KR (Nepal) v Secretary of State for the Home Department

Where a tribunal has made a material error of law by failing to make findings on a material issue, remittal is normally appropriate if the case is fact-sensitive and the relevant facts remain unresolved. Substitution is appropriate only where the tribunal’s findings are clear, undisputed and admit of only one legal answer.

Remittal is particularly suitable where circumstances have materially changed. The Court of Appeal may remit or exercise the tribunal’s powers, but cannot itself grant leave to remain. Whether leave should be granted, and its terms and duration, is for the Secretary of State to decide.

Four Nepali appellants appealed against Immigration Judge Robinson’s determination of 16 December 2009, which dismissed their appeals against refusal of the first appellant’s application for student leave and the other appellants’ applications as his dependants. The determination accepted that satisfactory academic progress had been made but failed to address evidence that the first appellant had enrolled on a later MSc course.

The Upper Tribunal granted permission to appeal. The Secretary of State agreed that the matter should be remitted, but the appellants sought to pursue an order allowing the appeals and granting leave to remain. The central issues were whether the Court of Appeal should substitute its own decision, and the proper scope of its powers.

The appeal was allowed to the extent that Immigration Judge Robinson’s determination was set aside and the matter was remitted to the Upper Tribunal for redetermination. The decision was unanimous. Lord Justice Sullivan gave the leading judgment; Lord Neuberger MR and Lord Justice Carnwath agreed.

1. The Immigration Judge had failed to make any finding on the material evidence concerning the first appellant’s MSc course. The omission amounted to a material error because the case was fact-sensitive and the Tribunal was the fact-finding body.
2. The normal course where a tribunal has erred in a fact-sensitive case is remittal. The Court of Appeal should substitute its own decision only where the tribunal has made clear and undisputed findings of fact which admit of only one legal answer. That threshold was not met because the material evidence had not been assessed.
3. Under Nationality, Immigration and Asylum Act 2002, section 103B(4), Tribunals, Courts and Enforcement Act 2007, section 14, and CPR Rule 52.10, the court could remit the matter or exercise the powers of the relevant tribunal. It could not itself grant leave to remain. The decision whether to grant leave, and on what terms and for what period, remained for the Secretary of State.
4. Remittal was reinforced by the materially changed circumstances. The first appellant had completed the MSc course and begun a further course, creating a new factual situation for the Tribunal and the Secretary of State to assess.
5. The court made no order as to costs and dispensed with the need for a litigation friend for the two child appellants. Lord Neuberger expressed concern that the costs guidance relied on from Sengoz v SSHD [2001] EWCA Civ 1135 should not be treated as governing every case. Lord Justice Carnwath agreed with both judgments.

• Court of Appeal (Civil Division) — Appeal allowed; the determination of Immigration Judge Robinson was set aside and the matter was remitted to the Upper Tribunal for redetermination.
• Upper Tribunal — Permission to appeal was granted on 23 February 2010.
• Asylum and Immigration Tribunal — Immigration Judge Robinson dismissed the appeals in a determination promulgated on 16 December 2009. The earlier determination of Immigration Judge Hembrough, promulgated on 2 December 2008, had also dismissed the appeal, after which reconsideration was ordered.