Secretary of State for the Home Department v Md Jakir Hussan Saimon

A Cart judicial review which quashes an Upper Tribunal refusal of permission to appeal restores the position that there has been no lawful determination of that permission application. The application is therefore awaiting determination and the underlying immigration appeal remains pending for the purposes of section 104(2)(a) of the 2002 Act.

A person who leaves the United Kingdom while that appeal is pending is treated as having abandoned it. Later Tribunal steps in the abandoned appeal are invalid.

The respondent had appealed to the First-tier Tribunal against the Secretary of State’s decision of 9 December 2013 refusing to vary leave and giving removal directions. The First-tier Tribunal dismissed the appeal. Permission to appeal to the Upper Tribunal was refused first by the First-tier Tribunal and then by the Upper Tribunal.

A successful Cart judicial review quashed the Upper Tribunal’s refusal of permission on 13 May 2015. The respondent left the United Kingdom in about August 2015. In January 2017, Judge Canavan granted permission for the avoidance of doubt but held that the appeal had been abandoned on departure. The issue was whether the appeal had been pending when the respondent left the United Kingdom.

1. The appeal was treated as abandoned, and the application could not succeed. Permission to appeal to the Court of Appeal was refused.

2. Because the Secretary of State’s decision was an old decision for the transitional regime, the unamended section 104 of the 2002 Act applied. Part V of that Act was preserved by the Immigration Act 2014 (Commencement No.3, Transitional and Saving Provisions) Order 2014.

3. The quashing of the refusal of permission meant that, from 13 May 2015, there had been no lawful determination of the application for permission to appeal to the Upper Tribunal. The application was accordingly awaiting determination. The Tribunal declined to decide the different question whether an appeal was pending in the interval after a refusal of permission but before that refusal was quashed.

4. Section 104(2)(a) expressly provides that an appeal is not finally determined while an application for permission to appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007 could be made or is awaiting determination. That condition existed when the respondent left the United Kingdom.

5. The appeal was therefore pending at the date of departure. Under section 104, departure caused it to be treated as abandoned. There had consequently been no appeal before the Tribunal from that date, and all later proceedings in it were invalid.

• Upper Tribunal (Immigration and Asylum Chamber): held that the appeal was pending when the respondent departed, was therefore abandoned, and that subsequent Tribunal proceedings were invalid.
• High Court: in Cart judicial review proceedings, quashed the Upper Tribunal’s refusal of permission to appeal on 13 May 2015.
• Upper Tribunal: Upper Tribunal Judge Freeman had refused permission to appeal.
• First-tier Tribunal: Judge Turquet dismissed the appeal against the Secretary of State’s decision; First-tier Tribunal Judge Ford refused permission to appeal.