Entry Clearance Officer v AA (Uzbekistan); AA (Upper Tribunal - Review Power) Uzbekistan
| Jurisdiction | UK Non-devolved |
| Judge | Storey,Lindsley |
| Judgment Date | 28 April 2015 |
| Neutral Citation | [2015] UKUT 330 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 28 April 2015 |
[2015] UKUT 330 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Storey
UPPER TRIBUNAL JUDGE Lindsley
For the Appellant: Mr P Deller, Home Office Presenting Officer
For the Respondent: Ms F Allen of Counsel instructed by Aston Bond Law Firm
AA (Upper Tribunal — review power) Uzbekistan
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1. By virtue of rules 45 and 46 of the Tribunal Procedure (Upper Tribunal) Rules 2008 a condition precedent to a review is an application for permission to appeal against the decision of the Upper Tribunal.
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2. Pursuant to s.10 of the Tribunals, Courts and Enforcement Act 2007, rules 45 and 46 make no provision for an application for a review; the power is exercisable only on the initiative of the Upper Tribunal.
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3. The clear purpose behind rule 45, which is to provide a filter mechanism to help ensure that obvious errors based on oversight of a legislative provision or binding authority can be corrected (and set aside under rule 47) without unnecessarily burdening the Court of Appeal.
The respondent (hereafter “the claimant”) is a citizen of Uzbekistan born on 19 September 2004. On 10 May 2013, the appellant, the Entry Clearance Officer, Tashkent (hereafter “the ECO”) refused his application for entry clearance as a dependent child of his father, but on 20 May 2015 First-tier Tribunal (FtT) Judge Halliwell allowed his appeal against that decision. In allowing the appeal solely on Article 8 grounds the judge stated that where a person's Article 8 rights were at issue he could look at circumstances as they stood at the date of hearing, notwithstanding the statutory restriction against doing so imposed by s.85(5) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The ECO was granted permission to appeal to the Upper Tribunal against that allowance, but in a determination notified on 29 September 2014 Deputy Upper Tribunal Judge (DUTJ) Juss dismissed that application and held that the decision of Judge Halliwell was not vitiated by legal error.
What happened next was that on 2 October 2014 the Home Office Presenting Officers Unit (POU) sent a letter headed “Application for review under rule 45 of the Tribunal Procedure (Upper Tribunal) Rules 2008” stating that the Secretary of State “makes an application, under rule 45(1)(a), and in accordance with rule 46, for a review of the decision, promulgated on 29 September 2014, by DUTJ Juss”. In response to that letter UTJ Perkins directed that there be a hearing so that the UT could receive representations concerning this application and whether in the light of it to set aside the decision of DUTJ Juss.
Rules 45 and 46 provide:
“Upper Tribunal's consideration of application for permission to appeal
45. – (1) On receiving an application for permission to appeal the Upper Tribunal may review the decision in accordance with rule 46 (review of a decision), but may only do so if-
(a) when making the decision the Upper Tribunal overlooked a legislative provision or binding authority which could have had a material effect on the decision; or
(b) since the Upper Tribunal's decision, a court has made a decision which is binding on the Upper Tribunal and which, had it been made before the Upper Tribunal's decision, could have had a material effect on the decision.
(2) If the Upper Tribunal decides not to review the decision, or reviews the decision and decides to take no action in relation to the decision or part of it, the Upper Tribunal must consider whether to give permission to appeal in relation to the decision or that part of it.
(3) The Upper Tribunal must [provide] a record of its decision to the parties as soon as practicable.
(4) If the Upper Tribunal refuses permission to appeal it must [provide] with the record of its decision -
(a) a statement of its reasons for such refusal; and
(b) notification of the right to make an application to the relevant appellate court for permission to appeal and the time within which, and the method by which, such application must be made.
(5) The Upper Tribunal may give permission to appeal on limited grounds, but must comply with paragraph (4) in relation to any grounds on which it has refused permission.
[Note: Words in square brackets in paragraphs (3) and (4) were substituted from 1 November 2013 ( SI 2013/2067).]
46. - (1) The Upper Tribunal may only undertake a review of a decision pursuant to rule 45(1) (review on an application for permission to appeal).
(2) The Upper Tribunal must notify the parties in writing of the outcome of any review and of any rights of review or appeal in relation to the outcome.
(3) If the Upper Tribunal decides to take any action in relation to a decision following a review without first giving every party an opportunity to make representations, the notice under paragraph (2) must state that any party that did not have an opportunity to make representations may apply for such action to be set aside and for the decision to be reviewed again.”
[Note: Paragraph (1) was substituted from October 2011 ( SI 2011/2343).]
“Review” is defined by rule 41 to mean the review of a decision by the Upper Tribunal under section 10 of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”) which provides:
“10. Review of decision of Upper Tribunal
(1) The Upper Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 13(1) (but see subsection (7)).
(2) The Upper Tribunal's power under subsection (1) in relation to a decision is exercisable –
(a) of its own initiative, or
(b) on application by a person who for the purposes of section 13(2) has a right of appeal in respect of the decision.
(3) Tribunal Procedure Rules may –
(a) provide that the Upper Tribunal may not under subsection (1) review (whether of its own initiative or on application under subsection (2)(b)) a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules;
(b) provide that the Upper Tribunal's power under subsection (1) to review a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules is exercisable only of the tribunal's own initiative;
(c) provide that an application under subsection (2)(b) that is of a description specified for the purposes of this paragraph in Tribunal Procedure Rules may be made only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules;
(d) provide, in relation to a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules, that the Upper Tribunal's power under subsection (1) to review the decision of its own initiative is exercisable only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules.
(4) Where the Upper Tribunal has under subsection (1) reviewed a decision, the Upper Tribunal may in the light of the review do any of the following –
(a) correct accidental errors in the decision or in a record of the decision;
(b) amend reasons given for the decision;
(c) set the decision aside.
(5) Where under subsection (4)(c) the Upper Tribunal sets a decision aside, the Upper Tribunal must re-decide the matter concerned.
(6) Where the Upper Tribunal is acting under subsection (5), it may make such findings of fact as it considers appropriate.
(7) This section has effect as if a decision under subsection (4)(c) to set aside an earlier decision were not an excluded decision...
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