Sandip Singh v Secretary of State for the Home Department

This appeal concerns the jurisdiction of the Upper Tribunal to consider appeals against decisions of the First-Tier Tribunals to make or not to make a fee award. It is brought against the determination of the Upper Tribunal promulgated on 18 April 2013, to decline to hear such an appeal on the ground it had no jurisdiction to do so. If the appeal fails, the appellant invites the court (sitting as the Divisional Court) to give him permission to apply for judicial review of the First-tier Tribunal’s decision to refuse to make a fee award in his favour. We indicated at the start of the hearing, that the court would hear argument on the application, without deciding any of the issues it raised.

For the reasons that follow I would dismiss the appeal. In summary in my view the Upper Tribunal was right to conclude it had no jurisdiction for the reasons it gave. I have also concluded the judicial review application is not arguable and I would therefore refuse leave.

In order to determine the jurisdiction point, it is necessary to consider the relevant statutory framework. I also refer to the Joint Presidential Guidance issued in relation to fee awards, as it is part of the appellant’s argument before us that in reaching its decision, the Upper Tribunal followed that guidance, and it was wrong to do so. The provisions are set out more fully in an annexe to the judgments with emphasis given to those parts that are particularly relevant to this appeal.

Appeals Section 11 of the in the Tribunals, Courts and Enforcement Act 2007 (‘the 2007 Act’) provides for a right of appeal on a point of law to the Upper Tribunal from the First-tier Tribunal, as set out in that section, and a similar provision, section 13, provides for a right of appeal on a point of law to the relevant appellate court (the Court of Appeal in this jurisdiction) as set out in that section.

Excluded Decisions There is no right of appeal under sections 11 or 13 however against an “excluded decision” (see section 11(1) and 13(1)). The excluded decisions are listed in sections 11(5) and 13(8). Materially for the purposes of this appeal, section 11 (5) (f) provides that an excluded decision includes “any decision of the First-tier Tribunal that is of a description specified in an order made by the Lord Chancellor.”

The Excluded Decisions Order The Lord Chancellor made such an order in the exercise of the power conferred by section 11(5)(f) and 13(8)(f) of the 2007 Act specifying additional decisions which for the purposes of sections 11(1) and 13(1) of the 2007 Act are excluded from a right of appeal from the First-tier Tribunal to the Upper Tribunal, or from the Upper Tribunal to the relevant appellate court as the case may be (the Appeals (Excluded Decisions) Order 2009/275 as amended by the Miscellaneous Provisions Order 2010/41 (‘the Excluded Decisions Order’)).

Included in the list of such excluded decisions in Article 3 of the Excluded Decisions Order are:“(m) any procedural, ancillary or preliminary decision made in relation to an appeal against a decision under section 40A of the British Nationality Act 1981, section 82, 83 or 83A of the Nationality, Immigration and Asylum Act 2002, or regulation 26 of the Immigration (European Economic Area) Regulation 2006.”

The Excluded Decisions Order was laid before Parliament on 12 January 2010. It came into force on 15 January 2010 and two earlier such orders (the Appeals (Excluded Decisions) Order 2008 and the Appeals (Excluded Decisions) (Amendment) Order) were revoked.

Fees Fees were introduced for appeals heard in the Immigration and Asylum Chamber of the First-tier Tribunal by the First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011/2841 (‘the Fees Order) which came into effect on 19 December 2011. The fee is £80 where a person consents to an appeal without a hearing, and £140 where they do not consent (Article 3). The Fees Order also provides that fees are not payable for certain types of appeal (Article 5); and that fees can be deferred, reduced, remitted or refunded in certain circumstances (Article 7). Amongst those appeals exempted from the payment of fees by Article 5 (vii) are appeals in respect of a removal decision under section 47. Specifically, Article 5 (1)(a)(vii) provides that “No fee is payable for- (a) an appeal against a decision made under-…(vii) section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave).

Costs Section 29 of the 2007 Act makes provision for costs in relation to proceedings in the First-tier Tribunal and the Upper Tribunal. Sections (1) and (2) of section 29 provide that “The costs of and incidental to … all proceedings in the First-tier Tribunal …shall be in the discretion of the Tribunal in which the proceedings take place” and that “The relevant Tribunal shall have full power to determine by whom and to what extent the costs are to be paid.”

Presidential Guidance As a result of the introduction of fees for appeals in tribunals, Joint Presidential Guidance was issued in relation to fee awards in Immigration Appeals, to “assist judges who have to decide fee awards” which said, amongst other matters: “Provision for a “fee award” is a new element for appeals to the FtTIAC. The making of an award is to be decided by the judge on the evidence before him or her and dealt with in the determination following the decision on outcome. The decision on fees is not part of the determination and is an excluded matter for the purposes of ss.11 and 13 of Tribunals, Courts and Enforcement Act 2007…”

The appellant is a citizen of India, now aged 35, who entered the United Kingdom as a Tier 4 (General) Student with leave to remain until 30 July 2012. On the 30 July 2012, he applied for further leave to remain as a Tier 2 (Minister of Religion) Migrant under the Points Based System (the PBS). On the 27 September 2012 the respondent refused the appellant’s application (on the ground that the appellant did not meet the relevant requirements and could not be awarded the required number of points) and also made a removal decision under section 47 of the Nationality, Immigration and Asylum Act 2006 (section 47). The appellant, having paid the fee of £140, appealed against the refusal and removal decisions under section 82 of the Nationality, Immigration and Asylum Act 2006.

After receiving oral submissions from the respondent and written submissions from the appellant, on 10 December 2012 the First-tier Tribunal (Judge Scott) promulgated its decision on the appellant’s appeal. The First-tier Tribunal determined the respondent’s decision to refuse leave to remain was lawful, rejecting the various arguments advanced by the appellant in support of his appeal. The judge noted that though a Tier 2 (Minister of Religion) applicant must have certain specified qualifications the appellant had only submitted a letter from a college giving the name of a course and its start and end dates. The judge said: “…unsurprisingly, the respondent found this did not satisfy the requirement…”. The appellant had also failed to provide a valid Certificate of Sponsorship assigned by a Tier 2 licensed sponsor and the respondent was not satisfied in the absence of such a certificate that the appellant had any prospective sponsor to certify his maintenance. The judge rejected the appellant’s submissions that he should have been allowed an opportunity to supply missing documents and that the decision was in breach of his Article 8 rights.

However, the judge also found the removal decision was unlawful and without effect, but only because the removal decision under section 47 had been made concurrently with the decision refusing leave to remain: see Adamally (Section 47 Removal Decisions: Tribunal Procedures) [2012] UKUT 00414 (IAC), a decision recently approved in Rahman v SSHD [2014] EWCA 11. He therefore said, “…to that extent only the appeal falls to be allowed.” In a section coming after the decision and his signature the judge made a note to the respondent, which said: “I have dismissed the appeal and therefore there can be no fee award.”

The appellant appealed against the First-tier Tribunal’s decision to make no fee award on a number of grounds. It was said that the decision of the First-tier Tribunal was ‘one decision’ and having allowed the appeal against the section 47 decision, the appeal should have been allowed in its entirety (from which it followed that a fee award should have been made). Further, although the appeal under section 47 had been allowed, the judge had given no reasons why he had not “deemed it appropriate to make a fee award in favour of the appeal” and in any event it was arguable that the appellant was entitled to some if not all of the fee award. On 4 January 2013 the First-tier Tribunal granted the appellant permission to appeal to the Upper Tribunal.

On 18 April 2013 the Upper Tribunal (Upper Tribunal Judges Allen and Martin) having invited submissions on the point, declined to hear the appeal on the ground it had no jurisdiction to do so. It said:

“14.

We do not agree with Mr Malik’s argument that if Parliament had intended to exclude a fee award made under section 29 it would have said so in section 11(5). As can be seen, by no means all the categories of excluded decisions relate to specific statutory provisions but extend to such matters as decisions of the First-tier Tribunal under section 9 of the Act to review or not to review an earlier decision of the Tribunal and a decision to refer or not to refer a matter to the Upper Tribunal. Clearly Parliament intended, in section 11(5)(f) to give the Lord Chancellor the power to specify decisions of the First-tier Tribunal which would also be excluded decisions. That provision is expressed in broad terms, and it can in no sense be said to take its colour from the specific nature of the matters set out at section 11(5)(a) to (c).

15.

The same argument applied, mutates mutandis, to the Appeals (Excluded Decisions) Order 2009, which is the order made by the Lord Chancellor in exercise of the power he has under section 11(5)(f) and also in respect of the rights of appeal to the Court of Appeal, under section 13(8)(f) of the 2007 Act. The fact that the Lord Chancellor has since chosen to specify a number of specific categories of decision as being excluded decisions in no sense inhibits the potential breadth of Article 3(m) which we have set out above. We agree with Mr Malik that a decision on fees cannot properly be described as a procedural or preliminary decision, and that if it is to fall within paragraph (m) then it must be an ancillary decision.

16.

As regards the case law referred to by Mr Malik, paragraphs 22 to 29 of Cart provide a helpful overview of the changes brought in by the Tribunals, Courts and Enforcement Act 2007 and Sedley LJ at paragraph 15 of AS and RA commented, clearly obiter, on the unattractiveness of an error of the kind, if it were an error, being processed by way of judicial review which was a circuitous and arguably inappropriate route. Neither of these has in our view any direct relevance to the issue before us. In our view there is no context either in Section 11 of the 2007 Act or in the Excluded Decisions Order which can detract from the clear wording of those provisions. The Presidential guidance is, as it is headed, guidance, issued to assist judges who have to decide on fee awards. It does not purport to be prescriptive. The simple question we have to decide with regard to jurisdiction in this case is whether a decision on fees is an ancillary decision made in accordance with the terms of Article 3(m) of the Excluded Decisions Order. In our view it is entirely clear that it is an ancillary decision. No doubt wisely the Lord Chancellor preferred to make provision as he did in sub-paragraph (m) for categories of decision rather than specifying particular types of decision, and it is difficult to see how a decision as to fees can be said to be other than ancillary to the main decision in the appeal.

17.

Accordingly we conclude that we do not have jurisdiction to entertain a challenge to the First-tier Judge’s decision not to make a fee award in this case, and that must be true of the Upper Tribunal generally in relation to challenges to decisions by First-tier Judges not to make (or to make) fee awards. We therefore decline jurisdiction in this case.”

The principal submission for the appellant is that the Upper Tribunal was wrong to decline jurisdiction because Article 3(m) of the Excluded Decisions Order is ultra vires section 11(5)(f) of the 2007 Act. Mr Malik says the language used in section 11(5)(f) itself and the other exclusions specified in section 11(5) shows that Parliament envisaged a clear and fixed list of specified decisions excluded by an order rather than vague and insufficiently certain classes or categories (such as “any procedural, ancillary or preliminary decision”); Article 3(m) of the Excluded Decisions Order frustrates that intention. He also says it is hardly credible that Parliament would have intended to give the Lord Chancellor the sweeping power to take away the right of appeal and therefore access to the courts, effectively at will, and an amendment to section 11(5)(f) would be required were it to do so.

Alternatively, he says the Upper Tribunal was wrong to conclude that a fee decision was an excluded decision falling within the exclusions provided for in Article 3(m). He says a fee decision, and indeed any costs decision is not truly an “ancillary decision” for the purposes of Article 3 on its true construction but forms part of the overall decision on the merits. He says had Parliament intended to exclude rights of appeal in respect of costs decisions made under section 29 of the 2007 Act it would have specifically said so by including such decisions in the list of excluded decisions in section 11(5) of the 2007 Act; and in any event, it would be contrary to the general scheme of the 2007 Act, the purpose of which was to establish a system of specialist tribunals if the only recourse for parties dissatisfied with a decision on a fee award was to make an application for judicial review.

I agree with the Upper Tribunal’s well-expressed reasons for rejecting those arguments. In my view, the appellant’s arguments on vires are contradicted by the clear language of the statutory provisions to which I have referred. Section 11 of the 2007 Act provides for a right of appeal on a point of law from the First-tier Tribunal to the Upper Tribunal, but that right is subject to exceptions, including by section 11(5)(e) “any decision that of the First-tier Tribunal that is of a description specified in an order made by the Lord Chancellor”. Article 3(m) of the Excluded Decisions Order clearly does specify descriptions of excluded decisions, i.e. “any procedural, ancillary or preliminary decision made in relation to an appeal against a decision under section 40A of the British Nationality Act 1981, section 82, 83 or 83A of the Nationality, Immigration and Asylum Act 2002.” It is obvious from the language of section 11(5)(f) therefore that Parliament did intend that further orders should be made which specified decisions in respect of which there would be no right of appeal, and I do not accept the scope of that provision is restricted (or “coloured” as the Upper Tribunal put it) by the other matters specified in section 11(5) in the way suggested by the appellant. The fact that a class of decision is described in Article 3(m), rather a particular decision, does not mean that the provision is either vague or lacks certainty, and I do not accept it is correct to characterise the language of Article 3(m) in that way.

I also do not accept the appellant’s alternative argument that the Upper Tribunal was wrong to conclude the fee decision was an ancillary decision. If a court or tribunal has to make an adjudication on costs after determining an appeal, its costs decision will normally, but not necessarily depend on its view of the merits of the appeal. That does not mean however that the costs decision is part of the substantive decision on the merits: as a matter of ordinary language, it is obviously ancillary to it, in the sense that it is a separate but connected matter which requires to be determined to dispose of the proceedings. It follows that the First-tier Tribunal’s (ancillary) decision not to make a fee award in respect of the appellant’s appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 fell squarely within Article 3(m) of the Excluded Decisions Order, and cannot be appealed.

Mr Malik’s further arguments on the point seem to me to take the matter no further. That fee orders are excluded by Article 3(m) rather than being specifically excluded by section 11(5) itself does not seem to me to be material. Equally, I am not persuaded that the observations in R (Cart) v The Upper Tribunal [2011] UKSC 28, [2011] 3 WLR 107 at paragraphs 22 to 29, or in AS (India) v Secretary of State for the Home Department [2009] EWCA Civ 1495 at paragraph 15 are relevant to the disposal of this appeal. The restriction of rights of appeal inevitably circumscribes the options open to a dissatisfied litigant; but Mr Malik’s arguments about the consequences of the restriction of those rights seem to me to raise matters of policy rather than ones of law.

It follows from what I have already said that I reject the appellant’s criticism of the Joint Presidential Guidance, which I consider to be both helpful and correct. I should add that the appellant’s further criticism that the Upper Tribunal merely followed that guidance is ill-founded as can be seen from the passages from its reasons which I have set out above.

In view of my conclusions on the appeal, it becomes necessary to consider the appellant’s application that the court should reconstitute as the Divisional Court to hear an application by the appellant for permission to apply for judicial review of the First-tier Tribunal’s decision. We decided to accede to the application and to hear argument sitting as the Divisional Court.

Mr Malik submits the First-tier Tribunal erred in making no fee award for two reasons. First, the appellant should not have been charged for the application made to the First-tier Tribunal as it included a section 47 appeal against a removal decision, in respect of which no fee is payable. Alternatively, the First-tier Tribunal should have made a fee award in the appellant’s favour either in whole or in part, because it allowed the appeal against the respondent’s removal decision. Ms Olley for the Secretary of State did not submit the court should not consider the judicial review application. Her simple point was that it does not help the appellant since the grounds advanced are wholly without merit.

Section 85(1) of the Nationality, Immigration and Asylum Act 2002 brings the two decisions made (leave to remain and removal) into one ‘composite’ appeal. As the Upper Tribunal explained in Adamally, the removal decision and the renewal decision are nonetheless, two separate decisions requiring separate determination; and section 86 of Nationality, Immigration and Asylum Act 2002 allows and requires the determination to reflect differences in outcome: see further Rahman at paragraphs 17 to 22. Under Article 5 of the Fees Order “no fee is payable for an appeal made against a decision made under…section 47 of the Immigration, Asylum and Nationality Act 2006. However, it does not follow because no fee is payable in respect of that (no fee) appeal, that no fee is payable where other grounds of appeal are pursued, in respect of which fees are payable. Equally, it does not follow that an appellant who succeeds in an appeal against a decision that does not attract the fee, is then entitled to a discount or refund in respect of the fee properly applicable to his (unsuccessful) appeal against a separate decision.

Though in this case there was one ‘composite’ appeal before the First-tier Tribunal, the two decisions were dealt with separately for the purposes of outcome and I do not consider it to be arguable that there was any reviewable error in adopting the same approach to the antecedent fee.

We dealt with the judicial review application as the matter was raised in the grounds of appeal, the issues raised were straightforward and the respondent did not object. The route now for such applications is to the Upper Tribunal Immigration and Asylum Chamber either in respect of the classes of case to which paragraph 1 of the Lord Chief Justice’s direction of 21 August 2013 made pursuant to section 18(6) of the 2007 Act applies or, where the application has been made to the High Court, and the Court decides to designate it as an immigration matter and transfer it to the Upper Tribunal under section 31A(3) of the Senior Courts Act 1981. See further sections 15, 16 and 18 of the 2007 Act.

However, tribunals are obviously very familiar with what is meant by procedural, ancillary or preliminary decisions made in relation to appeals they have to determine, and I would not expect or encourage similar challenges to that mounted here to evident decisions of that description, either by way of appeal, or via the judicial review route.

For the reasons given I would refuse the application for permission to apply for judicial review, and would dismiss this appeal.

I agree.

I also agree.

Tribunals, Courts and Enforcement Act 2007

Right to appeal to Upper Tribunal

Right to appeal to Court of Appeal etc.

Costs or Expenses

The Appeals (Excluded Decisions) Order 2009

This Order may be cited as the Appeals (Excluded Decisions) Order 2009 and comes into force on 1^st April 2009.

For the purposes of sections 11(1) and 13(1) of the Tribunals, Courts and Enforcement Act 2007, the following decisions of the First-tier Tribunal or the Upper Tribunal are excluded decisions-

The First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011/2841

- (1) A fee is payable in respect of an appeal to the First-tier Tribunal where the appeal relates to an immigration or asylum matter and the decision against which the appeal is made was taken on or after the coming into force of this Order.

The fee is payable by or in respect of each appellant on the date on which the Notice of Appeal is given.

The fee payable is-

- (1) No fee is payable for-

A fee specified in this Order may be reduced or remitted where the Lord Chancellor is satisfied that there are exceptional circumstances which justify doing so.

Joint Presidential Guidance Fee Awards in Immigration Appeals

In the courts, where there is power to award costs, it is usual for the unsuccessful party to pay the costs of the successful party which would include any fees paid to a court to bring an action.

Provision for a “fee award” is a new element for appeals to the FtTIAC. The making of an award is to be decided by the judge on the evidence before him or her and dealt with in the determination following the decision on outcome. The decision on fees is not part of the determination and is an excluded matter for the purposes of ss.11 and 13 of Tribunals, Courts and Enforcement Act 2007.

Where the Upper Tribunal sets aside a decision of the FtT judge and remakes it in favour of the appellant, the FtT award decision will fall away. The UT judge will need to consider the question of fees made in respect of the FtT appeal. In so doing the UT judge will be exercising functions of the FtT judge under s.12 (4)(a) of the Tribunals, Courts and Enforcement Act 2007.

Although each case will turn on the exercise of a judicial discretion in the light of the issues, the following guidelines should be considered by judges making these decisions.