Kizhakudan v Secretary of State for Home Department

Once the Upper Tribunal has identified a material error of law and set aside a First-tier Tribunal decision, it must either remake the decision or remit the appeal under Tribunals, Courts and Enforcement Act 2007. It need not find a further error of law before considering a human-rights issue omitted below.

The Tribunal retains a discretion to permit a legitimate Article 8 point to be raised when remaking the decision. The obligation to plead the whole case, including through a one-stop notice and a respondent’s notice, remains important. It does not permit the Tribunal to treat its discretion as unavailable. Where the discretion is invoked, it must be exercised. The Article 8 issue should be considered alongside any relevant common-law fairness issue.

The appellant was an Indian student whose application to extend leave was refused after his sponsoring college lost its Tier 4 licence. The First-tier Tribunal allowed his appeal because it misunderstood the Secretary of State’s policy guidance as requiring a grant of 60 days’ further leave.

On the Secretary of State’s appeal, the Upper Tribunal set aside that decision for error of law. It refused, however, to consider the appellant’s Article 8 private-life case because it had not been advanced before the First-tier Tribunal. The appellant brought a second appeal, contending that the Upper Tribunal had to address the Article 8 issue when remaking the decision, or at least had discretion to do so.

Appeal allowed. Rix LJ, with whom Moses LJ and Briggs J agreed, set aside the Upper Tribunal’s decision and remitted the appeal to a differently constituted Upper Tribunal.

1. There was already a conceded material error of law in the First-tier Tribunal’s construction of the policy guidance. Once that error had been identified, the Upper Tribunal was required by section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 either to remake the decision or to remit the appeal. It was wrong to treat an additional error by the First-tier Tribunal concerning Article 8 as a jurisdictional precondition to considering that issue itself.
2. The appellant had asked the Upper Tribunal to consider Article 8 when remaking the decision. The Upper Tribunal had a discretion to allow that new point to be relied on, even though it had not been raised before the First-tier Tribunal and no respondent’s notice had been served. By deciding that it could not consider the point at all, it failed to exercise that discretion.
3. The court emphasised that immigration appellants must plead their full case. The one-stop procedure and section 120 of the Nationality, Immigration and Asylum Act 2002 are important, as is a respondent’s notice where the Secretary of State appeals. Section 85(2) requires a tribunal to consider matters properly raised as grounds of appeal. Those procedural requirements did not, however, remove the Upper Tribunal’s discretion in the circumstances of this case.
4. The Article 8 issue was legitimate, as CDS (Brazil) [2010] UKUT 00305 illustrated. On remittal, the Upper Tribunal should consider both Article 8 and the related issue of common-law fairness. Fairness was potentially material because the appellant learned of the loss of his sponsor’s registration only when it was too late to obtain alternative sponsorship. The Court of Appeal did not decide the merits or strength of either issue.

• Court of Appeal (Civil Division). Allowed the appellant’s second appeal, set aside the Upper Tribunal’s decision, and remitted the appeal to another Upper Tribunal judge.
• Upper Tribunal. Allowed the Secretary of State’s appeal on the policy-guidance issue, set aside the First-tier Tribunal’s decision, and substituted a dismissal after refusing to consider Article 8.
• First-tier Tribunal. Allowed the appellant’s appeal on the mistaken basis that the policy guidance required 60 days’ further leave to obtain new student sponsorship.