Sandip Singh v Secretary of State for the Home Department

A decision whether to make a fee award in an immigration appeal is an ancillary decision. It is therefore an excluded decision under Article 3(m) of the Appeals (Excluded Decisions) Order 2009.

Under section 11 of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal has no jurisdiction to entertain an appeal against such a decision. The fact that fee awards are not expressly listed among excluded decisions does not limit the broad category of ancillary decisions in Article 3(m).

The appellant challenged the refusal to vary his leave to remain and the decision to remove him. The First-tier Tribunal allowed his appeal only against the purported removal decision under section 47 of the Immigration, Asylum and Nationality Act 2006, dismissed the remainder of the appeal, and made no fee award.

Permission was granted to appeal the refusal of a fee award. The central issue before the Upper Tribunal was whether it had jurisdiction to consider a challenge to a First-tier Tribunal decision to make, or not to make, a fee award.

1. The Upper Tribunal declined jurisdiction. A challenge to the First-tier Tribunal’s refusal to make a fee award could not be entertained.

2. Section 11 of the Tribunals, Courts and Enforcement Act 2007 confers a right of appeal only from a First-tier Tribunal decision that is not an excluded decision. Section 11(5)(f) deliberately gives the Lord Chancellor a broad power to specify descriptions of excluded decisions. That power is not confined by the more specific categories in section 11(5)(a) to (c).

3. Article 3(m) of the Appeals (Excluded Decisions) Order 2009 excludes procedural, ancillary and preliminary decisions made in relation to immigration appeals. A fee decision is not properly described as procedural or preliminary. It is, however, plainly ancillary to the tribunal’s substantive decision on the appeal.

4. The statutory discretion concerning costs and expenses under section 29 of the 2007 Act did not alter that conclusion. Nor did the fact that the Order expressly identifies other categories of excluded decision. The broad wording of Article 3(m) was capable of covering categories of decision without listing every particular type.

5. The observations in AS and RA and the overview in Cart did not directly bear on the construction of section 11 or Article 3(m). The appeal was therefore ineffective insofar as it sought to challenge the fee award.

• Upper Tribunal (Immigration and Asylum Chamber): Held that it lacked jurisdiction to consider the challenge to the First-tier Tribunal’s fee decision.

• First-tier Tribunal: Allowed the appeal only in respect of the purported section 47 removal decision under the Immigration, Asylum and Nationality Act 2006, dismissed the balance of the appeal, and made no fee award.