[2023] UKUT 00165 (IAC)

At the start of the hearing we drew to the attention of Mr Malik and Ms Ahmed a recent authority Marepally v Secretary of State for the Home Department [2022] EWCA Civ 855; [2022] Imm AR 1341, where the Court of Appeal did not accept that a decision refusing leave under the Immigration Rules was invalid because of a failure to comply with the Notices Regulations. Marepally is discussed in more detail belowin paragraphs 40-44.

Mr Malik KC submitted that Marepally isdistinguishable because (a) it was concerned with whether leave had been extended under section 3C of the 1971 Act, which was not being argued in this case; (b) in Marepally it had been conceded that Mr Marepallycould not have succeeded in an appeal whereas in this case the appellant maintained (and continues to maintain) that he has a viable appeal against the 2016 decision; and (c) Mr Marepally’s purpose, in arguing that the decision was invalid, was to benefit from an extension of leave as a result of there not being a valid decision whilst the appellant, in contrast, claims to have suffered an injustice because he has been unable to challenge the substance of the 2016 decision. Mr Malik KC also highlighted that the conclusion in Marepally is qualified, in that it is not stated that a defective notice will necessarily be either effective or ineffective. He relied on the wording in paragraph 44 of Marepally which we have set out below in paragraph 41.

With respect to ground 1, Mr Malik KC submitted that the essential point in OI, which the judge failed to address, is that the failure to comply with the Notices Regulations in the 2016 decision meant that there had not been a lawful decision and the appellant consequently suffered an injustice because, in the absence of a lawful decision, he was unable to exercise the right of appeal to which he is entitled.

In response to being asked why the appellant did not amend his judicial review grounds once Sala was overturned in order to raise the appeal rights issue, Mr Malik KC stated that the appellant’s solicitors were unaware of these developments in the law.

With respect to ground 2, Mr Malik KC argued that the judge’s finding that the appellant’s prospect of succeeding in an appeal against the 2016 decision was negligible was made without engaging with the evidence indicating the contrary.

With respect to ground 3, Mr Malik KC repeated the submission in the grounds, that the judge was wrong to suggest that the Court of Appeal made new law when Sala was overturned.

Mr Malik KC did not make any submissions in respect of ground 4, which he acknowledged does not make a submission that is distinct from the other grounds.

Ms Ahmed made a range of arguments, addressing, in addition to the grounds of appeal, the relevance of Marepally and whether there was any basis for the appellant to claim to have suffered from a historical injustice. Her key points include: