier Tribunal was ineffective. The appellant’s only recourse would be to pursue further appeal rights beyond the Upper Tribunal, if available. No new legal precedent was established; the decision reaffirmed the strict application of the statutory scheme governing abandonment of appeals following grants of leave to remain.