The Secretary of State for the Home Department v SSGA

An immigration appeal cannot be allowed or dismissed without a merits determination. Section 86 of the Nationality, Immigration and Asylum Act 2002 requires the First-tier Tribunal to determine every matter raised by the grounds of appeal.

Repeated non-compliance with directions does not amount to withdrawal, concession or abandonment. A party must take a positive act that clearly demonstrates it no longer pursues its case. A judge must independently decide whether an appeal may be determined without a hearing under rule 25 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, identify the applicable exception and give reasons. Where material credibility is disputed, determination without a hearing will be very rare.

The Secretary of State appealed against Judge Ali’s decision allowing an Iraqi national’s protection appeal. The First-tier Tribunal had treated the appeal as unopposed after the Secretary of State repeatedly failed to comply with directions and failed to attend a case-management review hearing.

The claimant’s appeal concerned asylum, humanitarian protection and human-rights grounds. Judge Ali decided the matter on the papers, without analysing the refusal decision, making findings of fact, identifying the ground on which the appeal succeeded, or giving merits reasons. The central issues were whether persistent procedural default permitted the Tribunal to treat the appeal as unopposed, allow it without considering the merits, or determine it without a hearing.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside and the case was remitted for a fresh merits hearing before a different judge.

2. Section 86 of the Nationality, Immigration and Asylum Act 2002 imposed a mandatory duty to determine every matter raised by the grounds of appeal. Judge Ali did not determine the asylum, humanitarian-protection or human-rights grounds. He made no findings on the disputed protection claim, did not assess the Secretary of State’s refusal decision, and did not identify the basis on which he allowed the appeal.

3. A judge deciding an appeal must independently determine it and exercise any available discretion personally. Judge Saffer’s direction that a decision allowing the appeal would be issued if the Secretary of State did not comply was incapable of directing the eventual judge’s decision. Judge Ali’s reasons did not dispel the risk that he had acted on that impermissible direction.

4. Persistent non-compliance with directions did not empower the Tribunal to deem the Secretary of State no longer to oppose the appeal. A positive act, such as an express written or oral concession, was required. The Secretary of State’s refusal letter remained her case and had to be considered. The contrary course was also contrary to natural justice.

5. Rule 25 required a hearing unless a specified exception applied. A judge determining a case on the papers had to decide that question independently, identify the exception, engage with its conditions and explain the exercise of any discretion. Rule 25(1)(e) required more than non-compliance. Rule 25(1)(g) also required compliance with rule 25(2). Where material credibility was disputed, determination without a hearing would be rare.

6. The errors deprived the Secretary of State of a fair hearing. The claimant’s application for wasted costs incurred in the Upper Tribunal failed because those costs arose from the First-tier Tribunal’s legal errors, not the Secretary of State’s procedural defaults.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeal, set aside Judge Ali’s decision, and remitted the protection appeal for a fresh merits hearing.
• First-tier Tribunal (Immigration and Asylum Chamber): Judge Ali, on 22 November 2021, allowed the claimant’s appeal after treating the Secretary of State as not opposing it because of repeated non-compliance with directions.