ONM v Secretary of State for the Home Department

Upon remitting an immigration appeal, the Upper Tribunal’s power to give directions under section 12 of the Tribunals, Courts and Enforcement Act 2007 is distinct from its power to give procedural directions. Directions may define the legal guidance and permissible scope of the remitted appeal, but must respect the First-tier Tribunal’s jurisdiction.

An appeal against a decision that section 32(5) of the UK Borders Act 2007 applies may in principle rely on all statutory grounds in section 84 of the Nationality, Immigration and Asylum Act 2002. A substantive legitimate-expectation challenge was at least arguably available under the ground that the decision was otherwise not in accordance with the law. PF (Nigeria) v SSHD [2015] EWCA Civ 251 did not conclusively preclude that course.

The appellant, a Jamaican national, appealed against the Secretary of State’s 2011 decision that section 32(5) of the UK Borders Act 2007 applied to him, together with the refusal of his asylum and human-rights claims. The First-tier Tribunal dismissed the appeal after receiving undisclosed police evidence, including evidence heard in the parties’ absence.

The Upper Tribunal had set aside that decision for procedural unfairness and decided to remit the appeal for a fresh hearing. This further decision concerned the terms of remittal and the appellant’s application to advance additional grounds, including a claimed duty of care, substantive legitimate expectation, Convention-rights breaches and breach of section 55 of the Borders, Citizenship and Immigration Act 2009.

The central issues were the scope of the remitted appeal and the First-tier Tribunal’s jurisdiction over those proposed grounds.

1. The appeal was remitted to a differently constituted First-tier Tribunal for a fresh hearing. None of the previous tribunal’s findings was preserved.

2. Under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal may remit with directions. That power is distinct from the procedural-direction power in section 12(3)(b). The former includes directions about the applicable law and the scope of the reconsideration; the latter concerns the procedure for conducting it. Both must be exercised consistently with the interests of justice and the overriding objective. The Upper Tribunal relied on Sarkar v SSHD [2014] EWCA Civ 195 as confirming that directions may limit the scope of reconsideration.

3. The appeal was against a decision that section 32(5) of the UK Borders Act 2007 applied. Accordingly, the statutory grounds in section 84 of the Nationality, Immigration and Asylum Act 2002 remained available in principle on remittal.

4. The First-tier Tribunal had no jurisdiction to determine a claim that the Secretary of State owed and breached a private-law duty of care. Such a claim lay outside its statutory remit and could only be pursued, if at all, in a private-law action.

5. The appellant was permitted to advance a substantive legitimate-expectation ground. It was at least arguable that frustrating such an expectation rendered an immigration decision otherwise not in accordance with the law under section 84(1)(e). PF (Nigeria) v SSHD [2015] EWCA Civ 251 did not conclusively establish that such a challenge could only be brought by judicial review. The Upper Tribunal did not finally determine the point.

6. The appellant was also permitted to rely on asserted breaches of Articles 2, 3 and 8 and section 55 of the Borders, Citizenship and Immigration Act 2009. The proposed challenge concerning the Secretary of State’s assessment of his recruitment as an informant was refused.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal’s determination was set aside for material procedural unfairness on 28 January 2015. In this decision, the Upper Tribunal remitted the appeal to a differently constituted First-tier Tribunal and gave directions as to its scope and conduct.
• First-tier Tribunal: By a determination dated 10 February 2012, promulgated on 15 February 2012, it dismissed the appellant’s appeal against the Secretary of State’s decision that section 32(5) of the UK Borders Act 2007 applied and rejected his asylum-related claims.