Bangura & Anor v the Upper Tribunal (Immigration & Asylum Chamber)

This case demonstrates a deeply unhappy and protracted procedural tangle. Such tangles necessarily involve cost - in terms of delay, the public purse, public confidence in immigration control and the impact on the lives of the individuals involved. I hope that at the conclusion of our judgment the parties will reflect on the position reached and seek to escape from the thickets of procedure with a view to resolving the substantive issues which will one day need to be addressed.

The applicants apply to this court for permission to appeal the decision of Jay J on 10 July 2015 refusing permission to apply for judicial review. I shall return to that decision but it is most helpfully approached via a bird’s eye view of the history, much aided by the chronology supplied by counsel at the court’s request.

On 18 September 2014, the Secretary of State for the Home Department refused the asylum claim made by the first applicant (with the second applicant and the second applicant’s daughter listed as dependents), and indicated that they would be removed administratively. The relevant notices of decision confirmed that they, the first and second applicants, each had an in-country right of appeal.

On 6 October 2014, the first and second applicants faxed notices of appeal to the First-Tier Tribunal against the Secretary of State’s removal directions.

Subsequently two case management reviews were fixed and adjourned.

In the meantime, under cover of a letter of 8 October 2014 a further reasons for refusal letter was sent, dated 3 October 2014, in which the Secretary of State certified, or purported to certify, the first applicant’s asylum and human rights claims on the grounds that such claims were clearly unfounded. In consequence, the first applicant could not appeal while in the United Kingdom.

Curiously, under cover of the same 8 October letter, a further administrative removal decision was sent, again indicating that the first applicant had an in-country right of appeal.

Following the third case management review on 21 November 2014 notices were issued on 2 December 2014 saying this:

“NOTICE OF APPEAL WHERE THERE IS NO RELEVANT DECISION ETC.

You have given a notice of appeal against a decision of the respondent.

The decision against which you are seeking to appeal is not one against which there is an exercisable right of appeal to the First-tier Tribunal or is one where the notice of appeal falls within rule 22(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Accordingly, the notice of appeal you have lodged is invalid and the tribunal will take no further action in relation to it.”

It may be noted that that document – that is, the document of 2 December 2014 – was signed by the clerk to the First-Tier Tribunal.

On 16 December 2014 the applicants applied to the First-Tier Tribunal for permission to appeal. They advanced, in summary, these grounds: (1) that the first and second applicants had instituted appeals against the Secretary of State’s decisions of 18 September 2014; (2) the purported further decision dated 8 October 2014 related to the first applicant only; (3) in any event, as the first applicant had already instituted an appeal against the Secretary of State’s decision of 18 September 2014, his appeal remained pending under section 104 of the Nationality, Immigration and Asylum Act 2002, such appeal not having lapsed by the operation of section 99 of that Act; (4) the First-Tier Tribunal rules 2014 require permission to be given to the Secretary of State to withdraw a decision, and no notice of withdrawal had ever been given.

On 5 January 2015 Judge Denson, a judge of the First-Tier Tribunal, said this:

“The appellants seek permission to appeal against a decision of the tribunal determining that the decision against which the appellants were seeking to appeal was not one in which there was an exercisable right of appeal to the First-Tier Tribunal. There is no arguable error of law but permission to appeal is not refused as there was no appeal in which there was an exercisable right of appeal in any event.”

Curiously again, Judge Denson’s ruling was sent to the applicant in a letter saying this. The letter notified the applicants that the First-Tier Tribunal had refused or not admitted the applications for permission to appeal to the Upper Tribunal and went on to say that the applicants may apply to the Upper Tribunal for permission to appeal on a point of law arising from the First-Tier Tribunal decision.

Subsequently, on 21 January 2015 the first and second applicants sought to appeal to the Upper Tribunal. On 24 April 2015 the Upper Tribunal refused permission to appeal to itself in the following terms:

“Permission to appeal is refused. Reasons (including any decision on extending time). The First-Tier Tribunal did not accept the notice of appeal that was lodged and issued to the appellant a notice to that effect, confirming to the applicant that, as is the notice of appeal is invalid, the First-tier Tribunal will take no further action in relation to it. That was an administrative act by the tribunal and so there has been no judicial decision capable of being challenged by an application for permission to appeal. As this was an excluded decision, there was no right of appeal to the Upper Tribunal (see section 11(1) Tribunals, Courts and Enforcement Act 2007).”

On 15 May 2015 the first and second applicants sought judicial review of that decision or those decisions of the Upper Tribunal. Against that background, I come to the decision of Jay J on 10 July 2015. The learned judge refused permission for judicial review and said this:

“On 2 December 2014 the First-Tier Tribunal made an administrative decision stating that the decisions you were seeking to appeal were not appealable decisions for the purposes of rule 22(2)(a) of the Procedure Rules. You then sought to appeal that decision to the Upper Tribunal, but that application was misconceived. Under section 11(1)(g) of the 2007 Act and article 3(m) of the Appeals (Excluded Decisions) Order 2009 as amended, the First-Tier Tribunal’s decision was itself an excluded decision and not appealable. The same applies under a different provision to the Upper Tribunal’s decision refusing permission to appeal to the Court of Appeal.

What you should have done was to seek to judicially review the First-Tier Tribunal’s decision dated 2 December 2014. Instead you have persisted with a misconceived application. I do not comment on the prospects of success of the application that you have not made and which you may well be out of time to bring.

In my view, this is not a Cart case. There has been no substantive appeal.

A renewed application is no bar to removal in the absence of further order.”

It may be noted that the applicants did not renew their application for an oral hearing in the Administrative Court. Instead they have sought leave to appeal to this court from the decision of Jay J. That course was queried by the Master of the Civil Appeals Office under cover of an email of 21 August 2015. It was there said:

“It is unclear why the applicants did not renew their application to an oral hearing in the Administrative Court. It was not treated as Cart type case so renewal has not been precluded by CPR 54.7A(8)…”

Ultimately the matter has come to us following directions given by Underhill LJ, to which it is unnecessary to go. The first and jurisdictional question is whether there is any judicial decision from the First-tier Tribunal which is appealable. In my judgment, there is not, essentially for the reasons given by Jay J. As it seems to me, on the facts of this case, what happened here is that the Secretary of State certified and what followed was an administrative decision by the FTT. That point is exemplified by the fact that the decision is signed by a clerk though I am certainly saying nothing more general about the powers of delegated officers in the tribunal system. But here it rather makes the point that all that happened was a certificate from the Secretary of State followed by an administrative decision, so that there was no judicial decision on the FTT’s part and therefore nothing to appeal to the Upper Tribunal.

In the circumstances, it seems to me that there is no arguable basis for any appeal from the decision of Jay J to this court. I have not overlooked that Mr O’ Ryan, who approached this matter extremely diligently for the applicant, sought to pray in aid three decisions to which he drew our attention. Those are, first, JH (Zimbabwe) v SSHD [2009] INLR 385; secondly, Abiyat [2011] UKUT 314 (IAC), 20 July 2011; and, thirdly, Ved & Anr [2014] UKUT 150 (IAC) 27 March 2014.

The point of all those decisions is that some jurisdictional decisions rejecting jurisdiction are indeed judicial. With that proposition it is impossible to quibble. But some jurisdictional decisions are also not judicial decisions and are no more than administrative, and, in my judgment that is the case here beyond argument. Jay J expressed a view as to what the right course was. In the course of argument today, both my Lord and I expressed views as to what the real issues of the case were and how they could rightly be addressed. That is now a matter for the parties to consider and pursue, if they think fit; but, for our part, it is unnecessary to go further than in my judgment to say that I would refuse permission to appeal.

I agree.

We are grateful for the assistance of both Mr O’Ryan, who I commend for his diligence, and Ms Anderson, for her helpful skeleton argument.

In principle as to costs, Ms Anderson is right. With a degree of reluctance, given that, it seems to me at least, it is unfortunate that this case has reached here with the entrenched position of both parties being what it has been, nonetheless the principle which Ms Anderson refers to does apply; it is a strong principle and she should have her costs subject to detailed assessment.