UTIAC (1) In deciding an application for permission to appeal the Upper Tribunal against the decision of the First-tier Tribunal, Immigration and Asylum Chamber, a judge of that Chamber should consider carefully the utility of granting permission only on limited grounds. In practice, such a limited grant is unlikely to be as helpful as a general grant, which identifies the ground or grounds that are considered by the judge to have the strongest prospect of success. In this way, the judge identifies the likely ambit of the forthcoming Upper Tribunal proceedings, which – if that Tribunal concurs – can then form the backdrop for the Upper Tribunal’s subsequent case management directions.
(2) Where the First-tier Tribunal judge nevertheless intends to grant permission only in respect of certain of the applicant’s grounds, the judge should make this abundantly plain, both in his or her decision under rule 25(5) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and by ensuring that the Tribunal’s administrative staff send out the proper notice, informing the applicant of the right to apply to the Upper Tribunal for permission to appeal on grounds on which the applicant has been unsuccessful in the application to the First-tier Tribunal.
(3) If an applicant who has been granted permission to appeal to the Upper Tribunal on limited grounds only applies to the Upper Tribunal on grounds in respect of which permission has been refused, the Upper Tribunal judge considering that application should not regard his or her task as merely some form of review of the First-tier Tribunal’s decision on the application.
(4) Whatever may be the position in other Chambers of the Upper Tribunal, in the Immigration and Asylum Chamber the overriding objective of the Tribunal Procedure (Upper Tribunal) Rules 2008 is unlikely to be advanced by adopting a procedure whereby new grounds of appeal can be advanced without the permission of the Upper Tribunal under rule 5 of those Rules.
(5) The test enunciated by the Supreme Court in Alvi [2012] UKSC 33, for deciding whether material not contained in immigration rules can be relied upon by the Secretary of State in making decisions on the grant of leave to enter or remain, probes deeper than the ‘substantive/procedural’ test articulated in the wake of Pankina [2010] EWCA Civ 719, in that it articulates what makes a particular provision one that has to be included in immigration rules: namely, does it amount to a condition of succeeding under those rules? However, there may still be difficulties in determining whether a particular requirement amounts to such a condition or is merely a ‘procedural’ requirement.
(6) Applying Philipson (ILR – not PBS: evidence) [2012] UKUT 00039 (IAC), where the provisions in question are ambiguous or obscure, then it is legitimate to interpret the provisions by assuming that Parliament is unlikely to have sanctioned rules which (a) treat a limited class of persons unfairly; and (b) disclose no policy reason for that unfairness.
Judges:
Stoery, Peter Lane UTJJ
Citations:
[2012] UKUT 304 (IAC)
Links:
Jurisdiction:
England and Wales
Citing:
Applied – Alvi, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimant had entered as a student, and then stayed under a work permit. New rules were brought in, and because his occupation as a physiotherapy assistant was not listed, he was not credited with sufficient points for a permit. The Court of . .
Lists of cited by and citing cases may be incomplete.
Immigration
Updated: 05 November 2022; Ref: scu.464255