SA v The Secretary of State for The Home Department

On an appeal against revocation of protection status, the tribunal must examine whether the revocation decision breaches the United Kingdom’s international-protection obligations. It is not a free-standing assessment of whether removal would be unlawful or whether protection might arise from a different factual case. Under section 84(3)(b) of the Nationality, Immigration and Asylum Act 2002, the enquiry is tied to the original protection application and the facts relied upon for the grant of status.

An appellate tribunal may raise jurisdictional error of its own motion, but procedural fairness normally requires notice and an opportunity to make submissions. Any irregularity may be cured on appeal where the issue is a discrete question of law and no further fact-finding is required.

SA’s refugee status was revoked after the Secretary of State found that it had been obtained through deliberate misrepresentations about her nationality and protection claim. The First-tier Tribunal found that she was Yemeni rather than Saudi Arabian, dismissed her appeal under section 84(3)(a) of the Nationality, Immigration and Asylum Act 2002, but allowed it under section 84(3)(b) on the basis that removal to Yemen would breach article 3.

The Upper Tribunal identified a jurisdictional error, raised issues not argued before it, and concluded that SA’s appeal should be dismissed. The central questions before the Court of Appeal were whether the Upper Tribunal acted unfairly and whether the First-tier Tribunal had jurisdiction to assess humanitarian protection by reference to a country and risk never advanced by SA.

Appeal dismissed. The Upper Tribunal acted procedurally unfairly by deciding an unargued point without inviting submissions. There was nevertheless no material prejudice. The Court of Appeal heard full argument, no further fact-finding was required, and the issue could be determined on appeal without remittal.

1. Jurisdiction. A tribunal must have jurisdiction to determine whether it has jurisdiction. The Upper Tribunal was entitled, and in the circumstances obliged, to identify the First-tier Tribunal’s jurisdictional error even though the point had not been expressly argued. The court applied the approach in Virk and others v Secretary of State for the Home Department [2013] EWCA Civ 652.
2. Statutory construction. The target of an appeal under section 84(3) of the Nationality, Immigration and Asylum Act 2002 is the decision to revoke protection status. Section 84(3)(b) concerns whether that revocation breaches the United Kingdom’s obligations towards persons eligible for humanitarian protection. It does not require a fresh assessment of whether removal would breach those obligations. The enquiry must be framed by the original protection application and the facts relied upon. The tribunal could not base humanitarian protection on Yemeni nationality and risk which SA had never asserted and positively disputed.
3. Effect of the findings. Once the First-tier Tribunal found that SA was not Saudi Arabian and faced no relevant risk there, there was no factual basis for the revoked refugee status to continue. The presenting officer’s article 3 concession could not confer jurisdiction which the tribunal otherwise lacked. Revocation was mandatory under paragraph 339AB of the Immigration Rules.
4. Procedural fairness. Fairness is context-specific, as explained in R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531. It will rarely be appropriate to decide a potentially determinative unargued point without inviting submissions. The Court relied on the caution in R v Chief Constable of Thames Valley Police, ex parte Cotton [1990] IRLR 344 and the emphasis on fair hearing in Pathan v Secretary of State for the Home Department [2020] UKSC 41. The Court also observed obiter that the Robinson principle extends to a real danger of protection being granted to a person who does not qualify, not only to points assisting the claimant.
5. Final order. The procedural irregularity was cured by the full appeal hearing. The Upper Tribunal’s substantive conclusion was correct and the appeal was dismissed.

1. Court of Appeal (Civil Division) — dismissed SA’s appeal. It held that the Upper Tribunal should have invited submissions on the unargued jurisdictional point, but that the irregularity caused no material prejudice because the point was fully argued on appeal. [2025] EWCA Civ 357
2. Upper Tribunal (Immigration and Asylum Chamber) — in appeal UI-2023-004680, identified that the First-tier Tribunal had exceeded its jurisdiction by assessing humanitarian protection by reference to Yemen, and concluded that SA’s appeal should be dismissed.
3. First-tier Tribunal — dismissed SA’s appeal under section 84(3)(a) but allowed it under section 84(3)(b) of the Nationality, Immigration and Asylum Act 2002, relying on the asserted article 3 risk on return to Yemen.