Revocation Appeals Must Be Framed by the Original Protection Claim; Tribunals May Raise Jurisdictional Points But Should Invite Submissions — Commentary on SA v Secretary of State for the Home Department [2025] EWCA Civ 357

Introduction

This Court of Appeal decision resolves two important questions in asylum and humanitarian protection appeals:

• Substantively, the court clarifies how section 84(3)(b) of the Nationality, Immigration and Asylum Act 2002 (NIAA) operates in a revocation appeal brought under section 82(1)(c): when a tribunal considers the humanitarian protection ground in such an appeal, it must assess whether the decision to revoke breaches the United Kingdom’s obligations in relation to persons eligible for humanitarian protection by reference to the country of origin and factual matrix of the original protection claim. A tribunal lacks jurisdiction to allow a revocation appeal on the basis of humanitarian protection by reference to a different country or risk which the appellant has never asserted.
• Procedurally, the court confirms that the Upper Tribunal (UT) was entitled—indeed obliged—to raise a fundamental jurisdictional error of its own motion. However, procedural fairness will rarely be satisfied if the UT decides the appeal on an unheralded point without first inviting submissions. In this case the defect was cured on appeal, so no remittal was necessary.

The appellant (“SA”), an anonymised protected party due to significant mental health issues and lack of capacity, originally obtained refugee status in 2009 on the footing that she was Saudi Arabian and at risk there. The Secretary of State later concluded that SA had deliberately misrepresented her identity and nationality, establishing that she was in fact Yemeni and that her account was fabricated. Refugee status was revoked in 2021 for decisive misrepresentation. The First-tier Tribunal (FtT) dismissed SA’s appeal on the Refugee Convention ground but, notwithstanding SA’s denial of Yemeni nationality, allowed the appeal on humanitarian protection (HP) under section 84(3)(b) by reference to risks in Yemen. On the Secretary of State’s appeal, the UT held that the FtT had erred in law: the assessment under s 84(3)(b) in a revocation appeal must be anchored in the original claim (here, Saudi Arabia), and the FtT could not lawfully allow the appeal by reference to Yemen. The UT, however, had not aired this determinative jurisdictional point with the parties before deciding the appeal.

The Court of Appeal (Lady Justice Andrews, with Lord Justice Phillips and Lord Justice Arnold agreeing) dismissed SA’s appeal. It endorsed the UT’s substantive approach, held that the UT should have invited submissions on the jurisdictional point, but concluded that any procedural unfairness was cured because the point was fully argued in the Court of Appeal and no further fact-finding was required.

Summary of the Judgment

• The “target” of a section 82(1)(c) revocation appeal is the decision to revoke an existing protection status. The grounds in section 84(3) ask whether that decision breaches the UK’s Refugee Convention or humanitarian protection obligations. Removal is not the focus in such an appeal; nor does Article 3 ECHR arise as a ground in section 84(3) (paragraphs 6, 28–30, 47–49).
• An appellant may, as a matter of statutory construction, rely on one or both of the grounds in section 84(3) (refugee and/or humanitarian protection), regardless of which form of status was held (UT reasoning endorsed, paragraph 27). But the humanitarian protection assessment in a revocation appeal must be framed by the original protection claim and country of origin as advanced to the Secretary of State. The FtT had no jurisdiction to allow the appeal by reference to Yemen where SA had never asserted Yemeni nationality or risk on return to Yemen (paragraphs 28–32, 47–49).
• The UT was entitled, and indeed obliged, to identify and determine a fundamental jurisdictional error of its own motion (Virk principle). Nonetheless, it should have put the point to the parties and invited submissions; proceeding without doing so will “rarely” be appropriate. Here the unfairness was cured on appeal because the Court of Appeal heard full argument and no further fact-finding was necessary (paragraphs 1–3, 41–45, 50–58, 59–60).
• Concessions irrelevant to the statutory question cannot confer jurisdiction; the FtT erred in relying on a presenting officer’s Article 3 concession about removal to Yemen in a revocation appeal (paragraph 30, 49).

Analysis

1) Statutory Framework and Structure

Part 5 NIAA delineates separate appellate pathways:

• Section 82(1)(a) refusal of protection claim and section 82(1)(b) refusal of human rights claim engage grounds aimed at whether removal would breach the UK’s obligations (section 84(1) and, where applicable, HRA section 6).
• Section 82(1)(c) revocation of protection status engages section 84(3), the grounds being directed to whether the decision to revoke breaches the UK’s obligations in relation to refugee status or humanitarian protection.

The Immigration Rules supply crucial definitions and mechanics:

• “Protection status” includes refugee or humanitarian protection leave (NIAA s 82(2)(c)).
• Humanitarian protection is “status granted under paragraph 339C and not revoked under 339G–339H” (Rules, para 6).
• Paragraph 339C sets the HP test by reference to the “country of origin” (defined in para 352G) and a “real risk of serious harm”.
• Revocation of refugee status or HP is mandatory where decisive misrepresentation is established (paras 339AB and 339GD), and upon revocation any leave “may be curtailed or cancelled” (para 339H).

This architecture underscores the Court’s core holding: a revocation appeal is not a vehicle to construct a new or alternative HP case detached from the original claim; it tests whether the revocation decision is compliant with the UK’s relevant international obligations, assessed against the original claim’s factual substrate.

2) Precedents Cited and Their Influence

• QD (Iraq) v SSHD [2009] EWCA Civ 620; [2011] 1 WLR 689
  • Explained the historical relationship between asylum and humanitarian protection: HP operates as a genuine alternative where a claimant does not meet the Refugee Convention criteria but faces serious harm (paragraph 9). The Court of Appeal relies on this schema to emphasise that HP is embedded in the facts of a protection claim evaluated through the Immigration Rules.
• Essa (Revocation of protection status appeals) [2018] UKUT 244 (IAC)
  • Relied upon by the Secretary of State below for the argument that revocation appeals should be confined to the refugee ground; distinguished by the UT and effectively accepted by the Court because Essa involved a refugee who was not and could not be eligible for HP (paragraph 27). The statute permits appellants to rely on one or both grounds in s 84(3), but within the jurisdictional confines identified in SA.
• R v SSHD, ex p Robinson [1998] QB 929, and Gurung v SSHD [2002] UK IAT 04870
  • Authorities on tribunals identifying “Robinson obvious” points to ensure compliance with international obligations. The Court notes the principle’s public law justification but treats SA as closer to a jurisdictional case like Virk (paragraphs 44–46).
• Virk v SSHD [2013] EWCA Civ 652
  • Decisive. Confirms a tribunal’s entitlement to take jurisdictional points of its own motion and that the UT must determine whether the FtT had jurisdiction. The Court accepts the Secretary of State’s concession that fairness required giving the parties an opportunity to address the point, but re-made the decision on appeal (paragraphs 41–43, applied at 44–45, 55–59).
• Bulale v SSHD [2008] EWCA Civ 806; A (Iraq) v SSHD [2005] EWCA Civ 1438; AZ (Iran) [2018] UKUT 245 (IAC)
  • These cases explore the scope of the Robinson doctrine and whether it can operate in favour of the Secretary of State. The Court acknowledges Bulale’s broader foundation—that appellate bodies must ensure state compliance with international obligations—and indicates that the principle is not as narrowly confined (when invoked by the Secretary of State) as suggested in AZ (Iran) (paragraphs 36–38, 45–46).
• Bilali v Bundesamt für Fremdenwesen und Asyl [2019] 4 WLR 39 (CJEU)
  • Persuasive authority that where status was granted on the basis of decisive misrepresentation, revocation is mandatory to avoid non-compliance with EU-derived obligations. Cited to reinforce the necessity of revocation where criteria are not met (paragraph 38).
• Doody [1994] 1 AC 531; R v Chief Constable of Thames Valley Police, ex p Cotton [1990] IRLR 344; Pathan [2020] UKSC 41
  • These cases articulate the flexible but weighty demands of procedural fairness and caution against “pointlessness” arguments that a hearing would have made no difference. The Court draws on these to hold that fairness generally requires hearing parties on a decisive point taken of the tribunal’s own motion, even if the outcome appears inevitable—though here the error was cured on appeal (paragraphs 50–58).
• MM (Unfairness, E&R) Sudan [2014] UKUT 105 (IAC); AM (fair hearing) Sudan [2015] UKUT 656 (IAC)
  • UT Presidential guidance that unfairness ordinarily requires remittal where fact-finding is tainted. Distinguished: SA turns on a discrete point of law; fact-findings stand (paragraphs 33–34, 54–55).

3) The Court’s Legal Reasoning

• Distinct appellate pathways. Appeals against refusal of protection claims test future removal risks (section 84(1)), whereas revocation appeals test the lawfulness of the revocation decision against the UK’s obligations (section 84(3)). The court expressly rejects conflating the two (paragraphs 6, 28, 47–49).
• Scope of section 84(3)(b) in revocation appeals. Although an appellant may deploy either or both grounds in section 84(3), humanitarian protection in this context is not a free-standing alternative removal-based claim. It must be evaluated by reference to the original protection application’s asserted country of origin and facts, because the question is whether revoking the originally granted status breaches the UK’s HP obligations in light of that original claim (paragraphs 27–32, 47–49).
• Mandatory revocation upon decisive misrepresentation. The FtT’s findings that SA fabricated her identity and account meant the criteria for status were never met. Following the Rules (paras 339AB/339GD) and Bilali, revocation is the required consequence (paragraphs 18–19, 47–49).
• Jurisdictional limits and concessions. The FtT exceeded its jurisdiction by allowing the appeal on a Yemen-based HP theory that SA had never advanced. The presenting officer’s Article 3 concession on removal to Yemen was irrelevant and could not create jurisdiction (paragraphs 28–32, 49).
• Procedural fairness and ex mero motu points. The UT was right to take the jurisdictional point (Virk), but fairness generally requires inviting submissions on a decisive issue not raised by the parties. The failure in this case was cured by the Court of Appeal hearing full argument, so no remittal was necessary (paragraphs 41–45, 50–60).

4) Impact and Practical Implications

• For tribunals:
  • Revocation appeals under section 82(1)(c) must be confined to whether the decision to revoke breaches obligations, assessed against the original claim. The FtT cannot convert such an appeal into a de facto fresh humanitarian protection assessment based on a different country or risk never asserted by the appellant.
  • Concessions unrelated to the statutory question (e.g., Article 3 removal risks in a revocation appeal) are irrelevant and cannot create jurisdiction.
  • When the UT identifies a decisive jurisdictional or “Robinson-type” point not argued, it should almost always canvas the issue with the parties—typically via short written submissions—before deciding.
• For appellants and representatives:
  • If a person whose refugee status is revoked wishes to rely on humanitarian protection based on a different country of origin or different risks than those put to the Secretary of State in the original claim, they must raise that case with the Secretary of State through the proper procedural route (e.g., further representations/fresh protection claim) rather than seeking to expand the scope of the revocation appeal.
  • Practitioners should avoid advancing positions that are inconsistent with the appellant’s pleaded identity; tribunals will not build HP findings on facts the appellant disputes.
• For the Secretary of State:
  • Where decisive misrepresentation is established, revocation is mandatory; paragraph 339H then permits the curtailment or cancellation of any associated leave. Operationally, attempting to administer a grant of humanitarian protection in respect of risks in a country the appellant denies being from is untenable (paragraph 39).
  • When inviting submissions post-revocation about HP or other leave, explicit guidance should be given that any new protection basis must be articulated and substantiated under the Rules.
• Doctrinal development:
  • This decision supplies Court of Appeal authority on how section 84(3)(b) operates in revocation appeals, anchoring the humanitarian protection ground to the original claim’s country of origin and facts.
  • It refines the relationship between Virk and Robinson: tribunals may and should take jurisdictional points of their own motion, but fairness demands that parties are heard, save in rare circumstances—and any lapse may be cured if the appellate process affords a full opportunity to be heard without further fact-finding.

Complex Concepts Simplified

• Revocation appeal vs refusal appeal:
  • A refusal appeal (section 82(1)(a)) asks: Would removing me now breach the UK’s obligations?
  • A revocation appeal (section 82(1)(c)) asks: Does taking away my previously granted status breach the UK’s obligations?
• Humanitarian protection (HP):
  • A form of international protection under the Immigration Rules for people facing a real risk of “serious harm” if returned to their country of origin, who do not meet the Refugee Convention definition of “refugee.” It is assessed by reference to the “country of origin” in the claim.
• Decisive misrepresentation:
  • If a person obtained status by dishonesty or omission that was decisive to the grant, the Rules mandate revocation of that status.
• “Robinson obviousness”:
  • A principle allowing tribunals to consider important legal points not raised by the parties to ensure compliance with international obligations, especially where the point is strongly arguable. SA reminds that jurisdictional points fall squarely within a tribunal’s duty to act, but fairness normally requires inviting submissions.
• Jurisdictional error:
  • Where a tribunal acts outside the limits of its statutory task—here, allowing a revocation appeal on HP grounds by reference to a different country and case the appellant never advanced.
• Procedural fairness:
  • The obligation to act fairly, including by giving parties a proper chance to address decisive issues. Lack of notice may be cured on appeal if the appellate court can fully hear the point without new fact-finding.

Conclusion

SA v Secretary of State for the Home Department sets two significant markers in protection law and appellate practice. First, it clarifies that in a section 82(1)(c) revocation appeal, the humanitarian protection ground in section 84(3)(b) is not a gateway to craft a new, removal-focused HP claim based on a different country or risk profile. The tribunal’s inquiry is confined to whether the revocation decision breaches obligations in light of the original protection claim and its asserted country of origin. Second, the judgment affirms that while the Upper Tribunal may, and must, raise jurisdictional points of its own motion, procedural fairness will usually require it to give parties an opportunity to make submissions before deciding such points. Here, the procedural defect was cured on appeal, and the Court re-made the decision, confirming that the FtT lacked jurisdiction to allow the appeal on HP grounds based on Yemen and that the UT was substantively correct to dismiss the appeal.

The practical message is clear: if an appellant wishes to assert humanitarian protection on a different factual basis from the original claim (for example, a different country of origin), they must take the proper procedural route—making representations or a fresh protection claim to the Secretary of State—rather than attempting to repurpose a revocation appeal. Tribunals should vigilantly police these jurisdictional boundaries while upholding procedural fairness by hearing parties on points taken of the tribunal’s own motion.