Singh (fee award: ancillary decision)

The appellant is a national of India, born on 30 January 1979. He appealed to a Judge of the First-tier Tribunal against the respondent's decision of 27 September 2012 refusing to vary leave to remain in the United Kingdom and deciding to remove him from the United Kingdom by way of directions. The judge allowed the appeal in respect of the purported decision under section 47 of the Immigration, Asylum and Nationality Act 2006, basing his decision on what was said by the Upper Tribunal in Adamally and Jaferi[2012] UKUT 00414 (IAC). Otherwise the judge dismissed the appeal. He also stated that having dismissed the appeal there could be no fee award.

The appellant sought permission to appeal against this decision, arguing that having allowed the appeal under section 47 the judge had failed to give reasons as to why it was deemed appropriate not to make a fee award and that it was clearly arguable that the appellant would have been entitled to some if not an entire fee award. Permission to appeal was granted by a Judge of the First-tier Tribunal on the appellant's grounds. In a response dated 21 January 2013 the Secretary of State opposed the appeal, arguing that the judge had directed himself appropriately.

At the hearing before us we asked the representatives at least initially to address us on the question of jurisdiction. Mr Malik had put in a skeleton argument and a number of authorities. He argued that paragraphs 2 and 3 of the Joint Presidential Guidance “Fee Awards in Immigration Appeals” were, with great respect, wrong in law and not binding. He invited us to depart from the guidance in this respect. If we were against him then we were asked nevertheless to determine the substantive issue given the number of cases where it arose and the absence of any provision in the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act) or in the Immigration Rules restricting our ability to determine substantive issues even though there had been a finding of lack of jurisdiction.

With regard to the Presidential Guidance, Mr Malik noted that it was said there that the decision on fees was not part of the determination and was an excluded matter for the purposes of sections 11 and 13 of the 2007 Act. He argued that it was proper to give guidance on questions of discretion but inappropriate to give guidance on questions of law. The question as to whether a decision on a fee award was appealable was a pure question of statutory interpretation.

Mr Malik then took us to the relevant statutory and other provisions, including section 11 of the 2007 Act which sets out rights of appeal to the Upper Tribunal and the specific definition of “excluded decisions” at section 11(5) several of which, as he noted, referred to different statutory provisions. Mr Malik made the point that the power to award fees was set out at section 29 of the 2007 Act, and argued that if Parliament had intended to exclude a section 29 fee award it would have said so in section 11(5) where excluded decisions were defined, as the power to make fee awards came from the statute itself so it could not be an incidental matter. It would be unattractive to say that it would be left to the Lord Chancellor, who had power under section 11(5)(f) to specify decisions of the First-tier Tribunal in an order.

It was the case that the Lord Chancellor had made the Appeals (Excluded Decisions) Order 2009 which at Article 3 set out a list of express decisions at sub-paragraphs (a) to (l) and there was no reference to fee awards. Again it was argued that if the Lord Chancellor had intended to exclude fee orders then he would have said so expressly as he had done in respect of the other types of decisions. As regards sub-paragraph (m), it could not be said that a decision as to whether to award fees was procedural or preliminary, and although it was arguable that it was an ancillary decision, that argument could not be sustained as it was part of the overall decision that a Tribunal made.

Mr Malik went on to refer us to what had been said by Sedley LJ in AS and RA[2009] EWCA Civ 1495, at paragraph 15, and argued that by analogy there was an unattractive argument in this case involving the obligation to seek judicial review to challenge a decision of the kind involved in this case. He argued that it was a presumption that Parliament would not have intended appellants to go to the Administrative Court to rectify errors in Immigration Judges' decisions.

Mr Malik also referred to the decision of the Supreme Court in Cart[2011] UKSC 28, in particular at paragraphs 22 to 29 of Lady Hale's judgment concerning the scheme of the 2007 Act which had been to set up a specialist Tribunal to deal with all the matters falling within its specialist area. He argued that to conclude that one could not appeal a fee award to the Upper Tribunal was inconsistent with the scheme of the 2007 Act and frustrated its purpose. It required an appellant to go to the Administrative Court rather than going to the Upper Tribunal which was precisely what the 2007 Act, properly construed, discouraged. It was therefore inconceivable that either Parliament in section 11 or the Lord Chancellor in the Excluded Decisions Order could have intended an outcome that would frustrate the scheme of the statute as a whole. It was argued that therefore the Presidential Guidance was wrong in law and that the Upper Tribunal had the power to decide the appeal.

In her submissions Ms Holmes argued, with respect to paragraph 11 of Mr Malik's skeleton, that it was an attempt to drag in wider issues which were not really relevant. She argued that in any event the appellant should not have had to pay a fee, noting what was said by Mr Malik at paragraph 7 of his skeleton concerning the proper interpretation of Article 5 of the Fees Order in relation to a section 47 case. She also took issue with the criticism of the Secretary of State set out at paragraph 11 of the skeleton, arguing that many of the decisions referred to had been made before the case law set out in that paragraph had been decided. Ms Holmes argued that what was said by Sedley LJ at AS was not germane to the issue in the case and was no more than an aside. The same could be said with respect to the remarks by Lady Hale concerning the structure of the 2007 Act. If there were cases where nevertheless matters were left to go on judicial review rather than on appeal to the Upper Tribunal then that was the way it was.

By way of reply Mr Malik argued that contrary to what had been asserted, what was said in AS and Cartwas relevant and the point was that there was a presumption that where Parliament set up a specialist body it intended it to deal with its errors internally, and that was the basis on which the statute should be construed. There was a clear definition of excluded decisions. The Upper Tribunal had jurisdiction in this case.

After a brief adjournment we communicated to the representatives our conclusion that we did not have jurisdiction to deal with the issue in this case and that we would provide our reasons in full subsequently which we now do, after setting out the relevant statutory and other regulatory provisions and guidance, which are as follows:

“ Tribunals, Courts and Enforcement Act 2007

• 11. Right to appeal to Upper Tribunal

  • (1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.

  • (2) Any party to a case has a right of appeal, subject to subsection (8).

  • (3) That right may be exercised only with permission (or, in Northern Ireland, leave).

  • (4) Permission (or leave) may be given by-

    • (a) the First-tier Tribunal, or

    • (b) the Upper Tribunal, on an application by the party.

  • (5) For the purposes of subsection (1), an “excluded decision” is-

    • (a) any decision of the First-tier Tribunal on an appeal made in exercise of a right conferred by the Criminal Injuries Compensation Scheme in compliance with section 5(1)(a) of the Criminal Injuries Compensation Act 1995 (c. 53) (appeals against decisions on reviews),

    • (b) any decision of the First-tier Tribunal on an appeal under section 28( 4) or (6) of the Data Protection Act 1998 (c. 29) (appeals against national security certificate),

    • (c) any decision of the First-tier Tribunal on an appeal under section 60( 1) or (4) of the Freedom of Information Act 2000 (c. 36) (appeals against national security certificate),

    • (d) a decision of the First-tier Tribunal under section 9-

      • (i) to review, or not to review, an earlier decision of the tribunal,

      • (ii) to take no action, or not to take any particular action, in the light of a review...