Singh (India) v Secretary of State for the Home Department

In a statutory human-rights appeal concerning an application outside the Immigration Rules, the tribunal exercises a merits jurisdiction and stands in the shoes of the Secretary of State. It must decide for itself, on the evidence available at the hearing, whether the decision is compatible with article 8. Under section 86(3)(a) of the Nationality, Immigration and Asylum Act 2002, an appeal must be allowed for unlawfulness only where the decision read as a whole is unlawful. An immaterial error does not require the appeal to be allowed or the case to be remitted. The Upper Tribunal was therefore entitled to remake the decision and dismiss the appeal after finding removal proportionate.

The appellant, an Indian citizen, entered the United Kingdom as a visitor in 2001 and later overstayed. He made applications for leave to remain based on human rights and compassionate grounds, including an application outside the Immigration Rules. The Secretary of State applied the wrong version of the Rules and omitted consideration of article 8 outside the Rules.

The First-tier Tribunal dismissed the appeal after conducting a proportionality assessment. The Upper Tribunal accepted that the Secretary of State's decision was not in accordance with the law, but remade the outcome and dismissed the appeal. The central issue before the Court of Appeal was whether that error required the appeal to be allowed and the case remitted, or whether the tribunal could determine the human-rights merits itself.

Disposition

The Court of Appeal unanimously dismissed the appeal. The Secretary of State's decision contained an error of law, but the Upper Tribunal was entitled to determine the article 8 issue for itself and uphold removal.

1. Merits jurisdiction. On a statutory appeal on a Convention ground, the tribunal is not confined to judicial review. Following the principle stated in R (Huang) v Secretary of State for the Home Department [2007] 2 AC 167, it must decide whether the challenged decision is unlawful as incompatible with Convention rights. It considers the relevant evidence afresh as at the hearing, gives appropriate weight to the Secretary of State's specialist expertise, and stands in the decision-maker's shoes.
2. Statutory construction. An application for leave outside the Immigration Rules is an application for a discretionary remedy outside the Rules. It falls within section 86(6) of the Nationality, Immigration and Asylum Act 2002, so section 86(3)(b) does not apply. Section 86(3)(a) applies in context, but requires the appeal to be allowed only where the decision read as a whole is unlawful. An immaterial error does not itself make the decision unlawful or require allowance merely to correct it.
3. Remittal and remaking. Remittal to the Secretary of State should be confined to cases where the relevant policy or its application is more appropriately exercised by the Secretary of State than by a tribunal. Human-rights issues ordinarily fall within the tribunal's day-to-day merits jurisdiction. The First-tier Tribunal could remake a decision of this kind, and therefore so could the Upper Tribunal.
4. Application. The Upper Tribunal correctly accepted the legal error, reassessed the article 8 claim, and concluded that removal was proportionate. A fresh decision would serve no discernible purpose, so dismissal of the appeal was correct.

• Court of Appeal (Civil Division): [2017] EWCA Civ 362; unanimously dismissed the appeal and upheld the Upper Tribunal's ability to remake the decision.
• Upper Tribunal: [2014] UKAITUR IA150232013; accepted that the Secretary of State's decision was not in accordance with the law, but remade the outcome and dismissed the appeal.
• First-tier Tribunal: dismissed the appellant's appeal in a determination dated 15 November 2013.