VOM v The Secretary of State for the Home Department

Under Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal’s determination of an error of law, its setting aside of the First-tier Tribunal’s decision, and its choice to remit or remake are stages in one continuous process of deciding the appeal. They are not separately appealable decisions.

The statutory right to seek permission to appeal to the Court of Appeal arises only once the Upper Tribunal has completed the process required by section 12 and made a finally dispositive decision. Any intermediate determination merges into that final decision and may then be challenged. Alternatively, such an intermediate determination is a procedural, ancillary and preliminary decision excluded from appeal by article 3(m) of the 2009 Order.

The Secretary of State refused to revoke a deportation order concerning the appellant, a Nigerian national. The First-tier Tribunal dismissed her appeal under the Immigration Rules but allowed it on article 8 grounds. Both parties obtained permission to appeal to the Upper Tribunal.

On 5 February 2016, the Upper Tribunal found a material error of law in the First-tier Tribunal’s article 8 assessment, set aside that part of its decision, preserved its article 3 findings, and gave directions for remaking the decision. The appellant then sought permission to appeal to the Court of Appeal against those intermediate conclusions.

The central issue was whether such a determination was a “decision” appealable under section 13 of the Tribunals, Courts and Enforcement Act 2007, before the Upper Tribunal had completed the section 12 process.

1. The proposed appeal could not be pursued. The right under section 13 of the Tribunals, Courts and Enforcement Act 2007 arises only against a decision of the Upper Tribunal which finally disposes of the appeal from the First-tier Tribunal.

2. Section 12 creates a staged but continuous process. The Upper Tribunal must first decide whether the First-tier Tribunal made an error of law. If it finds an error, it must decide whether to set aside the decision, which depends on the materiality of that error. If it sets the decision aside, it must remit the case or remake the decision. The finding of error and the setting-aside determination are judicial acts, but they are intermediate stages rather than decisions for section 13 purposes.

3. The statutory language and structure require that conclusion. Section 12 describes the stages as occurring in deciding an appeal. It does not permit the Upper Tribunal to stop after identifying an error of law. Treating an earlier stage as appealable would interrupt the process which section 12(2)(b) requires the Upper Tribunal to complete.

4. This construction promotes finality, expedition and avoidance of satellite litigation. It does not deny access to a court: a party may challenge the composite final decision, including any earlier error-of-law or setting-aside conclusion.

5. Alternatively, even if an intermediate step were a decision under section 13, it would be excluded by article 3(m) of the Appeals (Excluded Decisions) Order 2009. It is procedural, ancillary and preliminary to the final determination of the appeal.

• Upper Tribunal (Immigration and Asylum Chamber): On 5 February 2016, it found a material error of law in the First-tier Tribunal’s article 8 assessment, set aside that part of the decision, retained the appeal for remaking, and preserved the article 3 findings.
• First-tier Tribunal: On 1 August 2014, it dismissed the appeal under the Immigration Rules and allowed it under article 8 ECHR.