Bibi, R (on the application of) v Immigration Appeal Tribunal

An adjudicator must determine every matter raised as a ground of appeal, including a distinct discrimination ground. However, the grant of leave to enter brings the single immigration appeal to an end under section 104(4) of the Nationality, Immigration and Asylum Act 2002, even where the discrimination issue remains unresolved.

Section 57A of the Race Relations Act 1976 temporarily prevents a County Court discrimination claim while an immigration appeal is pending or available. Once that period ends, a claim may be brought within the applicable limitation period. The County Court claim cannot retrospectively alter the immigration decision.

The claimant, resident in Bangladesh, applied for visitor visas for herself and two children to visit her settled parents in the United Kingdom. The entry clearance officer refused the applications, doubting the genuineness of the proposed limited visit.

On appeal, the adjudicator accepted the immigration merits but failed to determine the claimant’s distinct complaint that the refusal involved unlawful discrimination under the Race Relations Act 1976. Permission to appeal was refused on that issue, and visas were subsequently granted. The Immigration Appeal Tribunal then treated the appeal as abandoned under section 104(4) of the Nationality, Immigration and Asylum Act 2002. The central issues were whether the adjudicator had erred, whether the discrimination complaint remained capable of determination elsewhere, and whether the Tribunal had correctly treated the appeal as abandoned.

The application for judicial review was dismissed.

1. The adjudicator erred by failing to determine the discrimination ground. Section 86(2) of the Nationality, Immigration and Asylum Act 2002 required determination of every matter raised as a ground of appeal. The discrimination issue was properly raised, notwithstanding its omission from the claimant’s original self-written grounds.
2. Sections 19B and 27(1A) of the Race Relations Act 1976 applied the prohibition of discrimination by public authorities to entry-clearance functions performed abroad. Section 57A was intended to avoid inconsistent decisions and to encourage discrimination issues arising in immigration proceedings to be resolved there.
3. Section 57A(1) did not permanently oust the County Court’s jurisdiction. Its bar applied while an immigration appeal was pending or could be brought. Once no such appeal remained, a discrimination claim could be brought in the County Court, subject to the applicable limitation period under section 68(2A). A County Court finding could result in damages, but could not retrospectively reverse the immigration decision. Findings already made in immigration proceedings were binding for the purposes specified by section 57A(3) and (4).
4. The appeal was a single appeal against the refusal of entry clearance. The fact that the adjudicator had failed to decide a separate ground did not create a separate surviving appeal. Once visas were granted, section 104(4) unmistakably required the appeal to be treated as abandoned.
5. The court disagreed with the Immigration Appeal Tribunal’s view in E v Entry Clearance Officer for Lagos that a favourable discrimination finding in immigration proceedings was a necessary precondition to a County Court damages claim. The resulting statutory consequence that an adverse immigration finding could bar a later County Court claim was unfortunate but plain. The Tribunal’s further question whether a notice under section 104(4) was a determination for section 103(1) purposes was left undecided.

No order for costs was made, save for detailed assessment of the claimant’s costs.

This was a first-instance application for judicial review of the Immigration Appeal Tribunal’s notice treating the appeal as abandoned under section 104(4) of the Nationality, Immigration and Asylum Act 2002. The judgment does not state a prior court decision in the same proceedings.