We recently examined, in Parts One, Two, Three and Four of our Practical Guide to Immigration Appeals, how and on what basis an immigration appeal can be pursued. We have examined both legal and practical considerations for an appeal.
The factors and considerations we have set out and examined cannot be considered an exhaustive list. The approach to an appeal will depend on the individual facts and circumstances.
What if an immigration appeal is dismissed by the First-tier Immigration Tribunal? Where does this leave you and what can you do? We examine this in this article. You may need to seek specialist legal advice as to the process, relevant time limits and legal arguments to be advanced.
Error of Law in Immigration Appeals
If your immigration appeal is dismissed by the First-tier Tribunal, it may be possible to appeal onwards to the Immigration and Asylum Chamber of the Upper Tribunal. The Upper Tribunal also deals with immigration judicial review applications.
Unlike appeals to the First-tier Tribunal where, in most cases (see paragraph 69 of Begum v Home Secretary  UKSC 7), the Secretary of State's decisions are considered on their merits by the Tribunal, the Upper Tribunal is called to consider whether the decision of the First-tier Tribunal is erroneous in law and, provided the error is material, should be set aside.
In R (Iran) & Ors v Secretary of State for the Home Department  EWCA Civ 982, the Court of Appeal gave examples of the most commonly encountered errors of law (albeit not an exhaustive list):
- Making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters");
- Failing to give reasons or any adequate reasons for findings on material matters;
- Failing to take into account and/or resolve conflicts of fact or opinion on material matters;
- Giving weight to immaterial matters;
- Making a material misdirection of law on any material matter;
- Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;
- Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.
Errors in factual findings would not normally amount to errors of law, unless they have reached the threshold of irrationality (in the Wednesbury sense, i.e. the finding was not open to the Tribunal on the evidence/was wholly unsupported by the evidence, provided it was a finding as to a material issue). Mere disagreement with the fact-finding is not a ground on which to set aside a decision and the assessment of weight to be given to evidence is a matter for the court or tribunal of first instance. The submission of further evidence following a hearing to contradict a finding, even if admissible, cannot usually be said to be an error of law, unless the evidence is submitted to demonstrate unfairness, a mistake of fact or concerns questions of a jurisdictional act.
Where there is no reasonable prospect that any error of law alleged in the grounds of appeal could have made a difference to the outcome, permission to appeal should not normally be granted in the absence of some point of public importance that it is otherwise in the public interest to determine. Permission should only be refused, where there is arguably an error of law, only if it is a plain case that the error could have made no difference to the outcome.
Seeking Permission to Appeal
Permission ought to be sought and granted in order to appeal to the Upper Tribunal from a decision of the First-tier Tribunal. The decision whether to grant permission to appeal involves the question whether the challenged decision arguably involved an error of law. At the permission stage, the question is not whether the error is made out; only whether it is arguable. Relevant guidance was issued in the Immigration and Asylum Chamber of the Upper Tribunal in 2019: JOINT PRESIDENTIAL GUIDANCE 2019 No 1: Permission to appeal to UTIAC.
Initially, an application ought to be made to the First-tier Tribunal for permission to appeal to the Upper Tribunal. In the event that permission is granted, the appeal will be transferred to the Upper Tribunal.
Unless the appellant is outside the UK, an application ought to be made in writing so that it is received by the Tribunal within 14 days after the date the written reasons for the decision on appeal were sent. If the appellant is outside the UK, that deadline is no later than 28 days.
When it receives an application for permission to appeal to the Upper Tribunal, the First-tier Tribunal is required first to consider whether to review the decision. A Tribunal judge who is minded to grant permission to appeal on the basis of a seemingly obvious error of law should consider whether, instead, to review the decision under appeal. A review may be undertaken only where the judge is satisfied that there was an error of law in the decision being challenged (unlike whether it is just arguable, which would give rise to a grant of permission to appeal to the Upper Tribunal).
If the First-tier Tribunal refuses permission, refuses to admit the application or grants permission only on limited grounds, an application can be renewed directly to the Upper Tribunal. The time limits for asylum and immigration cases are 14 days after the date on which the First-tier Tribunal's notice of refusal of permission was sent to the appellant, if they are in the UK, and one month, if they are not.
The above are calendar days, but if the relevant time limit ends on a day that is not a working day, the application is made in time if it is made (and received) on the next working day. In the First-tier Tribunal, that is by midnight of the last day, and in the Upper Tribunal by 5pm on that day.
If permission is granted on limited grounds, this must be clearly and unambiguously stated in the operative section of the decision, which states whether permission is granted or not; not in the reasons for reaching the decision. Only very exceptionally will the Upper Tribunal consider that permission was granted on limited grounds, when permission is granted without express limitation on the face of the decision, regardless of what might be said in the reasons for decision section of the notice.
There is no fee applicable for the applications or the appeal to the Upper Tribunal.
If the decision contains a clerical mistake, or other accidental slip or omission, "most obviously a straightforward slip of the pen", this can be corrected by the First-tier Tribunal under the "slip rule". The error can and should be corrected even if it alters completely the outcome of the decision as initially expressed, if that outcome is clearly at odds with the intention of the judge. An application can be made accordingly.
This was confirmed in Secretary of State for the Home Department v Devani  EWCA Civ 61 and MH (review; slip rule; church witnesses) Iran  UKUT 00125 (IAC), overruling Katsonga v Secretary Of State For The Home Department ("Slip Rule" : FtT's general powers : Zimbabwe)  UKUT 228 (IAC).
Cart Judicial Review
The refusal of permission to appeal to the Upper Tribunal, following an application to the Upper Tribunal, is an "excluded decision". As such, there is no right of appeal against it to the Court of Appeal. Currently, it is possible to seek judicial review of that decision in the Administrative Court; this is known as a "Cart" Judicial Review, named after the Supreme Court judgment that introduced it: Cart v The Upper Tribunal (Rev 1)  UKSC 28. In Scotland, the relevant case is Eba v Advocate General for Scotland (Scotland)  UKSC 29. This has a much shorter timeframe than other judicial reviews: the claim form and supporting documents must be filed no later than
16 days after the date on which notice of the Upper Tribunal's decision was sent.
The court will give permission to proceed only if it considers that there is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First Tier Tribunal against which permission to appeal was sought are wrong in law; and that either the claim raises an important point of principle or practice, or there is some other compelling reason to hear it.
The Judicial Review and Courts Bill, published on 21 July 2021, contains a clause which would insert a new provision in the Tribunals, Courts and Enforcement Act 2007, with the effect of excluding Cart Judicial Reviews after its coming into force, other than in very limited circumstances: where the questions raised involve whether the application to the Upper Tribunal for permission to appeal was invalid; whether the Upper Tribunal was properly constituted; or whether it acted in bad faith or in fundamental breach of the principles of natural justice. This reform was based on a proposal, itself based on a flawed premise. This has been addressed in an earlier post.
Once Permission to Appeal has been Granted
If permission to appeal to the Upper Tribunal is granted, the case will normally be listed for an error of law hearing. The Upper Tribunal will send Directions which will need to be complied with.
After the hearing, a decision on whether the First-tier Tribunal's decision was vitiated by a material error of law will be made either pronounced orally or reserved. A written decision with reasons will follow in any event.
If the Upper Tribunal decides that there was a material error of law, it may set aside the First-tier Tribunal's decision. The Upper Tribunal may decide to allow or dismiss the appeal outright, without the need for a further hearing, if it is possible to do so. Otherwise, if it is required to consider new evidence or legal arguments, the Upper Tribunal may decide to list the case for a resumed hearing, following which it will remake the First-tier Tribunal's decision itself. Factual findings of the First-tier Tribunal, unless tainted by any error of law, may be preserved; the Upper Tribunal will decide this at the error of law hearing. Alternatively, the appeal may be remitted to the First-tier Tribunal for a re-hearing. This may be a complete re-hearing of the original appeal; however, the Upper Tribunal has power to give directions which limit the scope of reconsideration.
Court of Appeal
If no error of law is found or the appeal is dismissed by the Upper Tribunal it may be possible to appeal onwards to the Court of Appeal. An application should first be made to the Upper Tribunal. If that is refused, an application can be renewed directly to the Court of Appeal.
You will need to consider the second appeals test in s.13(6) of the Tribunals, Courts and Enforcement Act 2007 and whether it applies. We examined this in an earlier article.
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.