Sandip Singh v Secretary of State for the Home Department

The statutory right to appeal on a point of law is subject to excluded decisions. Section 11(5)(f) of the Tribunals, Courts and Enforcement Act 2007 validly authorised the Lord Chancellor to exclude classes of decisions described in Article 3(m) of the Appeals (Excluded Decisions) Order 2009. A fee or costs decision made after determination of the merits is a separate but connected ancillary decision, not part of the substantive merits decision. It therefore cannot be appealed. Success on a fee-exempt removal appeal within a composite immigration appeal does not entitle an appellant to a refund or discount of the fee properly payable for an unsuccessful appeal against refusal of leave.

The appellant appealed to the Court of Appeal against the Upper Tribunal’s determination, promulgated on 18 April 2013, that it had no jurisdiction to hear a challenge to the First-tier Tribunal’s refusal to make a fee award. The First-tier Tribunal had upheld the refusal of further leave to remain but allowed the appeal against a concurrent removal decision under section 47 of the Immigration, Asylum and Nationality Act 2006. It nevertheless made no fee award.

The central issues were whether the fee decision was an excluded ancillary decision under Article 3(m) of the Appeals (Excluded Decisions) Order 2009, whether that provision was ultra vires, and whether the First-tier Tribunal’s approach was arguably amenable to judicial review.

Lady Justice Sharp delivered the judgment. Lord Justice Jackson and Lady Justice Arden agreed.

1. The appeal was dismissed. Section 11 of the Tribunals, Courts and Enforcement Act 2007 confers a right of appeal on a point of law subject to excluded decisions. Section 11(5)(f) permits the Lord Chancellor to specify descriptions or classes of excluded decisions. Article 3(m) of the Appeals (Excluded Decisions) Order 2009 was sufficiently certain and fell within that statutory power.
2. A decision on fees or costs made after determination of the merits is ordinarily separate from the substantive decision, although connected with it. It is therefore ancillary. The First-tier Tribunal’s decision not to make a fee award in an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 fell within Article 3(m) and could not be appealed to the Upper Tribunal.
3. The judicial review application was also unarguable. Under section 85(1) of the Nationality, Immigration and Asylum Act 2002, the leave and removal decisions formed one composite appeal, but they remained separate decisions requiring separate determination. Section 86 permitted the determination to reflect their different outcomes. Article 5 of the First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011/2841 exempted the section 47 removal appeal from fees, but did not require a refund or discount of the fee properly payable for the unsuccessful leave appeal.
4. The criticism of the Joint Presidential Guidance was rejected. The observations in R (Cart) v The Upper Tribunal [2011] UKSC 28 and AS (India) v Secretary of State for the Home Department [2009] EWCA Civ 1495 were not relevant to the disposal. The court added that similar challenges to evident procedural, ancillary or preliminary decisions should not ordinarily be pursued by appeal or judicial review.

Permission to apply for judicial review was refused.

• Court of Appeal (Civil Division) — [2014] EWCA Civ 438: dismissed the appeal and refused permission to apply for judicial review.
• Upper Tribunal (Immigration and Asylum Chamber) — [2013] UKUT 179 (IAC): declined jurisdiction to hear the challenge to the First-tier Tribunal’s fee decision.
• First-tier Tribunal (Immigration and Asylum Chamber): upheld the refusal of leave to remain, allowed the appeal against the concurrent section 47 removal decision, and made no fee award.