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

The appeal was allowed subject to a strict 28-day unless order. The Secretary of State was directed to grant indefinite leave to remain unless, within that period, she applied for remission to the First-tier Tribunal and stated proper grounds for opposing the grant. The appellant was given liberty to challenge the propriety of those grounds, so that the Court of Appeal could determine that remission was unnecessary if the opposition was worthless.

AR (Nepal) appealed to the Court of Appeal from the Upper Tribunal (Immigration and Asylum Chamber), in appeal IA/03746/2010. The supplied judgment does not set out the underlying facts, the Upper Tribunal’s reasons, or the precise ground of appeal. It records that an issue concerning the grant of indefinite leave to remain remained potentially extant and explains the conditional order made by the Court of Appeal.

Lord Justice Rix gave the judgment of the court. The court allowed the appeal and made a strict and final 28-day unless order.

1. The Secretary of State was directed to grant indefinite leave to remain unless, within 28 days, she applied for the matter to be remitted to the First-tier Tribunal.
2. Any application for remission had to state proper grounds for opposing the grant of indefinite leave to remain. If such an application were made, the matter would be remitted to the First-tier Tribunal to determine the ground of appeal that remained extant.
3. The appellant was given liberty to apply to the Court of Appeal to contend that the Secretary of State’s opposition was worthless. If that contention succeeded, the Court could determine the matter without remission.
4. If no application for remission were made within 28 days, the matter would be finally resolved in the Court of Appeal and the Secretary of State would be required to grant indefinite leave to remain.

Order: appeal allowed.

• Court of Appeal (Civil Division): On appeal from the Upper Tribunal (Immigration and Asylum Chamber), appeal IA/03746/2010. The appeal was allowed by order dated 18 October 2011: [2011] EWCA Civ 1439.
• Upper Tribunal (Immigration and Asylum Chamber): Decision under appeal; citation and substantive outcome were not stated in the judgment.