UTIAC (1) A jurisdictional decision of the First-tier Tribunal, Immigration and Asylum Chamber, contained in a determination made after the appeal has passed the duty judge ‘screening’ stage, is appealable to the Upper Tribunal: Practice Statement 3.4; Abiyat and others (Rights of appeal) [2011] UKUT 314 (IAC).
(2) Where the First-tier Tribunal has refused to entertain an application made to it for permission to appeal to the Upper Tribunal, the Upper Tribunal has discretion under rule 7 of the Tribunal Procedure (Upper Tribunal) Rules 2008 to consider an application for permission made to that Tribunal, notwithstanding that the requirements of rule 21(2)(b) have not been met, in that the First-tier Tribunal has not refused (or not admitted) a permission application. It is, however, unlikely that the Upper Tribunal would apply rule 7 so as to entertain a permission application in the case of a party who has not made any prior application to the First-tier Tribunal. Likewise, the Upper Tribunal can be expected summarily to reject an application for permission to appeal a decision that has been made under rule 9 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and in accordance with Practice Statement 3.1-3.3.
(3) The findings of the Upper Tribunal in Basnet (Validity of application – respondent) [2012] UKUT 113 (IAC) depended upon there being an appealable immigration decision, which in that case can only have been a refusal to vary leave to remain within section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002. The Secretary of State’s rejection of an application for leave as invalid is not an immigration decision within section 82 of the 2002 Act and cannot as such be appealed to the First-tier Tribunal.
Eshun, Peter Lane UTJJ
[2014] UKUT 150 (IAC)
Bailii
England and Wales
Immigration
Updated: 02 December 2021; Ref: scu.523493