Factual and Procedural Background
This appeal concerns a determination by the Upper Tribunal (Immigration and Asylum Chamber) ("UT") dismissing the appellants' appeal against the earlier dismissal by the First-tier Tribunal ("FTT") of their appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") against the refusal by the Secretary of State to vary their leave to remain in the United Kingdom.
The Appellant, an Indian national, entered the United Kingdom as a student with leave to remain subject to conditions including working no more than 20 hours per week during term time and no recourse to public funds. She breached these conditions by transferring between educational sponsors without notifying the Secretary of State and by submitting documents from a revoked sponsor licence, which were treated as false documents. Additionally, she claimed child benefit for her child, constituting a further breach.
As a result, the Secretary of State refused her application for leave to remain as a Tier 4 (General) student migrant, as well as the applications of her dependent husband and child, citing breaches under paragraphs 322 (1A), (3), and (7) of the Immigration Rules and failure to score points under Appendix C. The application was made after the expiry of her previous leave.
The Appellant lodged an appeal to the FTT challenging the facts and alleging breach of Article 8 rights. The FTT dismissed the appeal, concluding the refusal was proper due to dishonesty and breach of conditions. The Appellant obtained permission to appeal to the UT on grounds including the discretionary nature of refusals under the Immigration Rules and the welfare of her child under section 55 of the Borders, Citizenship and Immigration Act 2009.
The Secretary of State did not oppose the appeal and invited a fresh hearing. However, the UT dismissed the appeal without an oral hearing on the basis that the application was made after expiry of leave, meaning no right of appeal existed and the FTT lacked jurisdiction. Permission to appeal was granted on issues of jurisdiction and procedural fairness.
Legal Issues Presented
- Whether the FTT had jurisdiction to entertain an appeal against refusal of leave to remain when the application was made after expiry of existing leave.
- Whether the UT had jurisdiction to decide an appeal on a point of law not raised or determined by the FTT.
- Whether dismissing the appeal without an oral hearing was procedurally fair and compatible with natural justice.
Arguments of the Parties
Appellant's Arguments
- The statutory bar in section 82(2)(d) of the 2002 Act, which precludes appeal rights where an application for leave is made after expiry of leave, cannot operate independently of the parties if the Secretary of State fails to raise the jurisdiction point in the FTT.
- Relied on the distinction between constitutive and adjudicative jurisdiction as explained by Sedley LJ in Carter v Ahsan and the Court of Appeal decision in Anwar v Secretary of State for the Home Department, arguing that the FTT had adjudicative jurisdiction until the jurisdiction point was taken and decided against the Appellant.
- Contended that the UT lacked jurisdiction to decide points of law not raised or decided in the FTT, as such points do not arise from the FTT decision.
Respondent's Arguments
- Accepted that dismissing the appeal without an oral hearing was procedurally unfair given prior directions indicating the appeals would be allowed.
- Accepted that the UT should not have relied on the jurisdiction point without giving the Appellants opportunity to make submissions.
- Contended that jurisdictional issues necessarily arise from the decision of the lower tribunal and may be taken by either the FTT or UT even if not raised by parties.
- Relied on statutory framework under the Tribunals, Courts and Enforcement Act 2007, which confers jurisdiction to determine points of law including jurisdictional questions.
- Argued that the FTT and UT, as statutory bodies, cannot have their jurisdiction conferred or waived by parties’ conduct or failure to raise points.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Carter v Ahsan [2005] ICR 1817 |
Distinction between constitutive and adjudicative jurisdiction of tribunals. |
Supported the argument that adjudicative jurisdiction depends on facts such as timing of application; tribunal has power to hear appeal until jurisdictional facts are resolved. |
| Anwar v Secretary of State for the Home Department [2011] 1 WLR 2552 |
FTT’s adjudicative jurisdiction to entertain appeals pending resolution of jurisdictional facts. |
Confirmed FTT had adjudicative jurisdiction to decide appeal until jurisdictional issue resolved; tribunal entitled to take jurisdictional points. |
| SA (Pakistan) v Secretary of State for the Home Department [2010] EWCA Civ 210 |
Limits on appellate court’s jurisdiction to hear points of law not arising from tribunal decisions. |
Clarified that points of law must arise from tribunal decision; appeals cannot extend beyond legal merits of original immigration decision. |
| RS (Nepal) v Secretary of State for the Home Department [2011] EWCA Civ 1320 |
Interpretation of statutory jurisdiction under s.13 of the Tribunals, Courts and Enforcement Act 2007. |
Reaffirmed that appeals must be on points of law arising from tribunal decisions; jurisdictional points must be raised within the tribunal framework. |
| Nirula v First-Tier Tribunal [2012] EWCA Civ 1436 |
Tribunal’s power to take jurisdictional points of its own motion. |
Held that tribunals may raise and decide jurisdictional issues even if not raised by parties; failure to consider jurisdiction does not confer jurisdiction. |
| Sapkota [2011] EWCA Civ 1320 |
Requirement for fresh, comprehensive decision when original decision not in accordance with law. |
Indicated appeals may require allowance where original decision was unlawful; relevant to procedural fairness and scope of appeals. |
| Bulale v SSHD [2008] EWCA Civ 806 |
Scope of points of law on appeal after tribunal reconsideration. |
Noted that points of law on appeal generally arise from tribunal decisions; appeals cannot extend beyond immigration decision’s legal merits. |
| Mirza [2011] EWCA Civ 139 |
Judicial review principles related to immigration decisions and jurisdiction. |
Referenced regarding lawful decision-making and jurisdictional limits in immigration appeals. |
Court's Reasoning and Analysis
The Court analysed the statutory framework governing appeals against immigration decisions, focusing on section 82 of the 2002 Act and sections 11 and 13 of the Tribunals, Courts and Enforcement Act 2007. It confirmed that where an application for leave to remain is made after expiry of existing leave, the refusal is not an immigration decision within the meaning of section 82(2), removing the right of appeal and the FTT’s jurisdiction to entertain the appeal except to dismiss it.
However, the Court emphasised that jurisdictional points may be raised and determined by either the FTT or the UT, even if not raised by the parties. The statutory jurisdiction of these tribunals cannot be conferred or waived by the parties’ conduct or failure to raise such points. The Court relied on authorities establishing the distinction between constitutive and adjudicative jurisdiction, concluding that the FTT’s adjudicative jurisdiction depends on facts such as timing of application, but the question of jurisdiction itself necessarily arises from the tribunal’s decision.
The Court also held that the UT had jurisdiction to decide the appeal on the jurisdictional point, despite it not having been raised in the FTT, as jurisdictional issues are integral to the tribunal’s power to hear the appeal. The Court rejected the Appellant’s submission that the UT lacked jurisdiction to consider points not raised below, distinguishing this case from authorities where the appeals concerned different or broader legal points unrelated to the original immigration decision.
Finally, the Court found that the UT acted unfairly by dismissing the appeal without an oral hearing after indicating the appeals might be allowed, but this procedural unfairness did not affect the correctness of the jurisdictional conclusion. The Court exercised its power to set aside the UT’s decision on procedural grounds but re-made the decision to dismiss the appeals on jurisdictional grounds.
Holding and Implications
The Court allowed the appeal in part by setting aside the Upper Tribunal’s decision on the basis of procedural unfairness but remade the decision to dismiss the appeals on the ground that the First-tier Tribunal lacked jurisdiction to hear the appeals because the applications for leave to remain were made after expiry of existing leave.
The direct effect is that the appellants’ appeals fail and the refusal of leave to remain is upheld. No new precedent was established beyond clarification of the jurisdictional principles applicable to immigration appeals where applications are made out of time. The decision confirms the strict statutory limits on appeal rights and underscores the tribunals’ authority to raise and decide jurisdictional issues even if parties do not.