England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION and ASYLUM CHAMBER)
Upper Tribunal Judge Spencer
IA/13819/2012, IA/13824/2012 & IA/13827/2012

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 February 2014

Lord Justice Moore-Bick :

1. This is an appeal against a decision of the Upper Tribunal dated 17^th December 2012 allowing, but only to a limited extent, the appellants' appeal against the decision of the First-tier Tribunal, which had dismissed their appeal against the refusal of the Secretary of State to grant the first appellant further leave to remain in this country as a Tier 4 (General) migrant and the service on him of a notice of a decision to remove him pursuant to section 47 of the Immigration, Asylum and Nationality Act 2006.
2. The first appellant is a citizen of Bangladesh who entered this country in October 2003 as a student. He was initially granted leave to remain until 31^st October 2006, which was subsequently extended on successive occasions to 8^th September 2011. In June 2010 his wife, the second appellant, joined him in this country, also with leave to remain until 8^th September 2011, and they now have a young son, the third appellant, who was born here on 19^th May 2012.
3. On 8^th September 2011 the first appellant applied for further leave to remain as a Tier 4 (General) Student Migrant under the Points-Based System and in support of his application he submitted a bank statement from Agrani Bank. The Secretary of State refused his application under paragraph 322(1A) of the Immigration Rules because she was satisfied that the bank statement was a forgery and that he had therefore submitted a false document in support of his application. Moreover, in order to qualify for the grant of leave to remain as a Tier 4 (General) Migrant the appellant had to be awarded 30 points under Appendix A to the Immigration Rules in respect of the course he intended to undertake. The Secretary of State was not satisfied that the course he proposed to undertake represented academic progress and she therefore refused to award him the necessary points.
4. The first appellant, his wife and son all lodged appeals to the First-tier Tribunal against the Secretary of State's decision. Their grounds of appeal dated 14^th June 2012 were settled by their former solicitors and ran to over 15 pages. The appellants challenged both the Secretary of State's finding that the bank statement was a forgery and her refusal to award the first appellant 30 points in respect of his proposed course of study. In addition, in one short paragraph the appellants raised article 8 of the European Convention on Human Rights ("ECHR") in the following terms:

"In the alternative the Appellants rely on Article 8 of the ECHR and in particular family and/or private life."

5. The third appellant also claimed that the Secretary of State had failed properly to take into account his best interests pursuant to section 55 of the Borders, Citizenship and Immigration Act 2009 ("the 2009 Act"), though since he was only 10 days old when she dealt with his application, it is not clear in what respects she had failed to discharge her duty.
6. At the hearing before the First-tier Tribunal on 9^th August 2012 the appellants were represented by their former solicitors. No evidence was adduced in support of their article 8 claim and no argument was addressed in support of it. Nor was any argument advanced in support of the third appellant's submissions on section 55 of the 2009 Act. The tribunal, not surprisingly, failed to deal with either of those points. If asked, it would probably have said that the arguments had not been pursued and had in effect been abandoned.
7. The appellants appealed to the Upper Tribunal on grounds which included an allegation that the First-tier Tribunal had materially erred in law by failing to consider their claim under Article 8 of the ECHR.
8. When the application for permission to appeal came before the Upper Tribunal Judge Spencer took the provisional view that the appeal as a whole could fairly be disposed of without an oral hearing. In the formal notice of his decision dated 18^th October 2012 he said:

"It is unnecessary to hold an oral hearing of the application for permission to appeal because I consider that it can properly be dealt with on the papers.

Permission to appeal is granted.

REASONS

(including any decision on extending time)

The grounds of appeal, which assert that it is only if the last period of leave was as a student that there is a requirement to show academic progress. In my view this is an unarguable proposition . . . It is also the case, as was pointed out by the First-Tier Tribunal judge who refused permission to appeal in the First-Tier Tribunal, that no evidence was adduced in support of the appellants' human rights grounds of appeal under article 8 of the ECHR. The appeal proceeded on the basis of oral submissions. Therefore I refuse leave on the grounds advanced. I do, however, take a Robinson obvious point in favour of the appellants, which is that the decision to remove them was not lawful, having regard to the decision of the Tribunal in Ahmadi (s.47 decision: validity; Sapkota) Afghanistan [2012] UKUT 147 (IAC). If the decision is set aside on this basis then if a further decision to remove is made the appellants will be able to argue their human rights grounds of appeal, which would appear were neglected by their representative at the hearing.

NOTE: For the reasons set out above I have taken the provisional view that these appeals should now be allowed on the limited basis which I have indicated and the decision of the First-tier Tribunal re-made without any further hearing by allowing the appeals to the extent that the decisions to remove were not in accordance with the law. Any submissions to the contrary must be made to the Upper Tribunal (Immigration and Asylum Chamber) . . . within 21 days of the date of this Order." (Original emphasis.)

9. It was quite clear from that order that the judge was proposing to allow the appeal on the limited ground that the decision to remove the appellants was unlawful because the Secretary of State had purported to give notice of her intention to do so in the same letter as that in which she had refused the application for leave to remain, but to refuse permission to appeal on all other grounds, including the article 8 ground. (The third appellant's argument based on section 55 of the 2009 Act did not form any part of the grounds of appeal to the Upper Tribunal. It was not suggested that the First-tier Tribunal had erred in failing to consider it.) The effect of what was being proposed was that the Secretary of State's decision to refuse to grant the appellants further leave to remain would stand, but that her decision to remove them would be quashed. The parties were expressly invited to make submissions in opposition to the course proposed by the judge, but none of them did so. As a result on 17^th December 2012 he promulgated his decision allowing the appeal on the sole ground indicated in his earlier order.
10. The appellants now appeal to this court seeking to have the decision of the Upper Tribunal set aside and the matter remitted to it for further consideration. There is but one ground of appeal, namely, that the tribunal erred in law in failing to deal with the appellants' case under article 8 when re-making the decision of the First-tier Tribunal.
11. Given the history of these proceedings the appellants' argument might be considered bold. They had failed to adduce any evidence or argument in support of their article 8 case before the First-tier Tribunal and when invited to respond to the Upper Tribunal's proposals for the disposal of the appeal took no steps to ensure that their case was considered by that tribunal either. It is difficult to see how in those circumstances the Upper Tribunal can be said to have made a material error of law in failing to deal with it. Nonetheless, Mr. Malik did make that submission, which he sought to make good by a number of propositions.
12. The starting point for his argument was the fact that the article 8 claim had been raised before the First-tier Tribunal, as indeed it had. The tribunal was therefore, he submitted, under a duty to dispose of it positively one way or another; it was not entitled simply to ignore it. By section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act"), if the Upper Tribunal finds that the making of a decision by the First-tier Tribunal involved an error of law, it may set aside that decision and, if it does, must either remit the case to the First-tier Tribunal or re-make the decision itself. Re-making the decision, submitted Mr. Malik, involves carrying out the task that had been before the First-tier Tribunal. Accordingly, once the Upper Tribunal had decided to re-make the decision, it was bound to consider the whole matter afresh and was therefore bound to consider and determine the appellants' article 8 claim. Failure to do so was an error of law, on the basis of which this court should remit the matter to the Upper Tribunal for consideration of the article 8 claim.
13. In my view there are a number of flaws in this argument. Mr. Malik felt obliged to accept, correctly in my view, that an appellant before the First-tier Tribunal is entitled to abandon any grounds of appeal that he does not wish to pursue. If he does abandon a ground of appeal, the tribunal cannot be criticised for failing to deal with it. In this case the third appellant's argument that the Secretary of State had failed to consider his welfare as required by section 55 of the 2009 Act was not pursued and it was not subsequently argued that the tribunal should have dealt with it. Presumably it was accepted that it had been abandoned. The article 8 claim was handled in the same way. No evidence or argument was placed before the First-tier Tribunal in support of it and in my view the tribunal was entitled to treat it as having been abandoned, although it did not formally do so. Even if that were not the case, however, there was no evidential basis on which the First-tier Tribunal could have found that that ground of appeal had been made out. It follows that if there were an error of law in failing formally to dispose of it, it was not material and the Upper Tribunal was right to refuse permission to appeal in respect of it.
14. However, the Upper Tribunal did give permission to appeal, albeit on an unrelated ground, so the next question concerns the scope of the Upper Tribunal's duty when re-making a decision under section 12(2)(b)(ii) of the 2007 Act. Mr. Malik placed some reliance on the language of section 12(4)(a) which gives the court the power to "make any decision which the First-Tier Tribunal could make if it were re-making the decision." He submitted that those words show that the Upper Tribunal is carrying out the function of the First-tier Tribunal and must, in effect, start again. In my view that submission goes too far. Of course, the Upper Tribunal may hear the appeal afresh, if it considers that appropriate, and for that purpose may hear such evidence and argument as it considers necessary, but it is not bound to do so and can (and often does) decide the disputed question of law on the basis of the findings of fact made by the First-tier Tribunal.
15. If it finds that the First-tier Tribunal has made a material error of law the Upper Tribunal may (but need not) set aside its decision. If it decides to do so, it has only two options: to remit the case with directions for its reconsideration or to re-make the decision itself. Remission, however, does not necessarily require the First-tier Tribunal to start all over again; the Upper Tribunal has power to give directions which limit the scope of the reconsideration. It would be surprising, therefore, if, when re-making the decision itself, the Upper Tribunal were required in every case to carry out a complete re-hearing of the original appeal. In my view that is not what Parliament intended. In this context re-making the decision, by contrast with remitting the case to the First-tier Tribunal, involves no more than substituting the tribunal's own decision for that of the tribunal below. It is for the Upper Tribunal to decide the nature and scope of the hearing that is required for that purpose. The purpose of section 12(4)(a) is simply to ensure that, when re-making the decision, the Upper Tribunal has at its disposal the full range of powers available to the First-Tier Tribunal. Nor do I think that the appellants obtain any assistance from the decision in Kizhakudan v Secretary of State for the Home Department [2012] EWCA Civ 566, to which Mr. Malik drew our attention. That case decided no more than that one error of law on the part of the First-tier Tribunal is sufficient to give the Upper Tribunal jurisdiction to re-make the decision and deal with all live issues. The court in that case held that the Upper Tribunal had a discretion to consider an article 8 claim, even though it might not have been properly raised before the First-tier Tribunal. It did not decide, however, that the Upper Tribunal, having refused permission to appeal on a particular ground, is obliged to consider that ground if it decides to re-make the decision.
16. Mr. Malik sought to rely on the Upper Tribunal's grant of permission to appeal in general terms as entitling the appellants to argue all their grounds of appeal, including the article 8 claim. He accepted that the Upper Tribunal has power to limit the grounds on which it grants permission appeal (as the Tribunal Procedure (Upper Tribunal) Rules 2008 clearly imply), but he submitted that in this case the operative sentence granting permission to appeal was entirely unqualified and could not properly be limited by what Judge Spencer said in the reasons he gave for his decision. In my view, however, that is not how an order of this kind is to be read. In Sans Souci Ltd v VRL Services Ltd [2012] UKPC 6, to which Mr. Roe drew our attention, the Privy Council held that an order of the Jamaican Court of Appeal remitting an award to arbitrators "to determine the issue of damages only" was to be read together with the court's reasons for its decision, which were "an overt and authoritative statement of the circumstances which it regarded as relevant." (per Lord Sumption, paragraph 13). As a result, the apparently unqualified remission for the determination of damages in that case was to be understood as limited to the specific issues that had formed the basis of the appeal. It did not give the tribunal jurisdiction to reconsider the issue of damages generally and did not entitle the defendant to raise issues that it had not previously raised. The decision was applied in this jurisdiction in JSC BTA Bank v Ablyazov [2013] EWCA Civ 928.
17. In the present case the apparently unqualified grant of permission to appeal must be read in the context of the reasons which Judge Spencer gave for his decision, which make it quite clear that he intended to limit it to the ground that he had identified based on section 47 of the Immigration, Asylum and Nationality Act 2006. I accept that the Upper Tribunal could have granted permission to appeal in respect of the question whether the First-tier Tribunal had ought to have considered the article 8 claim (that being the only relevant point of law arising from the decision of the First-tier Tribunal) and if it had done so would have had jurisdiction to decide that question. In fact, however, it is clear from the order that Judge Spencer was refusing to grant permission to appeal on the article 8 ground. I also accept that in an appropriate case the tribunal has jurisdiction to consider new points that have not been included in an appellant's original grounds of appeal – see DL-H v Devon Partnership NHS Trust [2010] UKUT 102 (AAC) at paragraph 3 – but that is not the same as saying that the tribunal can re-open a decision refusing permission to appeal on a particular ground. I am inclined to think that Mr. Roe was right in submitting that, having refused an application for permission to appeal in relation to the article 8 claim, it was no longer open to the Upper Tribunal to entertain it, but it is unnecessary to reach a final view on that question for the purposes of the present appeal, since, for the reasons I have already given, I am satisfied that the grant of permission was limited to the sole ground on which the appeal was allowed. In any event, if, as I think, the tribunal was entitled to refuse permission to appeal on the article 8 ground, I can see no basis for suggesting that it committed an error of law in failing to deal with it.
18. Mr. Malik pointed out that the Secretary of State's refusal to extend the first appellant's leave to remain was an immigration decision within the meaning of Part 5 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") and submitted that by virtue of section 86(2)(a) the Upper Tribunal was under an absolute obligation to determine any matter raised as a ground of appeal. Therefore, he said, since the appellants had raised their article 8 claim in their grounds of appeal to the First-tier Tribunal, the Upper Tribunal, when re-making the decision, was bound to deal with it.
19. In my view the short answer to this submission is that the appellants had abandoned the article 8 claim before the First-tier Tribunal. Even if that is wrong, however, for the reasons I have already given I am unable to accept that the Upper Tribunal is obliged, when re-making a decision, to consider on its merits a ground of appeal in respect of which it has refused permission to appeal. The fact is that the Upper Tribunal does not simply stand in the shoes of the First-tier Tribunal to re-hear the whole appeal. It is sufficient for the purposes of section 86(2)(a) of the 2002 Act that all matters raised as grounds of appeal have been determined, one way or another, by the time the process has reached its final conclusion. It was not suggested, nor in my view could it be, that the Act requires the tribunal to determine grounds of appeal which the appellant has chosen not to pursue.
20. Finally, I think it is important to bear in mind that this court will allow an appeal against a decision of the Upper Tribunal only if it is satisfied that it involved a material error of law. The most that can be said of the decision in the present case is that the tribunal failed to consider the merits of the appellants' article 8 claim. However, there was no evidence before the tribunal capable of supporting the findings of fact necessary to enable their argument to succeed. I find it difficult to see, therefore, how it can be said that any such error was material since, if the tribunal had considered that ground of appeal, it would have been bound to reject it.
21. For all these reasons I would dismiss the appeal.

Lord Justice Tomlinson :

22. I agree.

Sir Robin Jacob :

23. I also agree.