The nature of applications which attract a right of appeal have been greatly restricted by the Immigration Act 2014. In summary, only refused human rights applications, or applications for protection, are appealable. All other applications can be challenged by way of Judicial Review or administrative review only. What is the position of individuals who argue, however, that they were wrongly denied a right of appeal?

In the case of Saqib Zia Khan v Secretary of State for the Home Department [2017] EWCA Civ 424, the Court of Appeal found that the appropriate forum to challenge these decisions is the First-Tier Tribunal.

Background

The procedural history of the case is complex, but Lord Justice Underhill helpfully summarised the “paradigm case” where this matter could arise as follows:

• C makes an application A1 before the expiry of their leave.
• The Secretary of State refuses application A1 because of a technicality (e.g. non-payment of the fee) but this rejection is based on incorrect facts (e.g. the payment details had been provided and the Secretary of State failed to process the fee).
• There is no right of appeal and C decides to simply submit application A2 instead of judicially reviewing the refusal. A2 is submitted after the expiry of C’s last leave.
• A2 is refused on the merits of the case. The Secretary of State does not give C a right of appeal against the refusal because the application was made out of time, that is after the expiry of C’s leave to remain.
• C challenged the lack of a right of appeal on the grounds that the Secretary of State was not entitled to reject A1. Had it not been for this incorrect refusal, C would have been lawfully present at the time of A2 because he would have had 3C leave, having submitted an application prior to the expiry of their leave. He would therefore be entitled to a right of appeal.

Since the coming in force of the Immigration Act 2014, the above scenario would in fact no longer arise. C would only have a right of appeal if they made a human right or protection application, independently of whether they had leave at the time of the application. However, a situation where C is incorrectly denied a right of appeal can still arise, for example if C believes that his application raised human rights matters, but the Secretary of State disagreed. Which forum should C use to argue that he should have been given a right of appeal?

In this case, the Appellant argued that the issue should be resolved in the Upper Tribunal by bringing a Judicial Review against the decision of the Secretary of State not to give him a right of appeal. The Respondent´s position was that the Appellant should have argued the case at the First-Tier Tribunal.

Jurisdiction of the First-Tier Tribunal

Lord Justice Underhill found that the earlier case of Basnet was decided correctly, namely that the appropriate forum to ask whether an individual has a right of appeal is the First-Tier Tribunal. Like the Court of Appeal, we will call this the “jurisdiction issue”.

In coming to this decision, Lord Justice Underhill made the following points:

• where an issue arises as to the jurisdiction of a statutory tribunal, that issue should be determined in the first instance by the tribunal itself, which can then proceed to consider the substantive issues if it decides that it has jurisdiction (paragraph 19).
• the determination of the jurisdiction issue here “involves resolving disputed questions of primary fact – such as whether a payment was made or whether particular documents were supplied with the application – a tribunal whose procedures are set up for fact-finding will be better placed to make the necessary findings than a court or tribunal proceeding by way of judicial review” (paragraph 20)

{Ed. given the “shirker not worker” approach of the tribunal to its own jurisdiction, this may well come as a bit of an unwelcome surprise to the tribunal}

Deadline to appeal

The Court of Appeal helpfully found that there was no deadline to bring this challenge at the First-Tier Tribunal. This is because a decision notice that wrongly states that there is no right of appeal is invalid. Because there is no valid decision, the time towards the deadline to appeal never starts running (paragraph 24).

Can the Upper-Tribunal depart from this rule?

Interestingly, although finding that the correct forum to bring a challenge against the denial of a statutory right of appeal is the First-Tier Tribunal, Lord Justice Underhill went on to find that, given the particular circumstances of this case, the Upper Tribunal had been wrong not to decide on the jurisdiction issue itself.

It is helpful at this stage to go back to the procedural history of this case. In particular, it is important to note that the Appellant issued judicial review proceedings challenging the denial of a right of appeal. After an initial refusal on papers, permission was granted by the Upper Tribunal at an oral hearing, at which the Respondent was represented. At that hearing, the Judge raised the question of whether the Upper Tribunal should decline to make a decision on the basis that there was an alternative remedy, namely by appealing to the First-Tier Tribunal instead. The hearing was adjourned as this point had not been raised by either party before. At the resumed hearing, the Upper Tribunal dismissed the application for Judicial Review on the basis that there was an alternative remedy, that is an appeal to the First-Tier Tribunal.

Although the Court of Appeal, as stated earlier, agrees that the appropriate tribunal to decide of the issue is the First-Tier Tribunal, they found that the Upper Tribunal was wrong in this case not to make a decision itself on the jurisdiction issue, i.e. whether the appellant should have been given a right of appeal.

In coming to this decision, the Court of Appeal agreed with the claimant that the Upper Tribunal was wrong not to decide on jurisdiction because it had given permission for the judicial review to proceed. Declining to make a decision at a hearing having granted permission meant that a great deal of time and money had been wasted, as the Claimant could have gone to the First-Tier Tribunal months before.

In addition, at paragraph 28 of its determination, Lord Justice Underhill stated that the decision of the Upper Tribunal was wrong because

• Permission to bring a judicial review was granted at a hearing where the Respondent was present but did not raise any point on alternative remedy
• The Respondent never raised this point, it being raised by the Upper Tribunal for the first time at the substantive hearing
• The judicial review route had been followed in several earlier similar cases
• The proceedings had already been going on for almost 2 years
• The jurisdiction issue in this case might throw up issues about the reasoning in Basnetwhich might be of wider application and which it would therefore be useful to have determined at UT level

The Judge concluded that

Cumulatively, the circumstances that I have identified above mean that he [the Upper Tribunal judge] not only could but should have gone on to determine the jurisdiction issue himself. He could have done so while still maintaining that in general the jurisdiction issue should be determined in the first instance by the FTT. (29)

The Judge therefore remitted the case to the Upper Tribunal but also said

I should emphasise that I only favour taking this course because of the very particular history of the present case. It does not in any way undermine my conclusion that ordinarily the jurisdiction issue should be determined by the FTT. (32)

What does it mean?

Although this case started prior to the coming into force of the Immigration Act 2014, which brought changes to which applications attract a right of appeal, its finding may remain relevant.

In particular, we might see more and more cases where an applicant is denied a right of appeal on the grounds that his application did not raise human rights issues, when it actually did.

In these cases, although seemingly counter-intuitive for an applicant who has been told that they could not appeal, this case suggests the correct way forward is precisely to appeal at the First-Tier Tribunal. The First-Tier Tribunal will then need to decide (1) whether the Secretary of State was wrong to deny the applicant a right of appeal; and, if finding that it was (2) whether the Secretary of State was wrong to refuse the application itself.

How this sits with Waqar and that line of cases is a mystery.