Abiyat and others (rights of appeal) Iran

Factual and Procedural Background

This opinion concerns four appellants who each claimed asylum after arriving in the United Kingdom between 2002 and 2004. Each appellant's asylum claim was refused, and their appeals were unsuccessful. After exhausting their appeal rights, the appellants made further submissions to the Secretary of State, which went unanswered. Subsequently, each appellant received a letter from the respondent granting them indefinite leave to remain in the UK exceptionally, outside the Immigration Rules, based on their connections and length of residence. The letters also stated that unless the appellants contacted the respondent within 14 days, their outstanding Fresh Asylum Claims would be assumed withdrawn. The appellants did not wish to withdraw these claims and claimed entitlement to remain as refugees under the Immigration Rules.

The appellants gave notice of appeal to the First-tier Tribunal, which convened a hearing. The Tribunal determined that there were no valid appeals before it and dismissed the purported appeals, taking no further action. The appellants were granted permission to appeal this determination to the Upper Tribunal, which is the subject of this opinion.

Legal Issues Presented

1. Whether the appellants have a statutory right of appeal against the respondent's most recent decisions.
2. Whether there is a right of appeal to the Upper Tribunal against the First-tier Tribunal's decision declining jurisdiction on the basis that there is no statutory right of appeal.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78	Establishes that a decision by the Tribunal declining jurisdiction after consideration is not procedural or preliminary and is therefore subject to appeal.	The court applied this binding precedent to conclude that the First-tier Tribunal's determination declining jurisdiction was not procedural or preliminary and thus subject to appeal to the Upper Tribunal.
R (S and others) v First-tier Tribunal (IAC) and Secretary of State for the Home Department [2011] EWHC 627 (Admin)	Held that appellants had a right of appeal under section 83 of the Nationality, Immigration and Asylum Act 2002 and that the First-tier Tribunal was wrong to refuse to entertain such appeals.	The court adopted the reasoning of Beatson J from this case to support the conclusion that the appellants had a statutory right of appeal under section 83.

Court's Reasoning and Analysis

The court first addressed whether there was a right of appeal to the Upper Tribunal against the First-tier Tribunal’s decision declining jurisdiction. It analyzed the statutory framework under the Tribunals, Courts and Enforcement Act 2007, particularly section 11, and the Appeals (Excluded Decisions) Order 2009. The court noted that procedural, ancillary, or preliminary decisions are excluded from appeal, but distinguished the First-tier Tribunal’s decision as a determination made after full consideration, not merely procedural or preliminary.

The court relied heavily on the Court of Appeal’s decision in JH (Zimbabwe), which established that a decision made after consideration that the Tribunal lacks jurisdiction is not procedural or preliminary and is therefore appealable. The court reasoned that a decision declining jurisdiction after consideration is not excluded from appeal rights and that this interpretation aligns with statutory intent and policy.

Regarding the substantive right of appeal under section 83 of the Nationality, Immigration and Asylum Act 2002, the court found that the appellants had a right of appeal triggered by the grant of leave to remain exceeding one year, including indefinite leave. The court noted that the appellants had not received required notices of their appeal rights under the Immigration (Notices) Regulations 2003 but had nonetheless issued notices of appeal, thereby validating their appeals awaiting determination.

Holding and Implications

The court held that there is a statutory right of appeal to the Upper Tribunal against a First-tier Tribunal determination declining jurisdiction after full consideration.

It further held that each appellant had a statutory right of appeal under section 83 of the Nationality, Immigration and Asylum Act 2002.

The direct effect of this decision is that the appeals brought by the appellants against the First-tier Tribunal’s determination are valid and properly before the Upper Tribunal for consideration. The opinion does not establish new precedent beyond confirming the application of existing principles to the present context.