Tribunal lacked jurisdiction to consider human rights appeal where no notice filed

Where multiple decisions have been made in a case, each attracting the right of appeal, care must be taken to ensure that the correct procedural steps are taken, otherwise the tribunal may lack jurisdiction. This position has been set out in a decision of the Upper Tribunal in allowing an appeal by the Home Secretary against a decision of the First-tier Tribunal which allowed an appeal by a Portuguese national against his deportation.

The appellant had appealed under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 but the First-tier Tribunal had allowed the appeal on human rights grounds, even though a notice of appeal against that decision had not been formally filed. This is a reported case, Da Silva Pinho (FtT – jurisdiction) Portugal [2025] UKUT 317 (IAC).

Background

There were three separate decisions made, each with a right of appeal. On 15 November 2023 a stage 1 deportation decision was made which generated the right of appeal under the regulations, which was exercised by the appellant. On 16 January 2024, post-dating the appeal which had been lodged against the first decision, further refusals were issued on human rights grounds and under the EU Settlement Scheme.

Following the hearing on 8 November 2024 the First-tier Tribunal judge issued directions noting that there had been a notice of appeal only for the first decision and ordering the parties to set out their position on the jurisdiction of the tribunal to determine the human rights issues. Neither party responded, and neither party had objected at the hearing to the tribunal considering the human rights element of the appeal.

The First-tier Tribunal proceeded to determine the human rights appeal, stating that it was exercising case management powers Rule 6 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. The Home Secretary appealed.

The Upper Tribunal’s decision

The Upper Tribunal described the Home Secretary’s reliance on the jurisdictional issue in her appeal despite having failed to raise this in response to the First-tier’s directions or in the written grounds to the Upper Tribunal as “unbecoming”. The issue was raised by the judge granting permission to appeal. However, the tribunal referred to held in MS (Uganda) [2014] EWCA Civ 50 and said that “jurisdictional issues can be raised at any time because jurisdiction cannot simply be conferred by oversight or agreement”.

It was concluded that:

In our view although it might be considered sensible and in line with the overriding objective, to attempt to permit the further appeal and consolidate the appeals which ultimately centred on human rights issues, the judge was not empowered so to do. The directions issued by the FtT judge related to the two January 2024 decisions neither of which had been appealed.

The Upper Tribunal also found an error of law in the decision on the part of the appeal that was valid. That appeal has been returned to the First-tier Tribunal and the Upper Tribunal indicated, without predetermining the outcome, that the appellant should now submit an out of time appeal for the other two decisions, along with an application to extend time and have all of the appeals consolidated. 

Headnote

The headnote is as follows:

(a)    The filing of a notice of appeal is fundamental to the commencement of proceedings in relation to the relevant decisions and in order to initiate proceedings to trigger or activate the FtT’s powers under the FtT Procedure Rules.

(b)    There is no inherent jurisdiction in the FtT and for it to stray beyond what it is statutorily empowered to do is ultra vires.

(c)    An appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 is an appeal under a different regime from an appeal under s82 of the Nationality, Immigration and Asylum Act 2002.  Vargova [2024] UKUT 336 (IAC) and Abdullah [2024] UKUT 66 (IAC) reference the scope of the different rights of appeal.  The parties must be alive to the requirements to file an effective notice of appeal to each and every relevant decision.