UK: Court Of Appeal Underlines that Unfair Decisions will be Set Aside, Whilst Expanding the Jurisdiction of the First Tier Tribunal

Last Updated: 26 November 2010
Article by James Packer

Those who deal regularly with the UK Border Agency will sadly be accustomed to receiving unfair decisions, which can have a devastating impact upon the lives of their clients, no matter how blameless they may be. Sometimes UKBA act in a manner that is designed to avoid an appeal against the decision until the applicant has returned overseas. What remedies are available in these circumstances?

The Court of Appeal has considered these questions in an important judgment: Anwar and Others V Secretary of State for the Home Department [2010] EWCA Civ 1275. Duncan Lewis acted for the second Appellant of three. This article considers the implications for appeals to the Tribunal and other remedies.

The Background facts:

In two of the cases the Appellants were foreign national students; fee- payers who effectively subsidise higher education for British students. In both cases they were initially studying at Colleges that were 'approved' by UKBA – i.e. on the register of training and education providers (which is now a requirement for leave as a student). In both cases the colleges which they attended were later removed from the register, and they commenced studies at other colleges in consequence. In both cases the UKBA later took a decision to remove them from the UK on the basis that they had obtained their leave to remain in the UK by deception.

It should be noted that in the case of Ms. Pengeyo she had herself contacted UKBA for advice and had been advised to find a new college, while Mr. Anwar had become dissatisfied with his college and left it before it was even removed from the register. Both appealed the decision to remove them from the UK and, unsurprisingly perhaps in both cases the Immigration Judges separately found that 'Ms Pengeyo had been guilty of no deception at all' and that there was no basis for the allegation against Mr Anwar either.


In both cases the argument in later tribunal proceedings, and again in the Court of Appeal, turned on the question of jurisdiction. The Secretary of State argued that the setting of removal directions was an immigration decision that could only be appealed out-of-country. In both cases the Immigration Judge at first instance had rejected that submission, but in each case that decision had been overturned in later proceedings in the Tribunal. In both cases the initial Immigration Judge had relied upon a decision CD (India) [2008] UKAIT 00055 that essentially treated the setting of removal directions against a person with leave as a curtailment of that leave (and therefore appealable in-country), whereas later it was realised that subsequent authority Saleh [2008] EWHC 3196 Admin had held otherwise, and the appeals had been dismissed for want of jurisdiction.

The Court of Appeal first clarified that an apparent bar to an appeal is no bar to the lodging of the appeal. The Court pointed out that to hold otherwise would not allow for consideration as to whether the bar actually exists – e.g. if there is a dispute about whether the Appellant is truly outside of the country.

In a second step of equal importance the Court of Appeal held that the lack of jurisdiction must be specifically pleaded and drew an analogy with a failure on the part of a Defendant to take a limitation point in tort proceedings:

Any apparently absolute bar to justice has to be scrutinised very carefully. The one contained in the 2002 Act is not of the kind which operates independently of the will of either party so as to bind the tribunal regardless. It offers a point which can be but need not be taken. In the present two cases, it was taken. (para 23)

The Court was careful to underline however that this only arises where the tribunal would have had jurisdiction, but for the limitation. A failure to take a point cannot give a Court jurisdiction to decide a point that lies entirely outside its limits. Thus the third appellant, who was attempting to appeal a decision that did not give rise to a right of appeal at all, was unsuccessful.

Thirdly, the Court of Appeal emphasised that, in the case of Mr. Anawr, as he had pleaded his case under article 8 as well as under the immigration rules, there was jurisdiction to hear his appeal in-country in any event on that ground, and that had the tribunal gone on to do so:

'the injustice of the decision that he had been guilty of deception – injustice both in the way it was reached and in the absence of any evidence to support it – [would almost inevitably] have weighed decisively in the scales if and when the proportionality of removal came to be decided.' (para 16)

Other remedies:

Duncan Lewis had conduct of this case from the Court of Appeal stage. It was swiftly realised that, despite apparent injustice, the appeal could fail on the jurisdiction point. We therefore lodged protective proceedings in the Administrative Court. Sedley LJ commented:

In the judicial review proceedings brought by Ms Pengeyo ... a challenge was made to the decision of the Home Secretary to use the deception route, enabling her effectively to stifle any appeal, rather than the variation route carrying a right of in-country appeal. Judge Thornton QC, rightly in my judgment, granted permission to argue this. Had it been sought, permission would also have properly been granted to argue that the election of the Home Office, having used the deception route, to take the out-of-country point in order to stifle an appeal was a serious abuse of power. Once it is established that the point is good only when taken, to take it in order to prevent the exposure of a shameful decision – the effective criminalising and enforced removal of an innocent person without either worthwhile evidence or the opportunity to answer – is without doubt justiciable by way of judicial review. (para 24)

There will be many applicants and representatives heartened by this resounding support for these challenges as not all unfair decisions are appealable. This is all the more serious given the quality of decision making by the UKBA – as specifically underlined by the Court of Appeal:

'... it is right to flag up a concern which all the members of the court share that, on the evidence before us, the powers of one of the great offices of state appear to have been so misused as to rob the successive administrative decisions of legal authority. We wish this to be brought to the Home Secretary's attention.' (para 25)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.