VOM (Error of law - when appealable) Nigeria
| Jurisdiction | UK Non-devolved |
| Judge | THE HON. MR JUSTICE MCCLOSKEY |
| Judgment Date | 10 August 2016 |
| Neutral Citation | [2016] UKUT 410 (IAC) |
| Date | 10 August 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2016] UKUT 410 IAC
The Hon. Mr Justice McCloskey, President,
Vice President Ockelton and
Upper Tribunal Judge Dawson
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
VOM (Error of law — when appealable) Nigeria
In a statutory appeal, the right of appeal under s 13 of the 2007 Act does not arise until the Upper Tribunal has completed the process required by s 12.
Appellant: Mr R Khubber, of counsel, instructed by Lawrence Lupin Solicitors
Respondent: Ms J Anderson, of counsel, instructed by the Government Legal Department
We emphasise at the outset that the Appellant has the protection of anonymity. Accordingly, unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.
This is a case in which both parties have been granted permission to appeal to the Upper Tribunal (the “UT”). We shall, for convenience, continue to describe the original appellant, VOM, as “the Appellant” and the Secretary of State for the Home Department, the original respondent, as “the Respondent”.
The issue hereby determined is whether a party to appeal proceedings in the Upper Tribunal (the “UT”) has a right to apply for permission to appeal to the Court of Appeal against a determination of the UT incorporating the twin elements of (a) finding an error of law in the decision of the First-tier Tribunal (the “FtT”) and setting such decision aside accordingly. While these are the specific contours of the question which has arisen in the instant case, it may be said that the broader question which arises is whether there is a right to apply for permission to appeal to the Court of Appeal against any act or determination of the UT which is not finally dispositive of the appeal of which it is seized. The resolution of this issue hinges on two provisions of primary legislation, namely Sections 12 and 13 of the Tribunals, Courts and Enforcement Act 2007 (the “2007 Act”).
The stimulus for the successive appeals to the FtT and the UT in these proceedings was a decision of the Secretary of State, dated 26 September 2013, refusing to revoke a deportation order made in respect of the Appellant, a national of Nigeria aged 38 years. This decision has generated the following series of judicial interventions:
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(a) By its decision promulgated on 01 August 2014 the FtT dismissed the ensuing appeal under the Immigration Rules and allowed it under Article 8 ECHR.
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(b) By a decision dated 15 August 2014 a Judge of the FtT refused the Appellant's application for permission to appeal to the UT.
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(c) The Secretary of State also applied to the FtT for permission to appeal to the UT and, by oversight, this application was not determined.
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(d) By the decision of a Judge of the UT dated 04 December 2014, which omitted to take cognisance of the oversight noted immediately above, both parties were granted permission to appeal to the UT. As regards the Appellant, the case made in the grounds of appeal was that the UT should have allowed his appeal under the Immigration Rules and Article 3 ECHR.
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(e) The last-mentioned decision was set aside in part for irregularity by a further decision of a Judge of the UT dated 19 November 2015.
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(f) By a separate decision of the same date the same Judge granted permission to the Secretary of State to appeal to the UT, based on arguable error of law in the appeal having been allowed under Article 8 ECHR.
The upshot of this entangled procedural history was a listing of the combined appeals before a Judge of the UT on 12 January 2016. This gave rise to the following determination dated 05 February 2016:
“The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law insofar as the assessment of exceptional circumstances in paragraph 398 of the Immigration Rules is concerned. I set aside the decision insofar as it relates to that finding. The First-tier Tribunal did not err in law in its findings with regard to Article 3 and I do not set aside that decision”.
The UT Judge formulated certain consequential case management directions relating to the provision of evidence and, further, provisionally relisting the appeal for hearing on 15 March 2016 for the purpose of remaking the decision of the FtT.
The last-mentioned judicial act of the UT was the impetus for an application by the Appellant, by a notice dated 25 February 2016, in the following terms:
“ The Appellant seeks permission to appeal to the Court of Appeal against the decision of the UT –
(i) On Article 8 ECHR and by way of the UT setting aside the decision of the FtT which had allowed the Appellant's appeal previously.
(ii) On Article 3 ECHR, by way of the UT concluding that there were no material errors of law in the determination of the FtT on this ground such that the FtT's decision should not be set aside and reconsidered”.
In short, the Appellant contends that the twofold conclusion of the UT Judge (a) finding an error of law in the decision of the FtT (to the Appellant's detriment) and (b) setting aside such decision in consequence is vitiated by error of law. For the purposes of this decision no exploration of the asserted errors of law is necessary.
The statutory lineage begins with certain provisions of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”). References in section 82 to “the Tribunal” denote the FtT.
Section 82
“ Right of appeal to the Tribunal
(1) A person (‘P’) may appeal to the Tribunal where –
(a) the Secretary of State has decided to refuse a protection claim made by P,
(b) the Secretary of State has decided to refuse a human rights claim made by P, or
(c) the Secretary of State has decided to revoke P's protection status.
(2) For the purposes of this Part —
(a) a ‘protection claim’ is a claim made by a person (‘P’) that removal of P from the United Kingdom —
(i) would breach the United Kingdom's obligations under the Refugee Convention, or
(ii) would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;
(b) P's protection claim is refused if the Secretary of State makes one or more of the following decisions —
(i) that removal of P from the United Kingdom would not breach the United Kingdom's obligations under the Refugee Convention;
(ii) that removal of P from the United Kingdom would not breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;
(c) a person has ‘protection status’ if the person has been granted leave to enter or remain in the United Kingdom as a refugee or as a person eligible for a grant of humanitarian protection;
(d) ‘humanitarian protection’ is to be construed in accordance with the immigration rules;
(e) ‘refugee’ has the same meaning as in the Refugee Convention.
(3) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.”
Section 104
“ Pending appeal
(1) An appeal under section 82(1) is pending during the period—
(a) beginning when it is instituted, and
(b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).
(2) An appeal under section 82(1) is not finally determined for the purpose of subsection (1)(b) while —
(a) an application for permission to appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007 could be made or is awaiting determination,
(b) permission to appeal under either of those sections has been granted and the appeal is awaiting determination, or
(c) an appeal has been remitted under section 12 or 14 of that Act and is awaiting determination.
(4A) An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom (subject to [subsection (4B)] 5).
(4B) Subsection (4A) shall not apply to an appeal in so far as it is brought on [a ground specified in section 84(1)(a) or (b) or 84(3) (asylum or humanitarian protection)] 6 where the appellant–
(b) gives notice, in accordance with [Tribunal Procedure Rules]
These provisions of primary legislation must be considered in tandem with those of the 2007 Act rehearsed above.”
While the principal ingredients of the statutory matrix are Sections 12 and 13 of the 2007 Act, we begin with Section 11, which provides in material part:
Section 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...
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