Nasreen Akhtar v Entry Clearance Officer

The territorial restriction in section 84(3A)(b) of the Immigration and Asylum Act 1999 is determined by the location of the person providing immigration advice or services. A representative authorised by a designated qualifying regulator in England and Wales may act while physically in England and Wales, including by remote means before a tribunal whose judge is elsewhere in the United Kingdom. The location of the client, tribunal, judge, hearing administration or destination of the advice is immaterial. The same approach applies to written and oral representations.

The appellant challenged the refusal of entry clearance for settlement as a dependent relative. The First-tier Tribunal refused permission for a doctor in Pakistan to give oral evidence remotely, and dismissed the appeal after considering the written evidence. The appellant argued that the refusal was irrational because the judge had overlooked material information concerning Pakistan’s position on remote evidence.

Before the Upper Tribunal, a further procedural issue arose because the appellant’s English barrister was in England while the judge was sitting remotely from Scotland. The Tribunal therefore considered the territorial scope of the regulatory scheme in Part V of the Immigration and Asylum Act 1999, particularly section 84(3A)(b).

1. The appeal was dismissed and the First-tier Tribunal’s decision was affirmed. The First-tier Tribunal had not erred in law by failing to act on a list concerning countries’ objections to remote evidence. As explained in Agbabiaka [2021] UKUT 00286 (IAC), such lists were never intended to apply to tribunal proceedings, and the FCDO had stated that no reliance should be placed upon them. Failure to adopt that misapprehension was not an error of law (paras 7–10).

2. Under sections 82 and 84 of the Immigration and Asylum Act 1999, immigration services include making representations on behalf of an individual in civil proceedings before a court, tribunal or adjudicator. The word “before” does not restrict the provision to oral advocacy. Written representations are also within the regulatory scheme (paras 29–31).

3. For the purposes of section 82(2)(a), “in the United Kingdom” refers to the location of the person providing the advice or services. The destination of the advice or the location of the client is irrelevant. The same meaning applies to the materially identical wording in section 84(3A)(b) (paras 32–38).

4. Accordingly, a person authorised by a designated qualifying regulator in England and Wales is qualified under section 84(1) while physically in England and Wales, but not while physically outside England and Wales. An English barrister may therefore advise a client in Scotland and make written or oral representations remotely before a tribunal, even if the judge is in Scotland. If the barrister travels to Scotland and appears there, further authorisation is required (paras 38–43).

5. The Tribunal observed that the territorial restriction produces significant anomalies and ought to be reconsidered, but it was required to interpret and apply the legislation as enacted. In normal circumstances, the availability of an England-and-Wales representative is not, by itself, a good reason for converting an otherwise in-person hearing in Scotland or Northern Ireland into a remote hearing (paras 40, 44).

• Upper Tribunal (Immigration and Asylum Chamber): affirmed the First-tier Tribunal’s dismissal of the appeal.
• First-tier Tribunal: Judge Devlin dismissed the human-rights appeal against refusal of entry clearance.