UK Immigration & Nationality Lawyers

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Lamichhane: No duty to serve a ‘one-stop’ notice

A ‘one-stop’ notice allows an applicant to raise further grounds for the grant of leave to remain which are outside the scope of their original application.  Its purpose is to ensure that an applicant will have all appealable decisions considered in one appeal hearing. The notice can be served at any point by the Secretary of State.  If served after appeal proceedings have been instigated, the Tribunal has the power to consider the additional grounds under section 85(2) of the Nationality, Immigration and Asylum Act 2002.

In the recent case of Lamichhane v Secretary of State for the Home Department [2012] EWCA Civ 260, the Court of Appeal found that there was no duty to on the Secretary of State to serve a section 120 notice.  Reference was made to the case of AS (Afghanistan) v Secretary of State for the Home Department [2011] 1 WLR 385, where it was found that the Tribunal has no jurisdiction to consider the new matters in absence of a section 120 notice.  Therefore the power of the Tribunal to consider new grounds is restricted to the Secretary of State’s discretion, which does not appear to have a cogent procedure for its exercise.

The ‘one-stop’ appeal was intended to circumvent a prolonged and costly process.  However, where no notice is served and an appellant has an alternative basis of stay, they will have to make a second application once their appeal against the first decision is determined.  At this stage the individual may be in the UK unlawfully or have to leave to make an application for entry clearance.

Section 96 of the Nationality, Immigration and Asylum Act 2002 allows the Secretary of State to certify decisions where the applicant should have raised the grounds in a previous appeal, thus promulgating the ‘one-stop’ appeal process.  However, the Court of Appeal found that section 96(1) cannot be used to certify decisions where there has been no notice 120 served.  The Court considered that the use of the word ‘raised’ must mean ‘lawfully raised’.  Therefore where no notice 120 is served, the appellant cannot lawfully raise additional grounds.

In summing up his judgement, Lord Justice Stanley Burnton advised that if section 96(1) of the 2002 Act has less practical effect than the Secretary of State expected, the remedy is in her hands. It is to serve a section 120 notice whenever she makes an immigration decision.’ In other words, there may be no duty on the Secretary of State to service a notice, but it is in the best interest of all parties that one be served in every case.

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