Ved and Another (Appealable Decisions; Permission Applications; Basnet) [Asylum and Immigration Tribunal]
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Peter Lane |
| Judgment Date | 27 March 2014 |
| Neutral Citation | [2014] UKUT 150 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 27 March 2014 |
[2014] UKUT 150 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Eshun
UPPER TRIBUNAL JUDGE Peter Lane
For the appellants: Mr J. Chhotu, Counsel, instructed by Ved & Co Solicitors
For the respondent: Mr N. Bramble, Senior Home Office Presenting Officer
Ved and another (appealable decisions; permission applications; Basnet)
(1) A jurisdictional decision of the First-tier Tribunal, Immigration and Asylum Chamber, contained in a determination made after the appeal has passed the duty judge “screening” stage, is appealable to the Upper Tribunal: Practice Statement 3.4; Abiyat & others (Rights of appeal) [2011] UKUT 00314 (IAC) .
(2) Where the First-tier Tribunal has refused to entertain an application made to it for permission to appeal to the Upper Tribunal, the Upper Tribunal has discretion under rule 7 of the Tribunal Procedure (Upper Tribunal) Rules 2008 to consider an application for permission made to that Tribunal, notwithstanding that the requirements of rule 21(2)(b) have not been met, in that the First-tier Tribunal has not refused (or not admitted) a permission application. It is, however, unlikely that the Upper Tribunal would apply rule 7 so as to entertain a permission application in the case of a party who has not made any prior application to the First-tier Tribunal. Likewise, the Upper Tribunal can be expected summarily to reject an application for permission to appeal a decision that has been made under rule 9 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and in accordance with Practice Statement 3.1–3.3.
(3) The findings of the Upper Tribunal in Basnet (Validity of application – respondent) [2012] UKUT 00113 (IAC) depended upon there being an appealable immigration decision, which in that case can only have been a refusal to vary leave to remain within section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002. The Secretary of State's rejection of an application for leave as invalid is not an immigration decision within section 82 of the 2002 Act and cannot as such be appealed to the First-tier Tribunal.
Two questions arise in these proceedings:-
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(1) Where the First-tier Tribunal has refused to entertain an application made to it for permission to appeal to the Upper Tribunal, can the Upper Tribunal entertain an application for permission made directly to it?
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(2) Does an appeal lie to the First-tier Tribunal against a decision by the Secretary of State to refuse to accept an application to vary leave to remain, on the ground that the legal requirements for making a valid application were not met? In support of their contention that the answer to this question is yes, the appellants seek to rely upon the determination of the Upper Tribunal in Basnet (Validity of application – respondent) [2012] UKUT 00113 (IAC).
The appellants, husband and wife, are citizens of Tanzania born respectively on 8 February 1937 and 14 October 1941. They most recently entered the United Kingdom on 17 March 2012, in possession of visit visas. During the currency of their leave, the appellants submitted on 21 June 2012 application forms for indefinite leave to remain as the dependent relatives of their daughter, a person present and settled in the United Kingdom. On 8 August 2012, the respondent wrote letters to each of the appellants, acknowledging “Your attempted application for leave to remain in the United Kingdom” and stating that
“Your application is invalid and we are returning the application form and documents received from you. Please read this letter to ensure that you understand what you need to do in order to make a valid application.”
In each case the respondent's reason for refusal was that the necessary payment had not been made in connection with the application. Having gone on to explain that making a valid application, even if on the correct form and in compliance with the above requirements, does not guarantee the application will be successful”, the letter ended by saying that if “You still wish to make an application, you must return your fully completed application form with the appropriate fee to the address given on the application form”.
Both appellants submitted new applications. On 27 October 2012, however, the respondent wrote to the appellants to state that, once again, their applications were regarded as invalid. As before, the respondent considered that the correct payment had not been made.
The appellants purported to appeal to the First-tier Tribunal against the decisions articulated in the respondent's letters of August and October 2013. The appellants also launched judicial review proceedings in the High Court against those decisions. The judicial review proceedings were, according to Mr Chhotu, brought on a “precautionary” basis, in case the First-tier Tribunal proved unable to afford the appellants the relief they sought.
The grounds of appeal to the First-tier Tribunal relied heavily on the determination in Basnet. The notices of appeal passed through the hands of a Duty Judge of the First-tier Tribunal and the appellants' appeals were listed for hearing on 22 March 2013 in Birmingham. By means of a decision entitled “Determination and Reasons” promulgated on 28 March 2013, Immigration Judge Hawden-Beal decided that there were no valid appeals before the First-tier Tribunal.
We shall come in due course to the detail of Judge Hawden-Beal's reasons for finding that there was no valid appeal before her. For the present, however, it is sufficient to note that she heard oral evidence from Mr Vijay Ved (the appellants' solicitor) and from the husband of the sponsor, concerning the circumstances in which the two sets of applications had been made. The judge received detailed submissions from Mr Chhotu, for the appellants, and from Ms Khan, the Home Office Presenting Officer. The judge made findings of fact and of law, both of which were set out in her determination.
Rule 9 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 reads as follows:-
“ 9 Where the Tribunal may not accept a notice of appeal
(1) Where a person has given a notice of appeal to the Tribunal and the circumstances in paragraph (1A) apply, the Tribunal may not accept the notice of appeal.
(1A) The circumstances referred to in paragraph (1) are that—
(a) there is no relevant decision;
(b) the notice of appeal concerns the refusal of an application for entry clearance which was not made for a purpose falling within section 88A(1)(a) or (b) of the 2002 Act, and the notice of appeal does not rely on either of the grounds specified in section 88A(3)(a) of the 2002 Act; or
(c) the Lord Chancellor has refused to issue a certificate of fee satisfaction.
(2) Where the Tribunal does not accept a notice of appeal, it must—
(a) notify the person giving the notice of appeal and the respondent; and
(b) take no further action on that notice of appeal.”
The Senior President's Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal (2010, as amended) contain the following:-
“ 3 Where the Tribunal may not accept a notice of appeal
3.1 First-tier rule 9 (where the Tribunal may not accept a notice of appeal) imposes a duty on the Tribunal not to accept an invalid notice of appeal (in the circumstances described in rule 9(1A)) and to serve notice to this effect on the person who gave the notice of appeal and on the respondent.
3.2 The Tribunal will scrutinise a notice of appeal as soon as practicable after it has been given. First-tier rule 9 makes no provision for the issue of validity to be determined by means of a hearing or by reference to any representations of the parties.
3.3 Once the Tribunal has served the notice described in paragraph 3.1, First-tier rule 9 provides that the Tribunal must take no further action in relation to the notice of appeal. The decision under First-tier rule 9 is, accordingly, a procedural or preliminary decision.
3.4 The fact that a hearing date may have been given to the parties does not mean that the appeal must be treated as valid. Accordingly, if at a hearing (including a CMR hearing) it transpires that the notice of appeal does not relate to a decision against which there is, in the circumstances, an exercisable right of appeal, the Tribunal must so find; but it will do so in the form of a determination, rather than by means of a notice under First-tier rule 9.”
Certain decisions of the First-tier Tribunal and the Upper Tribunal are “excluded decisions” for the purposes of sections 11 and 13 of the Tribunals, Courts and Enforcement Act 2007, which govern appeals from respectively the First-tier Tribunal to the Upper Tribunal and from the Upper Tribunal to the relevant Appellate Court. Amongst the excluded decisions, which may not be appealed under those sections are:-
“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) Regulations 2006” (Article 3(m) of the Appeals (Excluded Decisions) Order 2009 (SI 2009/275 (as amended)).
In JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78, the Court of Appeal construed the appellate scheme which applied to the former Asylum and...
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