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VOM (Error of law - when appealable : Nigeria)
Factual and Procedural Background
This case concerns an appeal by the Appellant, a national of Nigeria, against the Secretary of State for the Home Department's refusal to revoke a deportation order dated 26 September 2013. The First-tier Tribunal (FtT) initially dismissed the appeal under the Immigration Rules but allowed it under Article 8 of the European Convention on Human Rights (ECHR). The Appellant's application for permission to appeal to the Upper Tribunal (UT) was refused by the FtT, while the Secretary of State's application for permission was initially overlooked. Subsequently, the UT granted permission to both parties to appeal, although this decision was partly set aside for irregularity. The UT then allowed the Secretary of State permission to appeal on arguable error of law concerning the Article 8 ECHR decision. On 12 January 2016, the combined appeals were listed before the UT, which on 5 February 2016 found that the FtT made an error of law regarding exceptional circumstances under the Immigration Rules, set aside that part of the FtT decision, but upheld the FtT's findings on Article 3 ECHR. The UT made case management directions and provisionally relisted the appeal for hearing to remake the FtT decision. The Appellant then sought permission to appeal to the Court of Appeal against the UT decision on both Articles 8 and 3 ECHR grounds.
Legal Issues Presented
- Whether a party to appeal proceedings in the Upper Tribunal has a right to apply for permission to appeal to the Court of Appeal against an intermediate UT determination that (a) finds an error of law in the decision of the First-tier Tribunal and (b) sets aside that decision accordingly.
- Whether there is a right to apply for permission to appeal to the Court of Appeal against any act or determination of the UT that is not finally dispositive of the appeal before it.
- The interpretation and application of Sections 12 and 13 of the Tribunals, Courts and Enforcement Act 2007 (the "2007 Act") in relation to appeal rights from the UT to the Court of Appeal.
- Whether the UT decision under challenge constitutes an "excluded decision" under Article 3(m) of the Appeals (Excluded Decisions) Order 2009, thus precluding appeal.
Arguments of the Parties
Appellant's Arguments
- The phrase "a decision made by the Upper Tribunal" in Section 13(1) of the 2007 Act includes intermediate decisions under Section 12(1) and (2), such as findings of error of law and setting aside FtT decisions.
- The statutory language is broad and unqualified, supporting this construction.
- The restrictive nature of the "second appeal" test supports allowing appeals at this intermediate stage.
- The UT decision in question is not an "excluded decision" under Article 3(m) of the 2009 Order.
- Rejecting this construction would violate the Appellant's right of access to a court.
Respondent's Arguments
- The Appellant's construction of Sections 12 and 13 would produce an unsatisfactory and unworkable result contrary to Parliament's intention.
- The statutory regime contemplates a single, indivisible appeal to the Court of Appeal only after the UT has completed the appeal process.
- This approach reflects a sensible, coherent, and workable appeal model consistent with parliamentary intent.
- Alternatively, even if the UT decision were a "decision," it would be an "excluded decision" under Article 3(m) of the 2009 Order, precluding appeal.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Evans v Bartlam [1937] AC 473 | Appellate jurisdiction is always statutory; no appeal lies without statutory authority. | Supported the principle that appeal rights must be expressly created by statute. |
| Re D (A Child) [2016] UKSC 34 | Construction of statutory provisions regarding appeal rights and jurisdiction. | Illustrated the statutory basis for appellate jurisdiction relevant to the case. |
| R v Z [2005] UKHL 35 | Statutory interpretation must address the particular problem or mischief the statute intends to remedy. | Guided the court's approach to interpreting Sections 12 and 13 of the 2007 Act. |
| R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687 | Statutory interpretation aims to give effect to Parliament's purpose, considering context and history. | Used to frame the interpretive exercise of the statutory provisions. |
| Brown v Dean [1910] AC 373 | Recognition of the public interest in finality of litigation (interest rei publicae ut sit finis litium). | Supported the importance of finality in appeal rights and limiting interlocutory appeals. |
| R v Pinfold [1988] QB 462 | Finality of legal proceedings is in the public interest and should be reflected in statutory interpretation. | Reinforced the court's approach to restricting appeals to final decisions. |
| Hewitson v Hewitson [1995] 1 ALL ER 472 | Application of finality principle in matrimonial proceedings. | Provided analogous support for limiting appeals to final decisions. |
| R v Director of Public Prosecutions, ex Parte Kebeline [2000] 2 AC 326 | Resistance to satellite litigation and premature challenges to incomplete proceedings. | Supported the court's rejection of interlocutory appeals to the Court of Appeal. |
| McLuckie v Coroner for Northern Ireland [2011] NICA 34 | Rejection of judicial review challenges to inquest proceedings at incomplete stages. | Illustrated modern judicial resistance to premature challenges in ongoing proceedings. |
| Allen v Allen [1985] Fam 8 | Statutory construction disfavors requiring separate appeals against various decisions in the same proceedings. | Supported the court's view against multiple appeals at intermediate stages. |
Court's Reasoning and Analysis
The court began with the fundamental principle that appeal rights are statutory and cannot be created by courts or tribunals. It emphasized the statutory context of Sections 12 and 13 of the 2007 Act, which establish a staged appeal process from the First-tier Tribunal (FtT) to the Upper Tribunal (UT) and then potentially to the Court of Appeal.
Section 12 requires the UT, upon finding an error of law in the FtT decision, to either remit the case for reconsideration or remake the decision, thus completing the appeal process. The court noted that intermediate steps in this process, such as finding an error of law or setting aside the FtT decision, are procedural and preliminary acts within the ongoing UT appeal, not final "decisions" for the purpose of Section 13. The statutory language deliberately avoids labeling these interim steps as "decisions" to prevent fragmenting the appeal process.
Allowing appeals to the Court of Appeal at this intermediate stage would disrupt the continuity and finality of the UT appeal process mandated by Section 12, leading to inefficiency, delay, and satellite litigation. The court found no imperative or mischief that would justify such interlocutory appeals. It further observed that the Appellant’s right of access to a court is not denied, as the right to appeal to the Court of Appeal arises upon completion of the UT appeal process.
The court also considered the statutory instrument listing "excluded decisions" and concluded that, even if the UT’s intermediate determinations were considered "decisions," they would fall within the exclusion under Article 3(m) of the 2009 Order as procedural, ancillary, or preliminary decisions, thus not appealable to the Court of Appeal.
The court rejected the Appellant’s construction because it would imply that many past appeals to the Court of Appeal were out of time, which is untenable. The court’s interpretation promotes expedition, finality, and coherence in the tribunal appeal system, consistent with the overriding objective of the Tribunal Procedure (Upper Tribunal) Rules 2008 and longstanding legal principles favoring the conclusion of litigation.
Holding and Implications
The court held that no right exists to seek permission to appeal to the Court of Appeal against an intermediate decision of the Upper Tribunal made under Section 12 of the 2007 Act prior to the completion of the UT appeal process.
The court further held that, alternatively, any such intermediate decision would be an excluded decision under Article 3(m) of the Appeals (Excluded Decisions) Order 2009, precluding appeal.
The direct effect of this decision is that the Appellant’s application for permission to appeal to the Court of Appeal at this interlocutory stage is refused. The Appellant retains the right to appeal to the Court of Appeal only after the UT has completed its appeal process and rendered a final, dispositive decision.
No new precedent was set beyond confirming the statutory scheme’s intended appeal structure and reinforcing principles favoring finality and efficiency in tribunal appeals.
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