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Immigration tribunal cannot conditionally allow appeals


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In an Upper Tribunal determination that will come as a surprise to no-one other than the judge whose decision was under appeal, President Lane has held that it is not possible for the tribunal to allow an appeal on a conditional basis.

The case is HH (‘conditional’ appeal decisions) Somalia [2017] UKUT 490 (IAC). The official headnote:

(1)    The scheme of sections 82 to 85 of the Nationality, Immigration and Asylum Act 2002 does not permit an appeal to be conditionally allowed or dismissed.

(2)    Even in entry clearance cases, section 85(4) allows post decision evidence provided it does not constitute a new matter.

The Entry Clearance Officer had refused entry to a child under paragraph 297 of the Immigration Rules. The judge accepted DNA evidence of the parent-child relationship, that the sponsor had sole responsibility for the child and that there was adequate maintenance in place.

The judge also decided to raise issues that had not been explicitly raised in the ECO decision, namely whether the sponsor was a refugee (which he wasn’t but which was irrelevant) and whether there was adequate accommodation available. Because these issues were being raised for the first time at the hearing, the sponsor did not have evidence available there and then. The judge decided to allow the appeal subject to the provision of evidence.

The Upper Tribunal suggests that the judge should have adjourned. With respect, this suggestion is unfortunate. The waiting time for appeals is already 18 months in some cases and adjournments add a further six months at some hearing centres. That is not justice, particularly in a case involving a child who is outside the UK during that time.

Perhaps it would have been more sensible for the judge either (a) to rule that the issues had not been raised earlier and could not be raised at such a late stage or (b) just have heard oral evidence.

By the time of the Upper Tribunal hearing, the only issue was accommodation. The sponsor gave oral evidence to the Upper Tribunal, which it accepted, and the appeal was therefore allowed. Simples.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.