Upper Tribunal Judge Ockelton has drawn attention to the potential issues surrounding the evisceration of the tribunal’s statutory remit by the Immigration Act 2014 in a new reported decision, Katsonga v Secretary Of State For The Home Department (“Slip Rule” : FtT’s general powers : Zimbabwe) [2016] UKUT 2298 (IAC). He suggests that the tribunal is no longer empowered to allow or dismiss appeals, calling into question what exactly the point of the tribunal is any more.

The headnote reads:

1. The ‘Slip Rule’, rule 31 of the First-tier Tribunal Procedure Rules, cannot be used to reverse the effect of a decision.

2. Following the repeal by the 2014 Act of subsections (3) to (6) of s 86 of the 2002 Act, the First-tier Tribunal appears to have no duty or power to ‘allow’ or ‘dismiss’ an appeal.

Dealing with point 1 first, the judge in this case gave reasons for dismissing the appeal on human rights grounds but then stated in conclusion “The appeal is allowed on human rights grounds.” To allow the appeal was clearly not the judge’s intention and the Home Office applied under the slip rule, rule 31, to have the determination amended. The determination was amended and repromulgated, but Upper Tribunal Judge Ockelton holds that this should not have been done as the slip rule does not extend to such an important matter. The appellant had cross appealed and the Upper Tribunal determination ends with the matter being remitted to the First-tier for re-determination by a different judge.

The critical paragraph on the statutory functions of the tribunal is paragraph 7:

Although the matter was not the subject of any submission before us, it is perhaps worth beginning with Judge O’Rourke’s use of the word “refused”. The appeal was subject to the appeals provisions in the 2002 Act before their amendment by the Immigration Act 2014. Section 86(3) provided that the Tribunal must allow the appeal insofar as it thought that the grounds were made out, but s-s (5) reads: 

“Insofar as sub-section (3) does not apply, the Tribunal shall dismiss the appeal.”

“Dismissed” rather than “refused” is therefore the appropriate word. Quite what the position is now we do not know. Sub-sections (3)-(6) of s 86 were repealed by the 2014 Act. There appears to be no replacement provision. Clearly there is now no obligation on the First-tier Tribunal to allow or dismiss an appeal. Bearing in mind that the First-tier Tribunal’s powers are limited to those found in the statute, it must be doubtful whether the First-tier Tribunal is even empowered to allow or dismiss an appeal following the 2014 amendments. Fortunately we do not have to determine that issue.

Mr Ockelton is arguably right as a matter of strict wording. The previous explicit references to an appeal being allowed or dismissed have indeed been shorn from the statute book, as has the tribunal’s power to make directions implementing its decisions (previously at section 87). However, the tribunal is still entrusted with a statutory duty to determine grounds of appeal. Section 86 of the Nationality, Immigration and Asylum Act 2002 now reads simply thus:

86 Determination of appeal

(1) This section applies on an appeal under section 82(1).

(2) The Tribunal must determine—

(a) any matter raised as a ground of appeal, and

(b) any matter which section 85 requires it to consider.

The grounds of appeal are now limited ones which do not include an explicit “not in accordance with the law” ground. See section 84 as amended:

84 Grounds of appeal

(1) An appeal under section 82(1)(a) (refusal of protection claim) must be brought on one or more of the following grounds—

(a) that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention;
(b) that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection;
(c) that removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

(2) An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.

(3) An appeal under section 82(1)(c) (revocation of protection status) must be brought on one or more of the following grounds—

(a) that the decision to revoke the appellant’s protection status breaches the United Kingdom’s obligations under the Refugee Convention;
(b) that the decision to revoke the appellant’s protection status breaches the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection.

The human rights grounds of appeal is perfectly capable of being interpreted as including grounds based on illegality, though, and when a tribunal is required by statute to “determine” a ground of appeal that is still surely a requirement that the tribunal in effect to allow or dismiss the appeal. It may be the case that the exact wording at the conclusion of determinations could be changed, but this is really a matter of form rather than substance. Judges might in future end their determinations by stating, for example:

“I determine that removal in this case would therefore be unlawful under section 6 of the Human Rights Act 1998.”

In such circumstances, the judge might as well add that the appeal is allowed or dismissed. It would certainly be clearer to the layperson and helpful to the ever growing number of litigants in person who already struggle to understand highly legalised tribunal determinations.

If you are interested in the appeal regime and the Immigration Act 2014 generally, you can sign up for the Free Movement online course or take a look at the ebook.