Jane Milambo Katsonga v The Secretary of State for the Home Department

The Tribunal’s slip-rule power is confined to correcting clerical mistakes and accidental slips or omissions so as to make the original decision-maker’s meaning clear. It cannot be used to reverse the effect or substance of a promulgated decision at the request of the losing party. A decision may instead be challenged through the setting-aside procedure or appeal process.

Following repeal of section 86(3)–(6) of the Immigration Act 2014, the Tribunal observed, without deciding the point, that the First-tier Tribunal may have neither a duty nor a power to allow or dismiss an immigration appeal.

The appellant claimed asylum and relied also on article 8 after remaining in the United Kingdom following the expiry of a visit visa. The Secretary of State refused her claims and made a consequential removal decision.

The First-tier Tribunal rejected the asylum and humanitarian-protection claims. Its reasons also rejected the article 8 claim, but the notice of decision stated that the appeal was allowed on human-rights grounds. At the Secretary of State’s request, the judge issued an otherwise identical second determination stating that the appeal was refused on human-rights grounds.

Both parties sought to challenge the first determination. The appellant also challenged the purported correction. The central issue was whether the slip rule could validly produce the second determination.

1. The appellant’s appeal against the second determination was allowed. Rule 31 permits correction of a clerical mistake or accidental slip or omission. It is directed to correcting a misprint or making the judge’s original meaning clear. It does not permit alteration of the substance or reversal of a decision already made.

2. The Tribunal treated the analogous civil-procedure authority, Bristol-Myers Squibb v Baker Norton Pharmaceuticals Inc [2001] EWCA Civ 414, as supporting that restricted construction. The absence of a requirement to consult parties was consistent with a power limited to expressing what the judge originally meant, rather than changing the decision.

3. Once the first determination had been made and sent out, the First-tier Tribunal judge was functus except through the setting-aside procedure or appellate process. The purported use of the slip rule to replace an allowance of the human-rights appeal with a refusal was therefore ineffective. The First-tier Tribunal had no jurisdiction to make the second determination.

4. The first determination remained the only valid determination. Sitting as judges of the First-tier Tribunal, the Upper Tribunal granted both parties permission to appeal against it. It set that determination aside because it contained the error identified by the Secretary of State and gave inadequate reasons on the asylum appeal. The appeal was remitted for a fresh hearing before a different judge, with no findings of fact preserved.

5. The Tribunal further observed that the former statutory language required an appeal to be dismissed, rather than refused, where it was not allowed. It did not decide the consequences of the repeal of section 86(3)–(6) of the 2002 Act.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal against the purported second determination; granted both parties permission to appeal against the first determination; set it aside and remitted the appeal for fresh determination.

• First-tier Tribunal: Issued a determination dated 13 May 2015 which rejected the asylum and humanitarian-protection claims but whose notice of decision allowed the human-rights appeal. A purported corrected determination dated 17 June 2015 instead refused the human-rights appeal.