The Secretary of State for the Home Department v Morgan Hayat Smith

A First-tier Tribunal’s refusal to determine a ground of appeal is itself appealable as a decision under section 11(1) of the Tribunals, Courts and Enforcement Act 2007. A successful party need not seek permission to challenge an adverse ground if success on that ground would produce no tangible additional benefit. If the opposing party appeals, the successful party may ordinarily rely on rule 24(3)(e) to advance that ground in its response.

Permission remains necessary where the adverse ground could yield a material benefit. The Upper Tribunal may waive the usual requirement for a prior First-tier Tribunal permission application, but will rarely do so where that route should have been used. Anonymity in immigration proceedings is exceptional and must be justified by a necessary derogation from open justice.

The Secretary of State refused to revoke a deportation order against the claimant, an EEA national, and also rejected his Article 8 human-rights claim. The First-tier Tribunal allowed the appeal under the Immigration (European Economic Area) Regulations 2016, but expressly did not determine Article 8.

The Secretary of State appealed the EEA determination. In a rule 24 response, the claimant sought to challenge the First-tier Tribunal’s failure to decide the human-rights appeal. The Upper Tribunal considered whether the First-tier Tribunal had jurisdiction to entertain the in-country EEA appeal, whether the claimant required permission to advance Article 8, and whether anonymity was justified.

1. The Secretary of State’s appeal succeeded. Regulation 37(1)(d) of the Immigration (European Economic Area) Regulations 2016 barred an in-country appeal against refusal to revoke a deportation order. The First-tier Tribunal therefore lacked jurisdiction to determine that appeal. Its decision under the 2016 Regulations was set aside and remade by formally dismissing the appeal for want of jurisdiction.

2. The decision letter nevertheless contained a distinct refusal of a human-rights claim. That gave rise to an appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002. The First-tier Tribunal was obliged to determine the Article 8 ground, but unlawfully declined to do so merely because it had allowed the EEA appeal.

3. A refusal to decide a ground is a “decision” within section 11(1) of the Tribunals, Courts and Enforcement Act 2007. However, a party who has succeeded below need not seek permission concerning an unsuccessful ground where a favourable determination would have yielded no material, tangible benefit. Once the opposing party has obtained permission, rule 24(3)(e) of the Tribunal Procedure (Upper Tribunal) Rules 2008 ordinarily permits that party to rely on the adverse ground in a response.

4. Where permission is required, it should first be sought from the First-tier Tribunal. Rule 7(2)(a) nevertheless enables the Upper Tribunal to waive non-compliance with rule 21(2)(b). That discretionary power will rarely assist a party who could and should have sought First-tier Tribunal permission before the other party appealed.

5. The Article 8 decision was set aside and retained for remaking by the Upper Tribunal. The parties were directed to address the relevance of the claimant’s asserted British citizenship. The claimant’s anonymity request was refused: no necessary risk of harm justified departure from open justice.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s EEA determination and formally dismissed that appeal for want of jurisdiction. It also set aside the unresolved human-rights appeal for remaking.

• First-tier Tribunal: allowed the claimant’s appeal under the Immigration (European Economic Area) Regulations 2016 but did not separately consider Article 8.