Bhupendra Makanji Ved & Anor v The Secretary of State for the Home Department

A jurisdictional decision made by the First-tier Tribunal in a determination after the rule 9 screening stage is appealable to the Upper Tribunal. A decision made at the screening stage under rule 9 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 remains an excluded procedural or preliminary decision.

Where the First-tier Tribunal wrongly refuses to entertain a permission application, the Upper Tribunal may waive the usual rule 21 requirement under rule 7. That discretion does not excuse a party from first applying to the First-tier Tribunal.

A rejection of an immigration application as invalid is not itself an immigration decision under section 82 of the Nationality, Immigration and Asylum Act 2002. Basnet does not create an appeal against such a rejection; it depended on a later refusal of leave which, because leave had been extended, was in substance a refusal to vary leave.

The appellants, Tanzanian husband and wife, applied for indefinite leave to remain as dependent relatives. The Secretary of State returned two applications as invalid because the required fee had not been paid. The appellants purported to appeal those letters to the First-tier Tribunal and also commenced judicial review proceedings.

After the appeals had passed the screening stage and been heard, Immigration Judge Hawden-Beal determined that there were no valid appeals. The First-tier Tribunal administration then wrongly treated that determination as an unappealable rule 9 decision and refused to entertain an application for permission to appeal.

The appellants applied directly to the Upper Tribunal. The issues were whether the Upper Tribunal could entertain that application and whether a rejection of an application as invalid was appealable, particularly in light of Basnet (Validity of application – respondent) [2012] UKUT 00113 (IAC).

1. Permission to appeal was refused. The Upper Tribunal nevertheless used rule 7(2)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to waive the ordinary requirement in rule 21(2). The appellants had applied to the First-tier Tribunal, but that Tribunal had wrongly declined to entertain their application.

2. A decision on jurisdiction made in a First-tier Tribunal determination after the rule 9 screening stage is not an excluded procedural or preliminary decision. It is appealable to the Upper Tribunal. Rule 9 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 applies only at the preliminary screening stage. The First-tier Tribunal therefore erred by sending its determination under cover of a rule 9 notice and by refusing to entertain the subsequent permission application.

3. Rule 21(2)(b) was read narrowly. The phrase “has not been admitted” refers to a formal non-admission for which the First-tier Tribunal rules provide, not every instance in which an application is not entertained. Rule 7 supplies the necessary discretionary mechanism where the First-tier Tribunal’s response is wrongly based on an asserted lack of jurisdiction. The discretion will rarely assist a party who made no prior application to the First-tier Tribunal, and applications challenging a properly made rule 9 screening decision will ordinarily be rejected summarily.

4. Basnet was distinguishable. Its conclusion that there was a right of appeal depended on a valid in-time application extending leave under section 3C of the Immigration Act 1971, followed by a decision refusing leave. That later decision was in substance a refusal to vary leave within section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002.

5. Here, the Secretary of State had made no decision under section 3 of the 1971 Act. Returning an application as invalid is a preliminary response, not a refusal of leave and not an immigration decision under section 82. The appellants therefore had no statutory appeal to the First-tier Tribunal. Judicial review, already commenced, was the available route to challenge the asserted invalidity.

• Upper Tribunal (Immigration and Asylum Chamber): The appellants’ direct permission application was admitted by waiver under rule 7(2)(a), but permission to appeal was refused.
• First-tier Tribunal (Immigration and Asylum Chamber): Immigration Judge Hawden-Beal determined that there were no valid appeals because no immigration decision had been made. The determination was wrongly accompanied by a rule 9 notice, and the First-tier Tribunal wrongly refused to entertain the appellants’ permission application.