Victor Vusi Nkomo v The Secretary of State for the Home Department

The transitional appeal provisions introduced by the Immigration Act 2014 applied differently to persons and to decisions. SI 2014/2928 extended the new regime to deportation decisions made from 10 November 2014 against foreign criminals. It did not extend that regime generally to old foreign criminals as persons.

Accordingly, during the relevant period, an old foreign criminal could have no statutory appeal right where a deportation decision attracted only the new regime, while related protection or human-rights decisions attracted neither the new nor the saved old regime. A tribunal has no jurisdiction where no statutory right of appeal exists, regardless of an erroneous notice stating that an appeal lies.

Victor Vusi Nkomo v The Secretary of State for the Home Department concerned a Zimbabwean national recognised as a refugee who had been convicted of serious offences and was subject to automatic-deportation action.

On 30 October 2014 the Secretary of State ceased his refugee status. On 21 November 2014 she made a deportation order, served with a letter dated 24 November which purported to refuse protection and human-rights claims and to confer appeal rights. The appellant appealed to the First-tier Tribunal.

The Upper Tribunal raised jurisdiction of its own motion. The central issue was whether the transitional provisions governing the replacement appeal regime under the Immigration Act 2014 gave the appellant a statutory right of appeal against any of the decisions notified in November 2014.

1. Appeal allowed. The First-tier Tribunal had no jurisdiction because the appellant had no statutory right of appeal against the decisions communicated on 24 November 2014.

2. Section 15 of the Immigration Act 2014 replaced the former appeal provisions in Part 5 of the Nationality, Immigration and Asylum Act 2002. The old and new regimes were mutually exclusive. They specified different appealable decisions and different grounds.

3. Article 10(a) of the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 applied the new regime to persons who became foreign criminals on or after 20 October 2014. The appellant had become a foreign criminal before that date. He was therefore an old foreign criminal and was not brought within the new regime as a person.

4. Article 2 of the Immigration Act 2014 (Transitional and Saving Provisions) Order 2014, SI 2014/2928, nevertheless applied the new regime to a deportation decision made on or after 10 November 2014 against a foreign criminal. The deportation order was such a decision. Applying JG (Jamaica) v SSHD [2015] EWCA Civ 410, it incorporated the decision that section 32(5) of the UK Borders Act 2007 applied. It consequently carried no appeal right under the new regime.

5. The other decisions in the 24 November letter purported to be decisions appealable only under the new regime. That regime did not apply to them, while none was appealable under the saved old regime. The notice also failed to state appeal rights and grounds for the purported revocation decision. The decisive point, however, was the absence of any statutory appeal right.

6. The Tribunal observed that the decisions should at least be remade, since remade decisions would carry the appeal right apparently intended. It made no order on that matter.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appellant's appeal and held that the First-tier Tribunal's determination had been made without jurisdiction: [2016] UKUT 285 (IAC).
• First-tier Tribunal: Its determination was appealed with permission. Its decision was held to have been made without jurisdiction.