Sarkar v Secretary of State for the Home Department

An appellant may abandon a ground of appeal. A tribunal may treat an unargued claim as abandoned, and failure to determine an unsupported ground will not normally be a material error of law. When the Upper Tribunal remakes a First-tier Tribunal decision under section 12 of the Tribunals, Courts and Enforcement Act 2007, it need not conduct a complete rehearing. It substitutes its own decision and determines the necessary scope of the hearing. Permission to appeal must be read with the reasons for the order, so apparently unqualified permission may be limited to specified grounds. The Upper Tribunal need not determine a ground which was abandoned or for which permission was refused. The appeal was dismissed.

The appellants challenged refusal of further leave to remain and removal decisions. Their Article 8 claim was mentioned in the grounds before the First-tier Tribunal, but no evidence or argument was advanced in support. A section 55 welfare argument was likewise not pursued.

The First-tier Tribunal dismissed the appeals. The Upper Tribunal granted permission only on the lawfulness of the removal decisions, allowing the appeals to that limited extent and refusing permission on the remaining grounds. The appellants argued that, having remade the decision, the Upper Tribunal was obliged to determine the Article 8 claim. The central issue was the scope of the Upper Tribunal’s duty when remaking a decision under the Tribunals, Courts and Enforcement Act 2007.

The appeal was dismissed unanimously. Moore-Bick LJ gave the leading judgment, with Tomlinson LJ and Sir Robin Jacob agreeing.

1. Abandoned grounds. An appellant may abandon a ground of appeal. The First-tier Tribunal was entitled to treat the Article 8 claim as abandoned because no evidence or argument had been advanced. The section 55 argument was likewise not pursued. Even if the Article 8 ground had not been abandoned, the absence of evidence meant that any failure formally to determine it was immaterial.
2. Remaking under section 12. The Upper Tribunal is not required to conduct a complete rehearing whenever it remakes a First-tier Tribunal decision. It may decide the legal issue on the findings already made. Remaking involves substituting its own decision, and the Upper Tribunal determines the necessary nature and scope of the hearing. Section 12(4)(a) gives it the full range of powers available to the First-tier Tribunal; it does not require the appeal to start again.
3. Scope of permission. An apparently unqualified grant of permission must be read with the reasons for the order. The reasons may limit permission to a particular ground. Sans Souci Ltd v VRL Services Ltd [2012] UKPC 6 supported that approach, and the principle had been applied in JSC BTA Bank v Ablyazov [2013] EWCA Civ 928. The Upper Tribunal therefore had not acquired jurisdiction to reopen the Article 8 ground.
4. Section 86. Section 86(2)(a) of the Nationality, Immigration and Asylum Act 2002 requires matters raised as grounds of appeal to be determined by the final conclusion of the proceedings. It does not require determination of an abandoned ground or of a ground for which permission to appeal was refused.
5. The Court of Appeal could interfere only for a material error of law. No such error was shown.

• Court of Appeal (Civil Division) — In [2014] EWCA Civ 195, the court dismissed the appeal.
• Upper Tribunal (Immigration and Asylum Chamber) — On 17 December 2012, Upper Tribunal Judge Spencer allowed the appeals only to the extent that the removal decisions were not in accordance with the law, while refusing permission on the Article 8 and other grounds.
• First-tier Tribunal — The appeals against refusal of further leave to remain and the removal decisions were dismissed. The Article 8 and section 55 arguments were not addressed because they had not been pursued.