Lloyd Tomlinson, R (on the application of) v Secretary of State for the Home Department

A determination by a statutory tribunal of an identical issue between the same parties can bind the Secretary of State in a later administrative decision. The principle of finality, and issue estoppel where applicable, may therefore prevent the Secretary of State from re-litigating whether an applicant’s exclusion is compatible with Article 8.

The Devaseelan guidance is directed to earlier factual findings where the later decision concerns a different issue assessed at a later time. It does not displace issue estoppel where the legal issue is identical. A judicial review claim is an appropriate means of enforcing compliance with a binding tribunal determination where a further tribunal appeal would be futile or lacks jurisdiction to decide the public-law complaint.

The appellant was deported after receiving a five-year sentence. The First-tier Tribunal allowed his human-rights appeal against the refusal to revoke the deportation order. It found that his wife’s serious illness and need for his support created exceptional circumstances under Article 8.

After the deportation order was revoked, the appellant applied for entry clearance as his wife’s partner. The Entry Clearance Officer refused the application under the suitability provisions in Appendix FM, relying on the same conviction. The officer did not address the First-tier Tribunal’s findings.

The Upper Tribunal dismissed the appellant’s judicial review claim. It held that the earlier decision concerned revocation rather than entry clearance, and that a further First-tier Tribunal appeal was an adequate alternative remedy. The central issue was whether the Secretary of State was bound by the earlier Article 8 determination when deciding entry clearance.

1. Appeal allowed. The refusal of entry clearance was quashed. The court refused the further declaration sought that the appellant was presently entitled to entry clearance.

2. Revocation of a deportation order and the grant of entry clearance are distinct decisions. A deportation order prohibits entry, while a non-British citizen also requires leave to enter under the Immigration Act 1971. Rule 392 of the Immigration Rules confirms that revocation merely makes a person eligible to apply. It does not determine the duration or conditions of any entry clearance. Ground 1 therefore failed.

3. However, the First-tier Tribunal had necessarily determined that the appellant’s wife’s Article 8 rights outweighed the public interest in his continued exclusion arising from his conviction. That was the identical issue which arose when the Entry Clearance Officer relied on the conviction under Appendix FM rule S-EC.1.4(a).

4. The principles of finality apply in public law. Following Secretary of State for the Home Department v TB (Jamaica), [2008] EWCA Civ 977, and R (Yasser Al-Siri) v Secretary of State for the Home Department, [2021] EWCA Civ 113, a tribunal determination of an issue establishing a legal right binds the Secretary of State unless there is a material change of circumstances or relevant fresh evidence. The different form of the two immigration decisions did not prevent issue estoppel, because the same Article 8 issue was necessary to each.

5. The Devaseelan guidance did not govern an attempt to re-open that identical issue. It concerns the treatment of earlier factual findings where a later decision concerns an assessment at a different time. In any event, there had been no material change in the circumstances on which the First-tier Tribunal had ruled. The Secretary of State was therefore bound to treat the conviction as incapable of justifying refusal of entry clearance. The decision was unlawful.

6. A further First-tier Tribunal appeal was not an adequate alternative remedy. The Entry Clearance Officer’s failure to engage with the earlier determination was a classic public-law error, and the tribunal could not determine that complaint as such. A further appeal would also have produced only the same result and wasted tribunal resources. Judicial review was properly available.

7. The court could not compel a grant of entry clearance. On reconsideration, the Secretary of State would have to take account of the appellant’s wife’s death, which removed the factual basis of the former Article 8 claim. The court could not retrospectively prescribe either the grant or its terms.

• Court of Appeal (Civil Division): Allowed the appeal, quashed the entry-clearance refusal, and refused a declaration of present entitlement to entry clearance: [2025] EWCA Civ 253.
• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the judicial review claim on 26 July 2024 (reference JR-2023-LON-002505). That decision was overturned on grounds 2 and 4.
• First-tier Tribunal: Allowed the appellant’s appeal against the refusal of his human-rights claim on 16 September 2022, leading to revocation of the deportation order. The Upper Tribunal later dismissed the Secretary of State’s error-of-law appeal (reference UI-2022-005592).