Katsonga ("Slip Rule"; FtT's general powers)
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton,Martin |
| Judgment Date | 29 January 2016 |
| Neutral Citation | [2016] UKUT 228 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 29 January 2016 |
[2016] UKUT 228 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr C M G Ockelton, VICE PRESIDENT
UPPER TRIBUNAL JUDGE Martin
For the Appellant: Mr J Howard, instructed by Fountain Solicitors.
For the Respondent: Mr A McVeetie, Home Office Presenting Officer.
Katsonga (“Slip Rule”; FtT's general powers)
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1. The ‘Slip Rule’, rule 31 of the First-tier Tribunal Procedure Rules, cannot be used to reverse the effect of a decision.
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2. Following the repeal by the 2014 Act of subsections (3) to (6) of s 86 of the 2002 Act, the First-tier Tribunal appears to have no duty or power to ‘allow’ or ‘dismiss’ an appeal.
These proceedings concern Ms Jane Milambo Katsonga, who appears to be a national of either Zimbabwe or Zambia or both. She came to the United Kingdom in June 2004 on a six month visit visa. On the expiry of that visa she remained without leave. In February 2014 she claimed asylum, asserting that she was from Zimbabwe and giving a history of difficulties there before she left some ten years previously. She also claimed that as she had resided in the United Kingdom for ten years, although she appeared to have formed no close relationships, her removal would breach her rights under article 8 of the European Convention on Human Rights.
The Secretary of State refused her claims in a letter dated 29 August 2014. The Secretary of State noted that, although she now claimed to be Zimbabwean for the purposes of a refugee claim, she had previously supported applications for visas with a Zambian passport. Her credibility was further damaged by the delay before making her claim. She failed to provide any substantiation of her claimed history. If there were any substance in it she would be able to relocate to another part of Zimbabwe and be employed there. Her article 8 claim fell outside the rules and her circumstances where not such as to give her a right to remain in the United Kingdom despite not meeting the requirements of the rules. The consequential decision that she should be removed from the United Kingdom is dated 3 September 2014.
Ms Katsonga appealed. There was a case management hearing before the First-tier Tribunal, but then the appeal was adjourned on two or three occasions before coming before Judge O'Rourke for a substantive hearing on 13 May 2015. Judge O'Rourke heard oral evidence from the appellant, who appeared in person and made submissions. There were also submissions on behalf of the respondent. The judge found that the appellant had no well-founded fear of persecution in either Zambia or Zimbabwe. At paragraph 22(ii) the judge found that the appellant would find it difficult to readjust to life in Zimbabwe but given that she was effectively destitute in the United Kingdom she would be no worse off in Zimbabwe. So far as article 8 was concerned, the appellant accepted that she had no family life in the United Kingdom and the judge gave at paragraph 24 reasons for considering that her return to Zambia or Zimbabwe would not cause a disproportionate interference in her article 8 rights. Following that paragraph is the heading “Notice of Decision”, under which there are three sentences as follows:
“The appeal is refused on asylum grounds.
The appeal is refused on humanitarian protection grounds.
The appeal is allowed on human rights grounds.”
The determination is dated 13 May 2015 and was sent out on 14 May 2015. Applications for permission to appeal against that decision were submitted by a Home Office Presenting Officer on behalf of the Secretary of State and by solicitors on behalf of the appellant. The Home Office application set out grounds as follows:
“The judge of the First-tier Tribunal has made a material error of law in the determination.
Application for amendment of determination (Rule 60 Procedure Rules).
Please find attached determination of Immigration Judge O'Rourke under cover of an IA60 Notice dated 15/05/2015, allowing the appeal of Ms J Milambo Katsonga against the decision of the Secretary of State to refuse her application for asylum.
The decision to allow the appeal appears to be inconsistent with the Immigration Judge's findings of fact. The decision to allow the appeal seems therefore to be a “slip of the pen” and amenable to amendment pursuant to the Slip Rule. Please treat this as an application for the determination to be amended pursuant to Rule 60(1) of the 2005 Procedure Rules.
This application was served on the appellant….”
The appellant's application for permission to appeal was supported by...
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MH (Review; Slip Rule; Church Witnesses) Iran
...of State for the Home Department [2000] 3 All ER 449; [2000] Imm AR 271; [2000] INLR 122 Katsonga (“Slip Rule”: FtT's general powers) [2016] UKUT 228 (IAC) Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6; [2016] 1 WLR 597 MA (Somalia) v Secretary of State for the Home Department [2......
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As (Afghanistan) v Secretary of State for the Home Department
...that question are immaterial. As the Upper Tribunal (Mark Ockelton V-P and UTJ Martin) put it at para. 9 of its decision in Katsonga [2016] UKUT 00228 (IAC): “It is because the judge can use the slip rule only to make his original meaning plain rather than to change his original decision, ......
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The Secretary of State for the Home Department v Yagnesh Devani
...by the appeal route was based on the decision of the UT (comprising the Vice President, Mr Ockelton, and UTJ Martin) in Katsonga [2016] UKUT 228 (IAC). In that case, like this, a judge in the FTT promulgated a decision which allowed the appellant's appeal on human rights grounds when it wa......
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Upper Tribunal (Immigration and asylum chamber), 2021-01-27, [2021] UKUT 34 (IAC) (Binaku (s. 11 TCEA; s. 117C NIAA; para 399D))
...to consider this challenge. Having first concluded at paragraphs 23-24 that the case of Katsonga ("Slip Rule"; FtT's general powers) [2016] UKUT 228 (IAC) was wrongly decided (see also MH (review; slip rule; church witnesses) Iran [2020] UKUT 125 (IAC)), Underhill LJ (with whom Nicola Davie......
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First-Tier Tribunal Onward Immigration Appeals - A Practical Guide
...UKUT 00125 (IAC), overruling Katsonga v Secretary Of State For The Home Department ("Slip Rule" : FtT's general powers : Zimbabwe) [2016] UKUT 228 (IAC). Cart Judicial The refusal of permission to appeal to the Upper Tribunal, following an application to the Upper Tribunal, is an "excluded ......