Hadi Abiyat v Secretary of State for the Home Department

A decision of the First-tier Tribunal declining jurisdiction after it has considered the purported appeal and issued a determination is neither procedural nor preliminary for the purposes of the exclusion from appeal. It is therefore appealable to the Upper Tribunal.

Under section 83 of the Nationality, Immigration and Asylum Act 2002, a right of appeal against rejection of an asylum claim is triggered by a later grant of leave exceeding one year. The grant need not be linked to the asylum refusal, and an earlier unsuccessful asylum appeal does not remove that right. Indefinite leave to remain is leave for a period exceeding one year.

The four appellants had each claimed asylum unsuccessfully and had exhausted their earlier appeal rights. After making further submissions, each was granted indefinite leave to remain outside the Immigration Rules. The Secretary of State’s letters also referred to an outstanding fresh asylum claim and invited its withdrawal.

The appellants maintained their asylum claims and appealed to the First-tier Tribunal, contending that they were entitled to refugee status. After a hearing, the First-tier Tribunal issued a determination that there were no valid appeals before it. The appellants appealed to the Upper Tribunal with permission.

The central issues were whether the First-tier Tribunal’s jurisdiction ruling was appealable and whether the grants of indefinite leave to remain generated rights of appeal under section 83.

1. The appeals were allowed. The First-tier Tribunal had jurisdiction to entertain the appellants’ section 83 appeals and was wrong to hold otherwise.

2. The Upper Tribunal had jurisdiction over the appeals from the First-tier Tribunal. A rule 9 notice issued immediately on receipt of an invalid notice of appeal is procedural or preliminary. However, where the First-tier Tribunal has considered jurisdiction after a hearing and embodies its conclusion in a determination, its decision is not procedural and is not preliminary in the relevant sense. The binding reasoning in JH (Zimbabwe) v SSHD [2009] EWCA Civ 78 applied. Section 11(6) of the Tribunals, Courts and Enforcement Act 2007 also required continuity with the earlier appeal structure.

3. Section 83 of the Nationality, Immigration and Asylum Act 2002 confers an appeal right where an asylum claim has been rejected and the claimant is later granted leave exceeding one year. The triggering event is the grant of leave, rather than the asylum refusal. The provision requires no causal connection between them and does not exclude a claimant who has already brought an unsuccessful asylum appeal under section 82.

4. The Tribunal adopted the reasoning of Beatson J in R (S and others) v First-tier Tribunal (IAC) and SSHD [2011] EWHC 627 (Admin). Indefinite leave to remain is leave for a period within section 83, as section 3(1)(b) of the Immigration Act 1971 recognises leave for either a limited or indefinite period.

5. Each appellant consequently had a section 83 appeal awaiting determination by the First-tier Tribunal. No compliant notice of appeal rights had been served, so time for appealing had not begun to run; the appellants had nevertheless waived the notice requirements by lodging their appeals.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeals and held that the First-tier Tribunal’s determination declining jurisdiction was appealable. It held that each appellant had an appeal under section 83 of the Nationality, Immigration and Asylum Act 2002.
• First-tier Tribunal (Immigration and Asylum Chamber): After a hearing on 22 March 2010, dismissed the purported appeals on the basis that there were no valid appeals before the Tribunal. That conclusion was overturned.