Amarildo Isufaj v The Secretary of State for the Home Department

Where a permission-to-appeal form contains an apparent conflict between its formal decision and its reasons, the decision is the crucial element. Permission decisions must be intelligible to tribunal staff, parties and any appellate court.

Under Immigration (European Economic Area) Regulations 2016, a person required by regulation 37(1) to institute an appeal from outside the United Kingdom may continue that appeal after subsequently entering the United Kingdom. The Regulations impose no requirement that the appellant remain abroad. In a case not involving removal under regulation 23(6)(b), however, regulation 41 gives no right to temporary admission to attend the hearing; that remains for the Secretary of State.

The appellant, an Albanian national married to a Lithuanian citizen, was refused admission to the United Kingdom on the basis that the marriage was one of convenience. He left the United Kingdom and exercised his appeal right under regulation 36 of the Immigration (European Economic Area) Regulations 2016.

The First-tier Tribunal dismissed the appeal. It placed the burden on the appellant to prove that the marriage was genuine and failed to address substantial photographic and other evidence. Permission to appeal was formally granted, although the reasons section of the permission form said that time would not be extended. A later Upper Tribunal decision treated the appeal as invalid, but that decision was reviewed and set aside.

The Upper Tribunal considered whether the appeal remained effective after the appellant had entered the United Kingdom, and whether the First-tier Tribunal had erred in law.

1. The appeal was allowed. The First-tier Tribunal’s decision was set aside for material error of law, and the Upper Tribunal directed that the decision be remade in that Tribunal.

2. The formal statement in a permission-to-appeal form that “The application is granted” was the operative decision. The inconsistent statement in the reasons section that time was not extended had to be read in light of that grant. Applying by analogy Safi and Others (Permission to appeal decisions) [2018] UKUT 00388 (IAC), the Tribunal held that the formal decision is crucial where the reasons create apparent contradiction or uncertainty. The earlier Upper Tribunal decision that there was no valid appeal was therefore properly set aside.

3. Regulation 37(1) required the appellant to institute this kind of regulation 36 appeal while outside the United Kingdom. That requirement was met. Neither regulation 37 nor Schedule 2 to the Regulations imposed a continuing requirement that he remain outside the United Kingdom after the appeal had been instituted. His later physical presence in the United Kingdom did not cause the appeal to lapse or become ineffective.

4. The appeal was not against removal under regulation 23(6)(b). Accordingly, regulation 41 did not confer a right to temporary admission for the appellant to attend the hearing. Whether to grant such admission was for the Secretary of State, subject to the terms of the relevant regime.

5. The First-tier Tribunal had wrongly treated the appellant as carrying the legal burden of proving that the marriage was genuine. Although the evidential burden may shift, the legal burden remained on the Secretary of State to establish a marriage of convenience. That error governed the judge’s treatment of the evidence, including material which had not been addressed. The findings could not stand.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for material error of law, and retained the remaking.

• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Gill reviewed and set aside the earlier decision of Deputy Upper Tribunal Judge Renton, which had held that there was no valid appeal because permission had been sought out of time.

• First-tier Tribunal: Dismissed the appeal against refusal of admission. Its decision was set aside by the present Upper Tribunal.