First-tier Tribunal wrong to allow appeal based on a grant of humanitarian protection that did not exist

The Court of Appeal has dismissed an appeal against a decision by the Upper Tribunal that the First-tier Tribunal did not have jurisdiction to consider an appeal based on a grant of humanitarian protection that had not been made by the Home Secretary, on the grounds of a nationality that the appellant denies having. The case is SA v Secretary of State for the Home Department [2025] EWCA Civ 357.

The court also dismissed an argument that the Upper Tribunal’s decision had been procedurally unfair for failing to bring the point, which had not been argued, to the parties’ attention before dismissing the appeal on that basis. The court said that the Upper Tribunal should have invited submissions from the parties, but the failure to do so was overcome by the appellant’s ability to argue the point in the Court of Appeal.

Background

The appellant is a protected party who lacks the capacity to litigate and so was represented by a solicitor appointed by the Court of Protection. SA entered the UK on a visitor visa in November 2000. In February 2002 she claimed asylum and after successfully appealing the initial refusal she was granted refugee status on 9 February 2009.

On 14 August 2014 she was granted indefinite leave to remain. On 24 September 2021 her refugee status was revoked on the basis that she was a Yemeni citizen and not a citizen of Saudi Arabia as claimed, and that if her correct nationality had been known, the Home Office would not have granted her refugee status.

SA’s appeal, made under section 84(3)(a) of the Nationality, Immigration and Asylum Act 2002, was dismissed on 1 September 2023 in relation to the revocation of refugee status. SA had also appealed under section 84(3)(b), which is where revocation would breach the UK’s obligations towards a person entitled to a grant of humanitarian protection. The tribunal found that removing the appellant to Yemen would breach article 3 of the European Convention on Human Rights.

At no point during the First-tier Tribunal hearing had it been asserted by SA’s representatives that she was Yemeni, and the Home Secretary appealed to the Upper Tribunal. The Home Secretary argued that the tribunal did not have jurisdiction to consider the appeal under section 84(3)(b) and had erred in allowing the appeal on that basis. The Home Secretary said that humanitarian protection had never been granted and this decision did not engage removal given the appellant still held her indefinite leave to remain.

The Upper Tribunal rejected the argument, and they said that the drafting of section 84(3) meant that “the intention must have been that a person who held either type of protection status could advance one or both of the grounds in section 84(3).”

However, the Upper Tribunal then went on say that the First-tier Tribunal fell into error because it should have framed its consideration of the humanitarian protection point based on SA being from Saudi Arabia, because this was what her original application was based on. The Upper Tribunal held that the First-tier Tribunal should have dismissed the appeal as it did not have jurisdiction to make the decision that it did.

The Court of Appeal

SA then appealed to the Court of Appeal on the grounds that the Home Secretary had not appealed on that ground, it was not within scope of the grant of permission and had not been argued at the hearing. It was argued on behalf of SA that the point was not “Robinson obvious” as in R v Secretary of State for the Home Department, ex parte Robinson [1998] QB 929 and that even if it were, the point cannot be taken by the tribunal without notice being given to the parties.

The Court of Appeal held:

As the UT found at [32], the FtT was required to frame its enquiry by reference to the application which SA had originally made. It could not decide an appeal under section 84(3)(b) by reference to a claim that had never been made by SA and facts on which she did not rely (and positively disputed). Mr Gajjar’s submission to the contrary was unsupported by any analysis of the legislative scheme or the Immigration Rules, whereas Ms Elliot demonstrated that there is an indissoluble link between the facts on which the claim for protection is made and the grant of protection status in response to that claim. Once the FtT had concluded that SA was not from Saudi Arabia and was not at risk there, that sufficed to dispose of the appeal under both limbs of section 84(3). There was no factual basis for the revoked status to continue to exist. The only proper outcome was dismissal of the appeal. The UT was therefore right for the reasons that it gave.

On the procedural fairness point, the Court of Appeal held that once the Upper Tribunal had formed their view that the First-tier Tribunal’s decision was wrong for reasons that had not been argued, they should have informed the parties and invited them to make submissions before reaching the decision. However, the court considered that in this case the omission was remedied by the fact that SA’s counsel was able to argue the point in the Court of Appeal.

The appeal was dismissed.

Conclusion

It appears that the appellant continues to hold her indefinite leave to remain and one would hope that the Home Office would leave it there given the vulnerability of the appellant. Given the various practical difficulties and her length of time in the UK, removal is very unlikely to be on the cards here, and so all revoking her indefinite leave would achieve is to place a person who lacks mental capacity into a situation where she needs to regularly renew her leave, which doesn’t seem to be in anyone’s interests.

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