Recent Decisions of the Upper Tribunal (Immigration and Asylum Chamber) – February and March 2018

Shah (‘Cart’ judicial review: nature and consequences) [2018] UKUT 00051 (IAC)

(1) A judicial review challenge to the decision of the Upper Tribunal to refuse permission to appeal a decision of the First-tier Tribunal is a challenge to the lawfulness of the Upper Tribunal’s decision. It is emphatically not an opportunity for a party to raise new grounds of appeal against the decision of the First-tier Tribunal.

(2) Whether or not a person succeeds in obtaining permission of the High Court under CPR 54.7A to judicially review a decision to refuse permission to appeal, with the consequence that the decision is quashed, the Upper Tribunal will need to be satisfied that there is an error of law in the decision of the First-tier Tribunal before that decision can be disturbed. Judicial review grounds which fail to show the decision refusing permission was wrong in law are highly unlikely to lead to such a result.

(3) Those responsible for drafting judicial review grounds which are found by the Upper Tribunal to contain misrepresentations or other falsities may be referred by that Tribunal to the High Court, for consideration whether an explanation is required from the solicitors and/or counsel involved.


OO (Burma -TS remains appropriate CG) Burma [2018] UKUT 00052 (IAC)

TS (Political opponents–risk) Burma CG [2013] UKUT 00281 (IAC) remains appropriate country guidance on the risk to political opponents in Burma. 


Ahmed & Ors (valid application – burden of proof) [2018] UKUT 00053(IAC)

(1)   Central to the analysis in Basnet (validity of application – respondent) [2012] UKUT 113 (IAC) is the existence of a further procedure undertaken by the Secretary of State in order to process payment in relation to which applicants are not privy and over which they have no control. As such, it remains appropriate for her to bear the burden of proof.

(2)   The fact that an invalidity decision was not immediately challenged may be relevant in determining whether the legal burden, including an initial evidential burden requiring the Secretary of State to raise sufficient evidence to support her invalidity allegation, has been discharged.

(3)   Whether the Secretary of State ultimately discharges the legal burden of proof will depend on the nature and quality of evidence she is able to provide, having regard to the timing of any request for payment details and the reasons for any delay, balanced against any rebuttal evidence produced by an appellant.


Thapa & Ors (costs: general principles; s 9 review) [2018] UKUT 00054 (IAC)

(1) What emerges from the guidance in Cancino (costs – First-tier Tribunal – new powers) [2015] UKFTT 00059 (IAC) is that the power to award costs in rule 9 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008 is to be exercised with significant restraint and that detailed examinations of other decided cases are unlikely to assist in deciding whether to award costs under either of those rules.

(2) Section 9 of the Tribunals, Courts and Enforcement Act 2007, read with the relevant procedure rules, enables the First-tier Tribunal to review, set aside and re-decide a case where, on the materials available to the judge deciding an application for permission to appeal, an error of law has occurred and (as in the present case) a party has thereby been deprived of a fair hearing. In the present case, such a course would have avoided the need for the matter to come before the Upper Tribunal and have resulted in a more expeditious outcome.


Ahmad (scope of appeals) [2018] UKUT 00084(IAC)

 (1) A notice of removal window (Form RED.0004 (fresh)) is not an EEA decision for the purposes of the Immigration (European Economic Area) Regulations 2006. The notice cannot accordingly be appealed under those Regulations. Even if it could constitute a decision, the notice of removal window will constitute an EEA decision only if it concerns a person’s removal from the United Kingdom under regulation 19 of those Regulations.

(2) Section 85(1) of the Nationality, Immigration and Asylum Act 2002 does not enable the Tribunal hearing an appeal in the United Kingdom to treat that appeal as including an appeal which has been certified under section 94 as clearly unfounded and which, as a result, can be brought only once the appellant is outside the United Kingdom.

(3) A statement made by an appellant under section 120 of the 2002 Act in response to a One-Stop notice is a statement made to the Secretary of State or an Immigration Officer. Accordingly, a statement made only in a ground of appeal to the Tribunal is not a statement under that section.


BA (deprivation of citizenship: appeals) [2018] UKUT 00085 (IAC)

 (1) In an appeal under section 40A of the British Nationality Act 1981, the Tribunal must first establish whether the relevant condition precedent in section 40(2) or (3) exists for the exercise of the Secretary of State’s discretion to deprive a person (P) of British citizenship.

 (2) In a section 40(2) case, the fact that the Secretary of State is satisfied that deprivation is conducive to the public good is to be given very significant weight and will almost inevitably be determinative of that issue.

 (3)  In a section 40(3) case, the Tribunal must establish whether one or more of the means described in subsection (3)(a), (b) and (c) were used by P in order to obtain British citizenship. As held in Pirzada (Deprivation of citizenship: general principles) [2017] UKUT 196 (IAC) the deception must have motivated the acquisition of that citizenship.

(4)  In both section 40(2) and (3) cases, the fact that the Secretary of State has decided in the exercise of her discretion to deprive P of British citizenship will in practice mean the Tribunal can allow P’s appeal only if satisfied that the reasonably foreseeable consequence of deprivation would violate the obligations of the United Kingdom government under the Human Rights Act 1998 and/or that there is some exceptional feature of the case which means the discretion in the subsection concerned should be exercised differently.

(5)  As can be seen from AB (British citizenship: deprivation: Deliallisi considered) (Nigeria) [2016] UKUT 451 (IAC), the stronger P’s case appears to the Tribunal to be for resisting any future (post-deprivation) removal on ECHR grounds, the less likely it will be that P’s removal from the United Kingdom will be one of the foreseeable consequences of deprivation.

(6)  The appeal is to be determined by reference to the evidence adduced to the Tribunal, whether or not the same evidence was before the Secretary of State when she made her decision to deprive.


Elsakhawy (immigration officers: PACE) [2018] UKUT 00086 (IAC)

 1. The respondent’s instructions and guidance to immigration officers correctly reflect the operation of sections 66 and 67 of the Police and Criminal Evidence Act 1984 (PACE) and of the Immigration (PACE Codes of Practice) Direction 2013, in drawing a distinction between administrative enquiries and formal criminal enquiries. The fact that immigration officers have powers of investigation, administrative arrest and criminal arrest does not require them to follow the PACE codes of practice concerning the giving of a “criminal” caution, when questioning a person whom they reasonably suspect of entering into a marriage of convenience, in circumstances where the investigation is merely into whether an administrative breach has occurred.

2.  Section 78 of PACE, which gives a criminal court power to refuse to allow evidence which, if admitted, would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it, has little to say about the task facing a Tribunal, in civil proceedings under the EEA Regulations.


Quaidoo (new matter: procedure/process) [2018] UKUT 00087(IAC)

 1. If, at a hearing, the Tribunal is satisfied that a matter which an appellant wishes to raise is a new matter, which by reason of section 85(5) of the Nationality, Immigration and Asylum Act 2002, the Tribunal may not consider unless the Secretary of State has given consent, and, in pursuance of the Secretary of State’s Guidance, her representative applies for an adjournment for further time to consider whether to give such consent, then it will generally be appropriate to grant such an adjournment, rather than proceed without consideration of the new matter

 2. If an appellant considers that the decision of the respondent not to consent to the consideration of a new matter is unlawful, either by reference to the respondent’s guidance or otherwise, the appropriate remedy is a challenge by way of judicial review.


MT and ET (child’s best interests; ex tempore pilot) Nigeria [2018] UKUT 00088(IAC)

1.  A very young child, who has not started school or who has only recently done so, will have difficulty in establishing that her Article 8 private and family life has a material element, which lies outside her need to live with her parent or parents, wherever that may be.  This position, however, changes over time, with the result that an assessment of best interests must adopt a correspondingly wider focus, examining the child’s position in the wider world, of which school will usually be an important part.

2.  The giving of ex tempore decisions furthers the aim of dealing with immigration and asylum appeals as efficiently as possible. But any formal attempt to identify and manage in advance those cases which may lend themselves to the giving of ex tempore decisions needs careful handling; not least to ensure procedural fairness.


Charles (human rights appeal: scope) [2018] UKUT 00089 (IAC)

(i)         A human rights appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”) can be determined only through the provisions of the ECHR; usually Article 8.

(ii)        A person whose human rights claim turns on Article 8 will not be able to advance any criticism of the Secretary of State’s decision making under the Immigration Acts, including the immigration rules, unless the circumstances engage Article 8(2).

 (iii)       Following the amendments to ss.82, 85 and 86 of NIAA 2002 by the Immigration Act 2014, it is no longer possible for the Tribunal to allow an appeal on the ground that a decision is not in accordance with the law. To this extent, Greenwood No. 2 (para 398 considered) [2015] UKUT 00629 (IAC) should no longer be followed.


Baihinga (r. 22; human rights appeal: requirements) [2018] UKUT 00090 (IAC)

 1.  The scope for issuing a notice under rule 22 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (circumstances in which the Tribunal may not accept a notice of appeal) is limited. A rule 22 notice may be issued at the stage where the First-tier Tribunal scrutinises a notice of appeal as soon as practicable after it has been given. Where no rule 22 notice is issued at that stage and the matter proceeds to a hearing, the resulting decision of the First-tier Tribunal may be challenged on appeal to the Upper Tribunal, rather than by judicial review (JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78; Practice Statement 3).

2.  An application for leave or entry clearance may constitute a human rights claim, even if the applicant does not, in terms, raise human rights. In cases not covered by the respondent’s guidance (whereby certain applications under the immigration rules will be treated as human rights claims), the application will constitute a human rights claim if, on the totality of the information supplied, the applicant is advancing a case which requires the caseworker to consider whether a discretionary decision under the rules needs to be taken by reference to ECHR issues (eg Article 8) or requires the caseworker to look beyond the rules and decide, if they are not satisfied, whether an Article 8 case is nevertheless being advanced.

 3.  The issue of whether a human rights claim has been refused must be judged by reference to the decision said to constitute the refusal. An entry clearance manager’s decision, in response to a notice of appeal, cannot, for this purpose, be part of the decision of the entry clearance officer.

 4.  A person who has not made an application which constitutes a human rights claim cannot re-characterise that application by raising human rights issues in her grounds of appeal to the First-tier Tribunal.

Mark Musgrave