KP (Pakistan) & Anor v The Secretary of State for the Home Department

An appellate court has no jurisdiction over an appeal from the Upper Tribunal unless it is the relevant appellate court specified by the Upper Tribunal under Tribunals, Courts and Enforcement Act 2007, section 13.

The specification is determined objectively from the Tribunal’s decision and related notice. A defective or ambiguous notice does not displace a clear specification of another court. Administrative acceptance of an application, or earlier judicial consideration of it, cannot confer jurisdiction where the statute withholds it. Proceedings conducted without jurisdiction are a nullity.

The first appellant, a Pakistani national, applied for leave to remain as a Tier 1 (Entrepreneur) Migrant. Her husband’s application depended upon hers. The First-tier Tribunal allowed their appeals against the refusal of leave to remain, but the Upper Tribunal allowed the Secretary of State’s appeal, set aside that determination and dismissed the underlying appeals.

The Upper Tribunal refused permission to appeal. Its determination was headed as an application for permission to appeal to the Court of Session, but the accompanying Form IA 157 was sent from London and gave directions for an onward appeal to the Court of Appeal in England and Wales. The appellants applied to this court and were eventually granted permission to appeal out of time.

The central issue was whether this court had statutory jurisdiction where the Upper Tribunal had specified the Court of Session as the relevant appellate court.

1. Declaration of no jurisdiction. The court declared that it had no jurisdiction, and had never had jurisdiction, to hear the appeal. The merits of the immigration appeal were therefore not determined.

2. Under section 13 of the Tribunals, Courts and Enforcement Act 2007, any right of appeal from the Upper Tribunal exists only by statute and lies to the court specified by the Upper Tribunal as the relevant appellate court. The Upper Tribunal must specify one court; it cannot leave an appellant with a choice.

3. Read objectively and as a whole, the Upper Tribunal’s documents specified the Court of Session. The decisive feature was the heading of the judge’s determination: “Application for Permission to Appeal to the Court of Session”. The covering correspondence was consistent with that conclusion because it distinguished appeals to the Court of Appeal from Scottish appeals to the Court of Session.

4. Bean LJ accepted that Form IA 157 was both misleading and defectively drafted. It was liable to mislead because it came from a London office without expressly identifying the Court of Session. It also failed to give the required information about the time and method for an application to that court under the Tribunal Procedure (Upper Tribunal) Rules 2008. Those defects did not alter the Tribunal’s clear statutory specification.

5. The Civil Appeals Office’s acceptance of the application, and the fact that two Lords Justices had previously considered it, could not create jurisdiction. The court followed the consequence illustrated by Gardi v SSHD (No. 2) [2002] 1 WLR 3282: a substantive judgment given without jurisdiction is a nullity. No order for costs was made because the Secretary of State had taken more than four years to raise the jurisdiction point.

• Court of Appeal (Civil Division): Declared that it had no jurisdiction because the Upper Tribunal had specified the Court of Session as the relevant appellate court under section 13 of the Tribunals, Courts and Enforcement Act 2007.
• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s determination, and dismissed the appellants’ underlying appeals.
• First-tier Tribunal: Allowed the appellants’ appeals against the refusal of leave to remain.