SA v The Secretary of State for The Home Department

The Court of Appeal considered whether the Upper Tribunal was required, on identifying a fundamental jurisdictional error in the First-tier Tribunal's determination of an appeal under section 82(1)(c) of the Nationality, Immigration and Asylum Act 2002, to alert the parties and invite submissions before deciding the appeal on that ground. The court analysed the interaction between section 82 and section 84 of the NIAA and relevant provisions of the Immigration Rules (notably paragraph 339C and paragraph 339AB) to conclude that an appeal against revocation of protection status must be decided by reference to the original protection claim. Where the FtT revoked refugee status for material dishonest misrepresentation, it had no jurisdiction to allow the appeal by conferring humanitarian protection on the basis of a country of origin that had not been the subject of the original protection claim. Although the Upper Tribunal should ordinarily have invited submissions before deciding a new jurisdictional point it raised of its own motion, no prejudice arose because the Court of Appeal could determine the discrete legal question itself and the UT’s result was correct. Consequently the appeal was dismissed.

Background and parties: SA is a protected party represented by a court-appointed litigation friend. She was originally granted refugee status on appeal by the FtT and later indefinite leave to remain. The Secretary of State concluded that refugee status had been obtained by deliberate misrepresentation (including false nationality) and revoked that status under the Immigration Rules. SA appealed the revocation under section 84(3) of the NIAA. The FtT dismissed the ground under section 84(3)(a) but allowed under section 84(3)(b) by reference to humanitarian protection based on Yemen. The Secretary of State appealed to the Upper Tribunal and then to the Court of Appeal.

Nature of the claim and relief sought: The appeal concerned the lawfulness and scope of the FtT's decision on an appeal against revocation of protection status, and whether the UT acted fairly in raising and deciding a jurisdictional point which had not been argued below. The Secretary of State sought the UT's and then the Court of Appeal's intervention to dismiss the FtT's allowance of humanitarian protection given the factual and procedural history.

Issues framed: (i) Whether the FtT had jurisdiction to decide an appeal against revocation of refugee status by granting humanitarian protection based on facts and a country of origin that had not been advanced in the original protection claim; (ii) whether the UT was entitled to raise a jurisdictional error of its own motion and whether procedural fairness required the UT to alert the parties and invite submissions before deciding the issue; (iii) whether any procedural unfairness caused material prejudice requiring remittal.

Reasoning and disposition: The court analysed Part 5 of the NIAA (especially sections 82 and 84), the Immigration Rules (including paragraphs 339C and 339AB) and the legislative scheme governing refugee status and humanitarian protection. It concluded there is an indissoluble link between the facts on which a protection claim is made (including the relevant "country of origin") and the form of protection granted; an appeal against revocation of protection status must be determined by reference to the original claim. The FtT therefore lacked jurisdiction to allow the appeal under section 84(3)(b) by reference to Yemen when SA had not advanced protection claims based on Yemen and had consistently denied Yemeni nationality. The UT was entitled, and in fact obliged, to consider the jurisdictional point of its own motion, but should have given the parties an opportunity to make submissions before deciding it. The Court of Appeal found no material prejudice: the legal issue was discrete, no factual findings were required, and the Court could determine the point itself. The appeal was dismissed.

Context and implications: The court emphasised the importance of procedural fairness and that, although an appellate tribunal may take strong jurisdictional points of its own motion to protect the state's compliance with international obligations, it is generally appropriate to give the parties notice and an opportunity to address the point. In rare cases where no prejudice results and the appellate court can fairly decide the point, remittal is unnecessary.

This was an appeal against the Upper Tribunal's dismissal of the Secretary of State's appeal. The Court of Appeal held that the Upper Tribunal was entitled, and in this case obliged, to consider the jurisdictional point it raised of its own motion and was correct on the substantive law that the FtT lacked jurisdiction to decide the appeal under section 84(3)(b) by reference to Yemen when the original protection claim related to Saudi Arabia. However, the Court held that the UT should have given parties an opportunity to make submissions on that point before making its final decision. No material prejudice resulted because the legal question was discrete, no further fact-finding was required and the Court of Appeal could decide the issue itself; accordingly the appeal is dismissed and the UT’s conclusion stands.

First-tier Tribunal determination promulgated 1 September 2023 (FtT allowed appeal under section 84(3)(b) despite dismissing section 84(3)(a)). Permission to appeal to the Upper Tribunal granted by UT Judge Blundell on 29 November 2023. Upper Tribunal (Judges Blundell and Kebede, UI-2023-004680) allowed in part its review and dismissed the appeal. The matter was then appealed to the Court of Appeal (this judgment) [2025] EWCA Civ 357.