Practitioners not au fait with February’s decision in Charles (human rights appeal: scope) Grenada [2018] UKUT 89 (IAC) may want to take a quick glance over it. The Home Office guidance on appeal rights has just been updated to include a page on what it means for human rights appeals. Its take on the effect of Charles reads, in full:

Section 86 of the Nationality, Immigration and Asylum Act 2002 was amended by the Immigration Act 2014. In Charles (human rights appeal: scope) [2018] UKUT 89 (IAC), the Upper Tribunal considered the effect of the amendments to section 86 on the Tribunal’s power to determine an appeal. In a determination written by the President, the Upper Tribunal found that, following the amendments, it was no longer possible for an immigration judge to allow an appeal on the ground that the decision was not in accordance with the law:

The former ability of the Tribunal to conclude that a decision of the Secretary of State was unlawful, with the result that a lawful decision remained to be made by her, depended upon the fact that under the version of section 86 of the 2002 Act as it was, prior to its amendment by the 2014 Act, the Tribunal was required to allow an appeal insofar as it thought that a decision against which the appeal was brought or was treated as being brought was not in accordance with the law (including immigration rules). That requirement has been removed from the legislation.

In this respect, the decision in Charles explicitly supersedes the decision in Greenwood (No.2) [2015] UKUT 629 (IAC).

The question of whether a decision was in accordance with the law will nevertheless be highly relevant in many human rights appeals. Under section 84(2) of the current statutory framework, an appeal against the refusal of a human rights claim must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998. Where it is found that the claimant’s rights under Article 8(1) of the European Convention on Human Rights are engaged, the Tribunal will go on to consider whether any interference occasioned by the decision under challenge would be “in accordance with the law” for the purposes of Article 8(2). That is the point at which the lawfulness of the decision in a wider sense may now be relevant.

For the avoidance of doubt, on this point the decision in Charles also supersedes the decision of the Upper Tribunal in Katsonga (“Slip Rule”; FtT’s general powers) [2016] UKUT 228 (IAC). Guidance on the issue identified in that case has now been provided by the President in Charles.

Colin discusses the Charles case in some detail in this post: Tribunal finally asks: what is a human rights appeal anyway?