Bangura & Anor v the Upper Tribunal (Immigration & Asylum Chamber)

A tribunal act that rejects or declines a notice of appeal is not necessarily a judicial decision. The court must examine the nature of the act. Where the Secretary of State’s certification is followed by an administrative decision of the First-tier Tribunal, there is no judicial decision capable of appeal to the Upper Tribunal. Authorities showing that some jurisdictional rulings are judicial do not make every jurisdictional refusal appealable. The appropriate route may instead be judicial review of the administrative act.

Following the refusal and certification of asylum and human rights claims, the applicants attempted to appeal to the First-tier Tribunal. The Tribunal treated their notices as invalid and took no further action. The Upper Tribunal refused permission to appeal, considering the First-tier Tribunal’s act administrative rather than judicial. Jay J refused permission to apply for judicial review, holding that the applicants had pursued the wrong procedural route. The applicants sought permission to appeal to the Court of Appeal. The central issue was whether the First-tier Tribunal had made an appealable judicial decision.

The application for permission to appeal was refused unanimously. Lord Justice Gross gave the judgment and Sir Stanley Burton agreed.

1. Nature of the First-tier Tribunal’s act. The first and jurisdictional question was whether there had been a judicial decision capable of appeal. On the facts, the Secretary of State’s certification was followed by an administrative decision of the First-tier Tribunal. The fact that the notice was signed by a clerk supported that conclusion, although the court made no general statement about the powers of delegated officers. There was therefore no judicial decision and nothing capable of appeal to the Upper Tribunal.
2. Jurisdictional authorities. The applicants relied on JH (Zimbabwe) v SSHD [2009] INLR 385, Abiyat [2011] UKUT 314 (IAC) and Ved & Anr [2014] UKUT 150 (IAC). Those decisions established only that some jurisdictional decisions rejecting jurisdiction are judicial. They did not establish that every such decision is judicial or appealable. The present decision was administrative and the authorities did not alter that conclusion.
3. Procedural route. The court noted Jay J’s view that the First-tier Tribunal’s decision could instead have been challenged by judicial review. It expressed no view on the prospects of such a claim and did not determine the underlying substantive immigration issues.
4. Costs. The respondent was awarded costs, subject to detailed assessment.

1. Court of Appeal: Permission to appeal from Jay J’s decision of 10 July 2015 was refused on 25 February 2016. The respondent was awarded costs subject to detailed assessment.
2. Administrative Court: Jay J refused permission to apply for judicial review. He considered that the First-tier Tribunal’s decision was administrative and that the proper route was judicial review of that decision.
3. Upper Tribunal: On 24 April 2015, permission to appeal was refused because the First-tier Tribunal had made an administrative act and there was no appealable judicial decision.
4. First-tier Tribunal: On 2 December 2014, the Tribunal treated the notices of appeal as invalid and took no further action. An application for permission to appeal was subsequently refused.