Secretary of State for the Home Office v Hamilton Jorge da Silva Pinho

A First-tier Tribunal’s case-management powers cannot create jurisdiction where proceedings have not been commenced by an effective notice of appeal. A notice must relate to each decision and statutory appeal regime relied upon. An appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 is distinct from an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002.

Where the Article 8 deportation exception is relied upon, the elevated unduly harsh threshold must be applied to the individual child’s circumstances. The tribunal must give adequate reasons addressing material evidence, including evidence of the appellant’s risk of harm and the nature of the relationship with the child.

The Secretary of State appealed against a First-tier Tribunal decision allowing Hamilton Jorge da Silva Pinho’s appeal against deportation on human rights grounds. The First-tier Tribunal had before it a notice of appeal relating only to a stage 1 deportation decision under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.

Separate human rights and EUSS decisions were issued on 16 January 2024, but no notices of appeal were filed against them. After the hearing, the First-tier Tribunal relied on its case-management powers to treat the proceedings as including those decisions and allowed the human rights appeal. The Upper Tribunal considered whether that course was within jurisdiction and, alternatively, whether the reasoning on the unduly harsh test was legally adequate.

1. Jurisdiction. The appeal was allowed to the extent that the First-tier Tribunal’s decision contained material errors of law. Proceedings against a decision commence when an effective notice of appeal is provided. The notice must identify the decision and the statutory grounds relied upon. Here, the only notice related to the 15 November 2023 EUSS stage 1 decision. No proceedings had been commenced against either 16 January 2024 decision.
2. The First-tier Tribunal is a statutory tribunal with no inherent jurisdiction. Rule 6 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 permits irregularities to be waived only within the jurisdiction otherwise conferred. Consent, acquiescence, procedural convenience or the overriding objective cannot confer jurisdiction. The distinction between constitutive and adjudicative jurisdiction did not assist because the relevant human rights appeal had never been initiated.
3. An appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 is under a different statutory regime from an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002. A notice of appeal must therefore be filed in relation to each relevant decision. The jurisdictional ground could properly be raised in the Upper Tribunal.
4. Alternative human rights reasoning. The First-tier Tribunal failed adequately to apply the elevated meaning of unduly harsh. It did not properly address material findings concerning an entrenched pattern of abusive behaviour, the OASys assessment of risk to children and adults, the appellant’s imprisonment during much of the child’s life, the limited evidence of the relationship, and the practical alternatives to contact in the United Kingdom. Its conclusion that deportation would cause unduly harsh consequences was inadequately reasoned.
5. The decision was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. No findings were preserved. The matter was remitted to the First-tier Tribunal. It remained open to the appellant to file notices of appeal against the two 16 January 2024 decisions, apply for extensions of time and seek consolidation.

• First-tier Tribunal (Immigration and Asylum Chamber): Allowed the respondent’s appeal on human rights grounds after treating the proceedings as including separate January 2024 decisions, although no notices of appeal had been filed against them.
• Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal decision for jurisdictional and alternative reasoning errors and remitted the matter without preserved findings.