Basharat Ali v The Secretary of State for the Home Department

An accidental error in a tribunal permission decision may be corrected under rule 31 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 or rule 42 of the Tribunal Procedure (Upper Tribunal) Rules 2008, even where correction reverses the stated outcome. The power is confined to a clear and obvious contradiction between the decision recorded and the judge’s evident intention. Otherwise, parties must proceed on the recorded decision.

In an Article 8 case concerning a student, administrative error and delay do not make removal disproportionate unless they caused demonstrable prejudice capable of overcoming the strong public interest in immigration control.

The appellant, a Pakistani national who had entered as a student, appealed against the First-tier Tribunal’s dismissal of his human rights appeal. His earlier application for further student leave had been affected by misdirected Home Office correspondence and a prolonged delay in implementing an earlier Upper Tribunal decision requiring a further opportunity to find a sponsor.

The First-tier Tribunal later dismissed his Article 8 appeal. Its permission judge extended time but recorded that permission was granted while giving reasons which plainly stated that the grounds lacked merit. The respondent identified that contradiction in a rule 24 response.

The Upper Tribunal considered how such errors in permission decisions should be corrected, and whether the First-tier Tribunal’s inadequate engagement with the alleged prejudice caused by the respondent’s conduct was material to the Article 8 outcome.

1. The appeal was dismissed. The First-tier Tribunal had erred by failing adequately to address the appellant’s case that the respondent’s errors and delay had prevented him continuing his studies. The error was not material, because the evidence did not establish that the appellant had suffered the alleged prejudice or that removal was disproportionate.

2. Rule 31 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and rule 42 of the Tribunal Procedure (Upper Tribunal) Rules 2008 can correct an accidental error in a decision granting or refusing permission to appeal. They may correct the decision itself, even if the corrected outcome is the opposite of that originally recorded. The essential question is whether the recorded order failed to express what the judge intended when it was promulgated.

3. The correction process is confined to cases of a clear and obvious contradiction between the reasons and the order. In any other case, the recorded permission decision governs. An inter partes inquiry into a possible slip will ordinarily cause unjustified delay and waste tribunal resources.

4. Rule 23(1A) of the Upper Tribunal Rules does not make a mistaken First-tier Tribunal grant of permission immune from correction. An Upper Tribunal judge may act as a First-tier Tribunal judge and correct the error under rule 31. Where an Upper Tribunal judge plainly intended to grant permission but recorded a refusal, the appropriate course is an application under rule 42, since the refusal is an excluded decision under section 13(8)(c) of the Tribunals, Courts and Enforcement Act 2007.

5. Article 8 is not a general means of securing an opportunity to complete or continue studies in the United Kingdom. Although serious administrative dysfunction might in an exceptional case reduce the weight of immigration control, the applicant must prove resulting prejudice. Here, the appellant had sufficient time to act, failed to follow the stated procedure for booking a replacement English test, and did not show that he could meet the other student-route requirements. The respondent’s delay was regrettable but did not cause a legally material disadvantage.

• Upper Tribunal (Immigration and Asylum Chamber): The appellant’s appeal was dismissed. The First-tier Tribunal had made an error of law, but it was not material to the outcome.
• First-tier Tribunal: The appellant’s appeal against refusal of his human rights claim was dismissed in a decision promulgated on 9 October 2019.