Ved and another (appealable decisions; permission applications; Basnet) [2014] UKUT 150 (IAC) is a new case from the Upper Tribunal on the vexed issue of immigration applications the Home Office considers to be invalid. The tribunal takes the view that a Home Office decision that an application is invalid cannot itself be appealed to the tribunal and that sorting it out through the appeal system to show that the Home Office was mistaken requires a later application and formal immigration decision which can then be appealed. Applicants unwilling to take that chance and who feel they need to prove validity directly will need to pursue that in an application for judicial review.

The key problem that the tribunal simply ducks (“not my problem, mate, statutory body, innit?”) is that this requires an incredibly astute litigant. Where an earlier application the Home Office rejected as invalid is followed by a new valid application, it will usually be out of time. The notice served by the Home Office will state there is no right of appeal, but the Upper Tribunal wants the refused applicant to appeal anyway, following the approach of the litigants in Basnet.

It is disappointing that the tribunal throws obstacles in the way of achieving justice as opposed to finding innovative ways assisting vulnerable litigants (why not waive formal notice requirements, as in Abiyat itself, below?). Ved is a reminder of how far the immigration tribunal has strayed from its original purpose of providing cheap and accessible justice, thereby undermining its own raison d’etre. Still, the tribunal’s obstinacy helps us immigration lawyers: the more complex and inaccessible justice becomes, the more a good lawyer is needed.

The official headnote reads as follows:

(1) A jurisdictional decision of the First-tier Tribunal, Immigration and Asylum Chamber, contained in a determination made after the appeal has passed the duty judge “screening” stage, is appealable to the Upper Tribunal: Practice Statement 3.4; Abiyat & others (Rights of appeal) [2011] UKUT 314 (IAC).

(2) Where the First-tier Tribunal has refused to entertain an application made to it for permission to appeal to the Upper Tribunal, the Upper Tribunal has discretion under rule 7 of the Tribunal Procedure (Upper Tribunal) Rules 2008 to consider an application for permission made to that Tribunal, notwithstanding that the requirements of rule 21(2)(b) have not been met, in that the First-tier Tribunal has not refused (or not admitted) a permission application. It is, however, unlikely that the Upper Tribunal would apply rule 7 so as to entertain a permission application in the case of a party who has not made any prior application to the First-tier Tribunal. Likewise, the Upper Tribunal can be expected summarily to reject an application for permission to appeal a decision that has been made under rule 9 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and in accordance with Practice Statement 3.1-3.3.

(3) The findings of the Upper Tribunal in Basnet (Validity of application – respondent) [2012] UKUT 113 (IAC) depended upon there being an appealable immigration decision, which in that case can only have been a refusal to vary leave to remain within section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002. The Secretary of State’s rejection of an application for leave as invalid is not an immigration decision within section 82 of the 2002 Act and cannot as such be appealed to the First-tier Tribunal.