Entry Clearance Officer - Tashkent v Master AA

A review under rules 45 and 46 of the Tribunal Procedure (Upper Tribunal) Rules 2008 can arise only after a party has made an application for permission to appeal. The Rules do not permit a freestanding application for review. They confine the Upper Tribunal’s review power to its own initiative, on the specified grounds.

The tribunal may, under rule 48, judicially treat a mislabelled application as an application for permission to appeal. That discretion should be exercised sparingly and consistently with the structure of the Rules. An administrative acknowledgement cannot determine the legal character of an application. Where a professional party deliberately made only an application for review, and recategorisation would not serve justice, the application should not be treated as one for permission to appeal.

The claimant, a child and citizen of Uzbekistan, had been refused entry clearance by the Entry Clearance Officer. The First-tier Tribunal allowed his appeal on article 8 grounds. A Deputy Upper Tribunal Judge later held that the First-tier Tribunal decision disclosed no error of law.

The Presenting Officers Unit then sent a letter expressly described as an application for review under rule 45 of the Tribunal Procedure (Upper Tribunal) Rules 2008. The issue before the Upper Tribunal was whether that freestanding application had a lawful basis or could instead be treated as an application for permission to appeal.

1. The purported application for review was ineffective and was not treated as an application for permission to appeal. The earlier Upper Tribunal decision upholding the First-tier Tribunal therefore remained unchallenged in law, and the First-tier Tribunal’s decision allowing the claimant’s appeal stood.

2. The ordinary wording of rule 45(1), read with rule 46(1), makes an application for permission to appeal a condition precedent to review. Rule 45(2) confirms that structure: if the tribunal does not review, it must determine the outstanding application for permission. The review procedure is a limited filter for clear errors, designed to avoid an unnecessary onward appeal while preserving the proper appellate process.

3. Although section 10 of the Tribunals, Courts and Enforcement Act 2007 contemplates review on application or on the tribunal’s own initiative, the 2008 Rules exercise the statutory power to confine review under rule 45 to the tribunal’s own initiative and to the specified grounds. They contain no provision for a party to make an application for review.

4. The tribunal’s letter acknowledging receipt of an application for permission to appeal did not alter the position. The legal classification of an application is a judicial matter. Rule 48 nevertheless gave the tribunal power to treat the review application as an application for permission to appeal.

5. That discretion was not exercised. The tribunal left open the general circumstances in which a mislabelled review application may be recategorised, while observing that a clear but erroneous application by a litigant in person may present different considerations. Here the professional party had deliberately used a review application, did not ask for it to be treated as a permission application, and would have used a different internal form had permission been intended. Although the prior Upper Tribunal decision had apparently overlooked section 85A(2) of the Nationality, Immigration and Asylum Act 2002 and binding authority, recategorisation would not serve the interests of justice in the particular circumstances.

• Upper Tribunal (Immigration and Asylum Chamber): The purported rule 45 review application was held to have no lawful basis and was not recategorised as an application for permission to appeal.
• Upper Tribunal (Deputy Upper Tribunal Judge Juss): In a determination notified on 29 September 2014, the Deputy Upper Tribunal Judge held that the First-tier Tribunal decision disclosed no error of law.
• First-tier Tribunal: Judge Halliwell allowed the claimant’s appeal against refusal of entry clearance on article 8 grounds.