Sandip Singh v The Secretary of State for the Home Department

Hearing dates: 19 March 2014

Introduction

This appeal concerns the jurisdiction of the Upper Tribunal to consider appeals against decisions of the First-Tier Tribunals to make or not to make a fee award. It is brought against the determination of the Upper Tribunal promulgated on 18 April 2013, to decline to hear such an appeal on the ground it had no jurisdiction to do so. If the appeal fails, the appellant invites the court (sitting as the Divisional Court) to give him permission to apply for judicial review of the First-tier Tribunal's decision to refuse to make a fee award in his favour. We indicated at the start of the hearing, that the court would hear argument on the application, without deciding any of the issues it raised.

For the reasons that follow I would dismiss the appeal. In summary in my view the Upper Tribunal was right to conclude it had no jurisdiction for the reasons it gave. I have also concluded the judicial review application is not arguable and I would therefore refuse leave.

The statutory framework

In order to determine the jurisdiction point, it is necessary to consider the relevant statutory framework. I also refer to the Joint Presidential Guidance issued in relation to fee awards, as it is part of the appellant's argument before us that in reaching its decision, the Upper Tribunal followed that guidance, and it was wrong to do so. The provisions are set out more fully in an annexe to the judgments with emphasis given to those parts that are particularly relevant to this appeal.

AppealsSection 11 of the in the Tribunals, Courts and Enforcement Act 2007 ('the 2007 Act') provides for a right of appeal on a point of law to the Upper Tribunal from the First-tier Tribunal, as set out in that section, and a similar provision, section 13, provides for a right of appeal on a point of law to the relevant appellate court (the Court of Appeal in this jurisdiction) as set out in that section.

Excluded Decisions There is no right of appeal under sections 11 or 13 however against an " excluded decision" (see section 11(1) and 13(1)). The excluded decisions are listed in sections 11(5) and 13(8). Materially for the purposes of this appeal, section 11 (5) (f) provides that an excluded decision includes " any decision of the First-tier Tribunal that is of a description specified in an order made by the Lord Chancellor."

The Excluded Decisions Order The Lord Chancellor made such an order in the exercise of the power conferred by section 11(5)(f) and 13(8)(f) of the 2007 Act specifying additional decisions which for the purposes of sections 11(1) and 13(1) of the 2007 Act are excluded from a right of appeal from the First-tier Tribunal to the Upper Tribunal, or from the Upper Tribunal to the relevant appellate court as the case may be (the Appeals (Excluded Decisions) Order 2009/275 as amended by the Miscellaneous Provisions Order 2010/41 ('the Excluded Decisions Order')).

Included in the list of such excluded decisions in Article 3 of the Excluded Decisions Order are: "(m) any procedural, ancillary or preliminary decision made in relation to an appeal against a decision under section 40A of the British Nationality Act 1981, section 82, 83 or 83A of the Nationality, Immigration and Asylum Act 2002, or regulation 26 of the Immigration (European Economic Area) Regulation 2006."

The Excluded Decisions Order was laid before Parliament on 12 January 2010. It came into force on 15 January 2010 and two earlier such orders (the Appeals (Excluded Decisions) Order 2008 and the Appeals (Excluded Decisions) (Amendment) Order) were revoked.

Fees Fees were introduced for appeals heard in the Immigration and Asylum Chamber of the First-tier Tribunal by the First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011/2841 ('the Fees Order) which came into effect on 19 December 2011. The fee is £80 where a person consents to an appeal without a hearing, and £140 where they do not consent (Article 3). The Fees Order also provides that fees are not payable for certain types of appeal (Article 5); and that fees can be deferred, reduced, remitted or refunded in certain circumstances (Article 7). Amongst those appeals exempted from the payment of fees by Article 5 (vii) are appeals in respect of a removal decision under section 47. Specifically, Article 5 (1)(a)(vii) provides that " No fee is payable for— (a) an appeal against a decision made under-…(vii) section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave).

CostsSection 29 of the 2007 Act makes provision for costs in relation to proceedings in the First-tier Tribunal and the Upper Tribunal. Sections (1) and (2) of section 29 provide that "The costs of and incidental to … all proceedings in the First-tier Tribunal …shall be in the discretion of the Tribunal in which the proceedings take place" and that "The relevant Tribunal shall have full power to determine by whom and to what extent the costs are to be paid."

Presidential Guidance As a result of the introduction of fees for appeals in tribunals, Joint Presidential Guidance was issued in relation to fee awards in Immigration Appeals, to " assist judges who have to decide fee awards" which said, amongst other matters: " Provision for a "fee award" is a new element for appeals to the FtTIAC. The making of an award is to be decided by the judge on the evidence before him or her and dealt with in the determination following the decision on outcome. The decision on fees is not part of the determination and is an excluded matter for the purposes of ss.11 and 13 of Tribunals, Courts and Enforcement Act 2007…"

The Factual background

The appellant is a citizen of India, now aged 35, who entered the United Kingdom as a Tier 4 (General) Student with leave to remain until 30 July 2012. On the 30 July 2012, he applied for further leave to remain as a Tier 2 (Minister of Religion) Migrant under the Points Based System (the PBS). On the 27 September 2012 the respondent refused the appellant's application (on the ground that the appellant did not meet the relevant requirements and could not be awarded the required number of points) and also made a removal decision under section 47 of the Nationality, Immigration and Asylum Act 2006 (section 47). The appellant, having paid the fee of £140, appealed against the refusal and removal decisions under section 82 of the Nationality, Immigration and Asylum Act 2006.

After receiving oral submissions from the respondent and written submissions from the appellant, on 10 December 2012 the First-tier Tribunal (Judge Scott) promulgated its decision on the appellant's appeal. The First-tier Tribunal determined the respondent's decision to refuse leave to remain was lawful, rejecting the various arguments advanced by the appellant in support of his appeal. The judge noted that though a Tier 2 (Minister of Religion) applicant must have certain specified qualifications the appellant had only submitted a letter from a college giving the name of a course and its start and end dates. The judge said: "…unsurprisingly, the respondent found this did not satisfy the requirement…". The appellant had also failed to provide a valid Certificate of Sponsorship assigned by a Tier 2 licensed sponsor and the respondent was not satisfied in the absence of such a certificate that the appellant had any prospective sponsor to certify his maintenance. The judge rejected the appellant's submissions that he should have been allowed an opportunity to supply missing documents and that the decision was in breach of his Article 8 rights.

However, the judge also found the removal decision was unlawful and without effect, but only because the removal decision under section 47 had been made concurrently with the decision refusing leave to remain: see Adamally (Section 47 Removal Decisions: Tribunal Procedures)[2012] UKUT 00414 (IAC), a decision recently approved in Rahman v SSHD [2014] EWCA 11. He therefore said, "… to that extent only the appeal falls to be allowed." In a section coming after the decision and his signature the judge made a note to the respondent, which said: "I have dismissed the appeal and therefore there can be no fee award."

The appellant appealed against the First-tier Tribunal's decision to make no fee award on a number of grounds. It was said that the decision of the First-tier Tribunal was 'one decision' and having allowed the appeal against the section 47 decision, the appeal should have been allowed in its entirety (from which it followed that a fee award should have been made). Further, although the appeal under section 47 had been allowed, the judge had given no reasons why he had not "deemed it appropriate to make a fee award in favour of the appeal" and in any event it was arguable that the appellant was entitled to some if not all of the fee award. On 4 January 2013 the First-tier Tribunal granted the appellant permission to appeal to the Upper Tribunal.

On 18 April 2013 the Upper...