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

This appeal concerned whether the Entry Clearance Officer was bound by an earlier First-tier Tribunal decision that had revoked a deportation order on Article 8 grounds, and whether judicial review was an appropriate route given the availability of an appeal. The court held that the decision to revoke the deportation order and the decision whether to grant entry clearance turned on the same issue — whether the applicant's partner's Article 8 rights outweighed the public interest in exclusion under Rule S-EC.1.4(a) and related statutory provisions (Immigration Act 1971 ss.3 and 5; NIAA s.117C; Appendix FM and GEN.3.2 of the Immigration Rules).

The court concluded that, absent a material change of circumstances or fresh evidence, the Secretary of State was bound by the FTT's determination and could not re-open the same issue in a subsequent administrative decision. Principles derived from Thrasyvoulou, TB (Jamaica), Al-Siri and the Devaseelan guidance informed the court's analysis of finality, issue estoppel and the appropriate approach where earlier tribunal findings exist.

The court allowed the appeal, quashed the refusal of entry clearance as unlawful for failing to give effect to the FTT decision, and held that the availability of an appeal to the FTT was not an adequate alternative remedy in the circumstances.

The appellant is a Jamaican national who had been deported to Jamaica following a custodial sentence of five years for possession of an automatic weapon. He later married a British citizen who required specialist medical care in the United Kingdom. The First-tier Tribunal allowed an appeal seeking revocation of the deportation order on Article 8 grounds, concluding that the partner's health needs and inability to relocate constituted exceptional and very compelling circumstances outweighing the public interest in deportation. The deportation order was revoked but the Entry Clearance Officer subsequently refused entry clearance under Appendix FM S-EC.1.4(a) because of the appellant's earlier conviction.

The appellant sought judicial review of the refusal on grounds including abuse of process, failure to give effect to the FTT's decision, irrationality, and oppression. The Upper Tribunal dismissed the judicial review claim, holding that the FTT decision related to revocation of the deportation order rather than entry clearance and that an appeal to the FTT was an adequate alternative remedy.

The Court of Appeal considered whether the issues decided by the FTT (whether Article 8 rights outweighed the public interest in exclusion) were the same issues required to be decided when determining an entry clearance application, and whether principles of finality/issue estoppel or the Devaseelan guidance applied. The court analysed relevant authorities including Thrasyvoulou, TB (Jamaica), Al-Siri, DN (Rwanda) and the Devaseelan guidance as summarised in BK (Afghanistan).

The court reasoned that the FTT's finding that the partner's Article 8 rights outweighed the public interest in maintaining exclusion necessarily determined the central issue both for revocation and for entry clearance. Absent new evidence or material change of circumstances, the Secretary of State was bound by that determination. The Entry Clearance Officer’s failure to address the FTT decision was therefore unlawful. The court also concluded that the prospect of an appeal to the FTT was not an adequate alternative remedy where the FTT decision had already determined the issue and a further appeal would be duplicative or bound to reach the same result.

Remedy: the court quashed the refusal of entry clearance. The court declined to make a declaration that the appellant was entitled to entry clearance because, by the time of the appeal, the factual basis for the FTT's decision (the sponsor's need for support) had been overtaken by the sponsor’s subsequent death; the court had no power to compel the precise terms of any entry clearance and the factual context had changed.

Appeal allowed. The Court of Appeal held that the Entry Clearance Officer was bound by the FTT's determination that the appellant's partner's Article 8 rights outweighed the public interest in exclusion; the refusal of entry clearance was therefore unlawful for failing to give effect to that determination. The court also held that an appeal to the FTT was not an adequate alternative remedy in the circumstances. The refusal of entry clearance was quashed but no declaration ordering entry clearance was made because intervening events (the partner's subsequent death) removed the factual basis for the relief sought.

Appeal to the Court of Appeal from the Upper Tribunal (Immigration and Asylum Chamber) (Judge Lesley Smith) JR-2023-LON-002505, following an earlier First-tier Tribunal decision allowing the appellant's human rights appeal (Judge Karbani, 16 September 2022). The Secretary of State's appeal against the FTT decision was dismissed by the Upper Tribunal (UI-2022-005592) on 2 May 2023. Permission to bring this appeal to the Court of Appeal was granted by Elisabeth Laing LJ.