Virk & Ors v Secretary of State for the Home Department

A tribunal’s statutory jurisdiction cannot be created by a party’s waiver, agreement or failure to identify the issue. A tribunal may raise and determine its own jurisdiction, after giving the parties a fair opportunity to address it. On an appeal from the First-tier Tribunal, the Upper Tribunal may consider whether the First-tier Tribunal had jurisdiction even though the point was not raised below, since that question arises from the decision under appeal.

A refusal to vary leave following an application made after the applicant’s existing leave has expired is not an immigration decision within section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002. There is therefore no statutory right of appeal.

Ms Virk, an Indian national, and her dependent husband and child applied for further leave to remain as Tier 4 migrants. The application was made ten days after Ms Virk’s leave had expired. The Secretary of State refused it, relying on breaches of immigration conditions and the absence of points under the Immigration Rules.

The First-tier Tribunal dismissed their statutory appeals on the merits. Although directions in the Upper Tribunal had indicated that the appeals might be allowed, the Upper Tribunal dismissed them without an oral hearing on the ground that the First-tier Tribunal had lacked jurisdiction because there was no right of appeal. The Secretary of State accepted that this procedure was unfair. The central issues were whether the Upper Tribunal could take the jurisdiction point when it had not been raised below, and whether the refusals attracted a right of appeal.

1. The appeal to the Court of Appeal succeeded procedurally. The Upper Tribunal had acted unfairly by determining the jurisdiction point without an oral hearing or an opportunity for the appellants to make submissions, particularly after the earlier directions. Its decision was therefore set aside.
2. The Upper Tribunal nevertheless had power to decide the jurisdiction issue. Under section 11(1) of the Tribunals, Courts and Enforcement Act 2007, a question concerning the First-tier Tribunal’s power to hear the appeal arose from that tribunal’s decision. It could consequently be raised in the Upper Tribunal even though it had not been taken before the First-tier Tribunal. The authorities limiting appellate points to matters arising from the decision below concerned attempts to challenge a different immigration decision, not an objection to the tribunal’s jurisdiction over the decision it had made.
3. Statutory jurisdiction cannot be conferred by waiver. The First-tier Tribunal and the Upper Tribunal were creations of statute. Either tribunal could raise the jurisdiction issue of its own motion, subject to procedural fairness. The Secretary of State’s failure to raise it did not give the First-tier Tribunal a jurisdiction that section 82 of the Nationality, Immigration and Asylum Act 2002 withheld.
4. The jurisdictional defect was fatal. The application for leave was made after the existing leave had expired. Its refusal was therefore not an immigration decision under section 82(2)(d), so the appellants had no right of appeal. Exercising its power under section 14(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007, the Court of Appeal re-made the decision and dismissed the statutory appeals.

• Court of Appeal (Civil Division): In Virk & Ors v Secretary of State for the Home Department [2013] EWCA Civ 652, the court set aside the Upper Tribunal’s procedurally unfair decision but re-made it by dismissing the statutory appeals for want of jurisdiction.
• Upper Tribunal (Immigration and Asylum Chamber): On 7 August 2012, Judge Kebede dismissed the appeals without an oral hearing, holding that the First-tier Tribunal had lacked jurisdiction because the applications were made after leave had expired.
• First-tier Tribunal: Judge Beg dismissed the appellants’ appeals against the refusals of further leave to remain.