UTIAC 1. If a decision maker in the purported exercise of a discretion vested in him noted his function and what was required to be done when fulfilling it and then proceeded to reach a decision on that basis, the decision is a lawful one and the Tribunal cannot intervene in the absence of a statutory power to decide that the discretion should have been exercised differently (see s 86(3)(b) of the Nationality, Immigration and Asylum Act 2002).
2. Where the decision maker has failed to exercise a discretion vested in him, the Tribunal’s jurisdiction on appeal is limited to a decision that the failure renders the decision ‘not in accordance with the law’ (s 86(3)(a)). Because the discretion is vested in the Executive, the appropriate course will be for the Tribunal to require the decision maker to complete his task by reaching a lawful decision on the outstanding application, along the lines set out in SSHD v Abdi [1996] Imm AR 148. In such a case, it makes no difference whether there is such a statutory power as is mentioned in paragraph 1 above.
3. If the decision maker has lawfully exercised his discretion and the Tribunal has such a statutory power, the Tribunal must either (i) uphold the decision maker’s decision (if the Tribunal is unpersuaded that the decision maker’s discretion should have been exercised differently); or (ii) reach a different decision in the exercise of its own discretion.
Judges:
CMG Ockleton VP, Jordan UTJ
Citations:
[2012] UKUT 307 (IAC)
Links:
Statutes:
Nationality, Immigration and Asylum Act 2002 86(3)(b)
Jurisdiction:
England and Wales
Immigration
Updated: 05 November 2022; Ref: scu.464259