OB (Ukraine) v Entry Clearance Officer

An appeal against refusal of visitor entry clearance became academic after a fresh decision granted the visa and the passport was available for collection. The Court of Appeal dismissed the appeal without deciding whether Article 8 was engaged. An academic appeal should not proceed unless circumstances justify exercising the court’s discretion to determine it. A tribunal hearing an entry-clearance appeal has no power to award damages. The Tribunals, Courts and Enforcement Act 2007 limits the statutory appeals to points of law and does not confer damages jurisdiction. A Convention damages claim must be brought separately in a court with civil jurisdiction under the Human Rights Act 1998.

The appellant, a Ukrainian national, challenged the refusal of a further visitor visa. The First-tier Tribunal allowed his human-rights appeal, finding that he intended to return to Ukraine and that refusal disproportionately interfered with family life. The Upper Tribunal set aside that decision, found that Article 8 was not engaged, and dismissed the appeal.

After permission to appeal was granted, entry clearance was issued and the passport was made available for collection. The appellant nevertheless pursued the appeal, seeking clarification of the Article 8 issue and compensation for delay and alleged unlawfulness. The central questions were whether the appeal should proceed despite the grant of entry clearance and whether compensation could be claimed within those proceedings.

1. Appeal academic. The fresh grant of entry clearance gave the appellant all that he could obtain by challenging the refusal. The appeal could not provide any further remedy, even if the First-tier Tribunal’s decision were reinstated. The court therefore declined to exercise its discretion to determine the substantive Article 8 issue and dismissed the appeal as academic.
2. Damages jurisdiction. The First-tier Tribunal had no power to award damages on an appeal against an entry-clearance decision. Appeals to the Upper Tribunal under section 11 and to the Court of Appeal under section 13 of the Tribunals, Courts and Enforcement Act 2007 were confined to points of law. The Court of Appeal’s powers under section 14 did not include jurisdiction to award damages.
3. Separate civil claim. There was no general right to damages for an unlawful administrative decision; the normal remedies were appeal or judicial review. Under section 8(2) of the Human Rights Act 1998, any claim for damages for breach of the Convention had to be brought in a court with power to award damages in civil proceedings, such as the County Court or High Court, not in the tribunal appeal process. Section 32A of the Senior Courts Act 1981, concerning provisional damages for personal injuries, was irrelevant.
4. The court did not determine whether Article 8 was engaged. It observed that the right of appeal would probably weigh heavily against damages being necessary to afford just satisfaction. In any event, a damages claim raised for the first time in the Court of Appeal, without being pleaded or argued below, would be inappropriate. Appeal dismissed.

• Court of Appeal (Civil Division). Dismissed the appeal because the grant of entry clearance had made it academic, without determining the substantive Article 8 issue.
• Upper Tribunal (Immigration and Asylum Chamber). Set aside the First-tier Tribunal’s determination, remade the decision, and dismissed the appellant’s appeal.
• First-tier Tribunal. Allowed the appellant’s human-rights appeal against refusal of visitor entry clearance.