Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16224/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
on 10 August 2016
On 11 August 2016

Before

UPPER TRIBUNAL JUDGE HANSON

Between

BASHARAT MEHMOOD MALIK
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Ali Instructed by Maliks and Khan Solicitors
For the Respondent: Ms Aboni Home Office Presenting Officer.

DETERMINATION AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge Parkes who at a hearing at Sheldon Court in Birmingham on the 25 November 2015, after hearing from the advocates, found there was no valid appeal and instructed the administration to issue a notice to that effect. Accordingly a letter dated 26 November 2015 was sent to the parties containing the following text:

NOTICE OF APPEAL WHERE THERE IS NO RELEVANT DECISION ETC

You have given a notice of appeal against a decision of the Respondent.

The decision against which you are seeking to appeal is not one against which there is an exercisable right of appeal to the First-tier Tribunal or is one where the notice of appeal falls within rule 22 (2) (a) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Accordingly the notice of appeal you have lodged is invalid and the Tribunal will take no further action in relation to it.

2. The Judges note appears to refer to submissions that the method of challenge should have been by way of judicial review, that there is no regulation 26 appeal conferring an in-county right of appeal as regulation 27(i)(c) applies, and as the appellant is still in the UK there is no valid appeal.
3. Regulation 27(i)(c) provides that a person may not appeal under regulation 26 whilst he is in the United Kingdom against an EEA decision to refuse to issue him with a family permit. Regulation 2 of the Immigration (European Economic Area) Regulations 2006 (as amended) defines a family permit in the following terms:

"EEA family permit" means a document issued to a person, in accordance with regulation 12, in connection with his admission to the United Kingdom.

4. Regulation 12 sets out the circumstances in which an Entry Clearance Officer must issue a family permit to a person meeting the various criteria.
5. The application in this case related to a residence card sought as confirmation of a right of residence as the spouse of an EEA national exercising Treaty rights in the United Kingdom, which was refused on the basis the marriage was said to be a marriage of convenience. A residence card is defining in Regulation 2 as:

"residence card" means a card issued to a person who is not an EEA national in accordance with regulation 17, as proof of the holder's right of residence in the United Kingdom on the date of issue.

6. There is, arguably, a clear difference in the definition of a family permit as opposed to a residence card. As a family permit is issued by an Entry Clearance Officer the applicant is ordinarily outside the UK. As such any appeal against the refusal will be issued with the appellant out of country. An applicant for a residence card is ordinarily in the UK. The refusal to issue the residence card in this case confers upon the appellant a right of appeal under regulation 26.
7. At the hearing it was accepted that the finding that the decision under appeal is the refusal of a family permit is incorrect as it is the refusal to issue a residence card.
8. Ms Aboni submitted that even if the Judge was in error in relation to this element there was no jurisdiction for the Upper Tribunal to hear the case as a finding as to the validly of an appeal is an excluded decision. It is said the challenge should have been by way of judicial review.

Discussion

9. A similar issue was considered by the Upper Tribunal in Ved and another (appealable decisions; permission applications; Basnet) [2014] UKUT 00150 (IAC) where it was found:

3. A jurisdictional decision in a determination of the First-tier Tribunal (IAC) can be appealed.

8. 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."

9. 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."

10. 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)).

11. 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 Immigration Tribunal, which for present purposes is not materially different from that under the 2007 Act. The effect of the Court's judgment is that, once the time for applying rule 9 of the 2005 Rules has passed, a jurisdictional decision is appealable, rather than only being susceptible to judicial review. In order to reflect this important principle, Practice Statement 3.4 provides that, although the holding of a hearing of an appeal does not prevent the judge from finding there is, in the circumstances, no exercisable right of appeal, the proper means of recording such a decision is in the form of a determination, rather than a notice under rule 9 of the 2005 Rules. The result of this is that the rule 9 procedure applies only to the preliminary "screening" stage at which a Duty Judge of the First-tier Tribunal scrutinises notices of appeal.

12. Practice Statement 3.4 was considered in some detail by the Upper Tribunal in Abiyat & Others (Rights of appeal) [2011] UKUT 00314 (IAC). Mr C M G Ockelton, Vice-President, held that a decision as to jurisdiction was not a "procedural" decision. Furthermore, a jurisdictional decision made otherwise than pursuant to rule 9 at the "screening" stage, cannot be categorised as a "preliminary" decision:-

"I conclude that JH (Zimbabwe) essentially decides that a decision as to jurisdiction made after the Tribunal has begun to consider an appeal, including a case where its consideration is limited to the issue of whether there is jurisdiction, is not procedural, and is not preliminary in the sense intended by the legislation governing the asylum and immigration tribunals." [21]

13. Notwithstanding the judgment in JH (Zimbabwe), the determination in Abiyat and the provisions of Practice Statement 3.4, Judge Hawden-Beal's determination was sent to the parties by the First-tier Tribunal's administration in Birmingham under cover of the following document:-

"Notice of Appeal where there is no Relevant Decision

You have given a notice of appeal against the decision of the Respondent.

The decision against which you are seeking to appeal is not one against which there is an exercisable right of appeal to the First-tier Tribunal or is one where the notice of appeal falls within rule 9(1A)(b) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. Accordingly the notice of appeal you have lodged is invalid and the Tribunal will take no further action in relation to it."

14. It was plainly wrong for such a notice to have accompanied Judge Hawden-Beal's determination. The only proper time to use that notice is at what we have termed the "screening" stage, where a notice of appeal is scrutinised by a Duty Judge, who considers that rule 9 applies. In the present case, what the parties should have received from the First-tier Tribunal was a notice stating that a determination was enclosed and explaining how a party dissatisfied with that determination could challenge it by applying to the First-tier Tribunal for permission to appeal to the Upper Tribunal, pursuant to section 11 of the 2007 Act.

4. The First-tier Tribunal's refusal to entertain the application for permission to appeal

15. Undaunted by the misleading notice, those acting for the appellants filed an application with the First-tier Tribunal for permission to appeal. On 12 April 2013 the First-tier Tribunal, from its office in Leicester, wrote to the appellants' solicitors as follows:-

"Your application for permission to appeal cannot be entertained by the Upper Tribunal (sic). This is because the decision of the First-tier Tribunal you seek to challenge is an excluded decision and therefore no appeal against it lies to the Upper Tribunal: see section 11 of the Courts, Tribunals and Enforcement Act 2007 (sic) and, in particular, the order made pursuant to section 11(5)(f): the Appeals (Excluded Decisions) Order 2009 (as amended)."

16. It is unclear whether the letter of 12 April followed any judicial scrutiny of the appellants' application. In any event, it was not only ineptly drafted but, in the circumstances, wrong in law.

17. In so finding, we are not to be taken as saying that a (better-drafted) version of the 12 April letter should not be sent whenever a notice of appeal has been rejected by a Duty Judge, acting pursuant to rule 9. On the contrary, where the rule 9 procedure has been followed by that Judge and a person seeks to appeal the outcome, he or she should be told that the rule 9 decision is an excluded decision, which cannot be appealed to the Upper Tribunal. But, as the present case bears witness, such letters must not be used in connection with decisions of the First-tier Tribunal that are given in the form of determinations.

5. The Upper Tribunal's response to the application for permission to appeal

18. Following their rebuff by the First-tier Tribunal, the appellants filed completed form IAUT-1, seeking permission to appeal from the Upper Tribunal itself. On 6 August 2013 the Upper Tribunal at Field House wrote to the appellants as follows:-

"You have submitted to the Upper Tribunal an application for permission to appeal against the determination of the First-tier Tribunal. This, however, cannot be entertained by the Upper Tribunal because Rule 21(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides that a person may apply to the Upper Tribunal for permission to appeal only if an application has been made to the First-tier Tribunal and has been refused. It is not apparent that this is the case and no further action can be taken in respect of the application you have made to the Upper Tribunal."

19. Rule 21(2) of the Upper Tribunal Rules reads as follows:-

"(2) A person may apply to the Upper Tribunal for permission to appeal to the Upper Tribunal against a decision of another tribunal only if:-

(a) they have made an application for permission to appeal to the tribunal which made the decision challenged; and

(b) that application has been refused or has not been admitted."

20. As can immediately be seen, the letter of 6 August is inaccurate, in so far as it refers only to an application to the First-tier Tribunal having "been refused". No reference is made to the alternative possibility, whereby the application "has not been admitted".

10. The appeal was received by the Tribunal on the 5 May 2015 and notice of hearing was sent to the parties on 3 July 2015. The issue of jurisdiction was not raised by the respondent and the hearing set down for 25 November 2015. Notice was sent that the appeal had been put on the reserved list, on 17 November 2015, but again no issue of jurisdiction was taken.
11. The Asylum and Immigration Tribunal (Procedure) Rules 2005 have been replaced by The Tribunal Procedure (First-tier Tribunal) (Immigration and
12. Asylum Chamber) Rules 2014. Rule 9 is in different form and the relevant rule is rule 22 which states:

Circumstances in which the Tribunal may not accept a notice of appeal

22. - (1) Where a person has provided a notice of appeal to the Tribunal and any of the circumstances in paragraph (2) apply, the Tribunal may not accept the notice of appeal.

(2) The circumstances referred to in paragraph (1) are that-

(a) there is no appealable decision; or

(b) the Lord Chancellor has refused to issue a certificate of fee satisfaction.

(3) Where the Tribunal does not accept a notice of appeal, it must-

(a) notify the person providing the notice of appeal and the respondent; and

(b) take no further action on that notice of appeal.

13. In this case the appeal was accepted and listed for hearing as a result of which the procedural stage went beyond the time limit provided by rule 9 and 22. The use of the notice of 'no relevant decision' was arguable wrong as the time for the use of such had passed. The Judge heard argument and was required to provide a written decision with reasons. As found in JH (Zimbabwe) a decision as to jurisdiction made after the Tribunal has begun to consider an appeal, including a case where its consideration is limited to the issue of whether there is jurisdiction, in not procedural and is not preliminary in the sense intended by the legislation governing the asylum and immigration tribunals.
14. I find the Upper Tribunal does have jurisdiction to consider the appellants appeal for which permission to appeal has been granted. It has not been made out that the only avenue of challenge is restricted to an application by way of judicial review.
15. I find the First-tier Tribunal Judge erred in law in finding that tribunal were excluded from considering the merits of the appeal for want of jurisdiction.
16. The appeal shall be remitted to the First-tier Tribunal sitting at Sheldon Court, on a date to be fixed by that Tribunal, for hearing as the appellant has yet to have a fair hearing of the merits of his claim.
17. The grounds refer to the suspensive effect of the decision but that is separate from the issue of jurisdiction. It is debatable the assertion the appeal is suspensive is correct in any event.

Decision

18. The First-tier Tribunal Judge materially erred in law. This appeal is remitted to the First-tier Tribunal for a lawful decision to be made.

Anonymity.

19. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008).

Signed??????????????????.
Upper Tribunal Judge Hanson

Dated the 10 August 2016