The Secretary of State for the Home Department v HH

The appellate scheme in Nationality, Immigration and Asylum Act 2002 requires the Tribunal to determine an appeal. It may allow or dismiss an appeal, in whole or in part, but it cannot make either outcome conditional upon later evidence.

Where an unresolved requirement of the Immigration Rules requires further evidence, the proper course is ordinarily to adjourn and give directions before deciding the appeal. In an entry-clearance appeal governed by the post-2014 provisions, post-decision evidence may be considered under section 85(4), provided that it does not raise a new matter.

The Secretary of State appealed against a First-tier Tribunal decision concerning a young person’s application for entry clearance to join her father in the United Kingdom under paragraph 297 of the Immigration Rules.

The First-tier Tribunal found that the sponsor was her biological father and had sole responsibility for her. It nevertheless required further evidence about the suitability of the sponsor’s accommodation and purported to allow the appeal only if that evidence were supplied. It also considered refugee family-reunion provisions, although the sponsor had never had refugee status.

The central issues were whether the First-tier Tribunal could conditionally allow the appeal and whether the Upper Tribunal could consider later evidence of accommodation when remaking the decision.

1. The Secretary of State’s appeal was allowed. The First-tier Tribunal’s conditional decision involved a material error of law and was set aside.

2. The scheme of sections 82 to 86 of the Nationality, Immigration and Asylum Act 2002 does not permit a tribunal to allow or dismiss an appeal conditionally. Although amended section 86 does not repeat the former express direction to allow or dismiss, section 86(2) requires the tribunal to determine the grounds of appeal and matters which section 85 requires it to consider. The appeal must therefore be allowed or dismissed, in whole or in part.

3. Where the judge raised an unresolved issue concerning compliance with paragraph 297 of the Immigration Rules, the appropriate course was to adjourn and direct evidence on that issue before deciding the appeal. The First-tier Tribunal had not identified who would assess the later landlord’s and surveyor’s material, or how an unconditional decision would result from its directions.

4. The Upper Tribunal remade the decision. The appeal was governed by the new statutory appeal provisions because the pre-6 April 2015 application under Part 8 was a human-rights claim. Under section 85(4), the Tribunal could consider post-decision evidence which was not a new matter. The later evidence showed that the sponsor now occupied a one-bedroom flat with a separate sitting room and no other occupant.

5. The existing findings of biological relationship and sole responsibility were preserved. The sponsor could maintain the appellant, and the current accommodation was suitable. The requirements of paragraph 297 were met, so the entry-clearance appeal was allowed. A whole fee award of £140 was made.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s conditional decision for material error of law, and remade the decision by allowing the entry-clearance appeal under paragraph 297 of the Immigration Rules.
• First-tier Tribunal: On 7 March 2017, purported to allow the appeal subject to later compliance with directions concerning refugee status or accommodation evidence.