United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-005152

First-tier Tribunal No: DC/50037/2023

 

THE IMMIGRATION ACTS

 

Decision & Reasons Issued:

On the 18 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE BULPITT

DEPUTY UPPER TRIBUNAL JUDGE RIPLEY

 

Between

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

MASOOD AHMED

(ANONYMITY ORDER NOT MADE)

Respondent

Representation :

For the Appellant: Mr E Terrell, Senior Presenting Officer

For the Respondent: Mr A Papasotiriou Counsel for Legal Rights Partnership.

 

 

Heard at Field House on 28 January 2025

 

DECISION AND REASONS

 

Introduction

1.       Although the Secretary of State for the Home Department ("the Secretary of State") is the appellant before us, we shall use the terms the Secretary of State and refer to Mr Ahmed as the appellant as that is what he was when he appeared before the First-tier Tribunal.

 

2.       The Secretary of the State appeals a decision of First-tier Tribunal Judge Le Grys ("the Judge") allowing the appellant's appeal by a decision dated 20 September 2024.

Relevant Facts

3.       The appellant was granted entry clearance as a fiancé in 2018 and subsequently granted leave to remain and indefinite leave to remain as the spouse of a British national. He was granted British citizenship in September 2011. In 2015 the respondent learned that the appellant had earlier married in Pakistan in 1995 and that marriage had not been dissolved. The respondent first took action to deprive the appellant of his citizenship in 2020. The appellant appealed against that decision and his appeal before the Upper Tribunal was successful. On 24 March 2023, the respondent took a further decision to deprive the appellant of citizenship pursuant to section 40(3) British Nationality Act 1981 (BNA 1981). The appellant again appealed, and it is the subsequent First-Tier Tribunal decision in respect of that appeal that the Secretary of State is seeking to challenge in this appeal to the Upper Tribunal.

 

Grounds of Appeal

4.       The Secretary of State initially and in essence advanced five grounds of appeal:

(i)                  The Judge materially erred in the consideration of whether the appellant had resided in the UK between 2004 and 2008.

(ii)               The judge had misunderstood the Secretary of State's argument regarding the appellant's failure to seek legal advice concerning his first marriage

(iii)             The judge had misunderstood the Secretary of State's position regarding the appellant's claim that he was aware that his marriage was valid in Pakistan but believed to be invalid in the UK.

(iv)             The Secretary of State had not been provided with an opportunity to comment on the significance of the use of an interpreter in the appellant's interview and the Judge was wrong to place weight on this alleged omission.

(v)               The Judge had erroneously considered the respondent's failure to place weight on an alternative entry clearance application that the appellant could have made, which would have removed the incentive to make a dishonest application.

 

5.       By a decision dated 28 November 2024, Upper Tribunal Judge Ruddick granted the Secretary of State permission to appeal on all grounds save those relating to ground (i) above, on which permission was refused.

 

6.       On 11 December 2024 the appellant filed a rule 24 response.

 

7.       The day before this appeal was heard, the Secretary of State filed an application to amend the grounds so as to rely on the decision of the Court of Appeal in Chaudhry v Secretary of State for the Home Department [2025] EWCA Civ 16 that was handed down ten days earlier on 17 January 2025. In Chaudhury it was clarified that in considering appeals against decisions to deprive of citizenship, the Tribunal should first decide for itself whether there was fraud, false representation or concealment of a material fact for the purposes of section 40(3) of the BNA 1981, rather than applying a public law test as had been suggested in Chimi v The Secretary of State for the Home Department (deprivation appeals; scope and evidence) Cameroon [2023] UKUT 115 (IAC)

 

Submissions

8.       Mr Papasotiriou was the content for the Tribunal to proceed to consider whether to permit the respondent to amend the grant, notwithstanding the short period of notice. He submitted that the Upper Tribunal had no power to amend the grant of permission to appeal or to amend the grounds post the grant of permission to appeal. He argued, that EH (PTA: limited grounds, Cart JR) Bangladesh [2021] UKUT 117, relied on in the Secretary of State's application, did not address the amendment of grounds following the grant of permission to appeal. Pursuant to Osefiso [2021] UKUT 116 and Patel & Ors [2015] EWCA Civ 1175, he submitted that the grant of permission was an excluded decision and not open to review. The provisions in rule 43 of the Upper Tribunal Procedure Rules were not engaged as there was no procedural irregularity in the Judge's decision. The Secretary of State was wrong to rely on Virk & Ors v SSHD [2023] EWCA Civ 652 in the application to amend grounds. That authority concerned jurisdiction of the Upper Tribunal to consider an appeal at all and, again, was not relevant to the issue in this appeal.

 

9.       In the alternative, he argued that the Tribunal should refuse to extend time to bring amended grounds. He argued that the application to amend should have been made earlier rather than the day before the hearing.

 

10.   Mr Papasotiriou accepted that if the new grounds were admitted and permission granted, then the Judge had made a material error in not applying the relevant test as now set out in Chaudhry .

 

11.   Mr Terrell argued that it was clearly in the interest of justice to permit the grounds to be amended. He argued that headnote 3 of EH applied and the Upper Tribunal's power to amend was confirmed in rules 22 (2)(b) and 5(2) of the Upper Tribunal's Procedure Rules. The authorities of the Osefiso and Patel concerned the refusal or setting aside the grant of permission, as also addressed in paragraphs 29-36 of Singh [2019] EWCA Civ 1014, and did not apply.

 

12.   Section 25(2) of the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act), as also discussed in Singh, provided the same powers to the Upper Tribunal. The Procedure Rules did not specifically preclude the amending of grounds post the grant of permission. Mr Terrell maintained that EH was on point.

 

13.     Mr Papasotiriou submitted that Patel was a more recent case and clarified the scope of Singh. He maintained that there was no power to amend the grounds and the grant of permission pursuant to those authorities and in the absence the procedural error as required by rule 43.

 

Legal framework:

14.   Extracts from the Tribunal Procedure (Upper Tribunal) Rules 2008/2698 (The Procedure Rules)

 

5.-” Case management powers

(1)  Subject to the provisions of the 2007 Act and any other enactment, the Upper Tribunal may regulate its own procedure.

(2)  The Upper Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.

 

22.-” Decision in relation to permission to appeal

(1)  not relevant 

(2)  If the Upper Tribunal gives permission to appeal-”

(a)  the Upper Tribunal must send written notice of the permission, and of the reasons for any limitations or conditions on such permission, to each party;

(b)   subject to any direction by the Upper Tribunal, the application for permission to appeal stands as the notice of appeal and the Upper Tribunal must send to each respondent a copy of the application for permission to appeal and any documents provided with it by the appellant; (emphasis added)

 

43.-” Setting aside a decision which disposes of proceedings

(1)  The Upper Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if-”

(a)  the Upper Tribunal considers that it is in the interests of justice to do so; and

(b)  one or more of the conditions in paragraph (2) are satisfied.

(2)  The conditions are-”

(a)  a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party's representative;

(b)  a document relating to the proceedings was not sent to the Upper Tribunal at an appropriate time;

(c)  a party, or a party's representative, was not present at a hearing related to the proceedings; or

(d)  there has been some other procedural irregularity in the proceedings.

 

Discussion

15.   At the conclusion of submissions, we informed the parties that we were satisfied that the Tribunal had the power to amend the grounds and it was appropriate to permit the Secretary of State to do so. As it was not disputed by the parties, we also informed them that we were satisfied that there was a material error of law in the Judge's decision such that it had to be set aside and remitted to the First-tier Tribunal for a fresh hearing. We explain our reasons below.

16.   We consider the key to resolving the dispute between the parties is the difference between a decision and a direction. This is a distinction that is apparent from the headnote to EH and a distinction that runs through all the cases relied upon. In response to an application for permission to appeal the Upper Tribunal makes a decision. This is apparent from the heading to rule 22 of the Procedure Rules " Decision in relation to permission to appeal" (our emphasis) and from [14] and [15] of EH which recognise that in response to an application for permission to appeal the Upper Tribunal can (1) give permission to appeal, (2) refuse permission to appeal of (3) refuse to admit a late application for permission to appeal and that where permission is granted "a grant is a grant".

 

17.   As Patel and others makes clear, once the decision to grant permission has been made it cannot be reviewed (even where as in that case the decision is only made orally). To quote EH - a grant is the grant. Neither can a decision to grant permission to appeal be appealed as it is an excluded decision. Osefiso equally makes clear that a decision to refuse permission is an excluded decision which can only be reviewed under the power to set aside for procedural irregularity.

 

18.   As rule 22(2)(b) of the Procedure Rules makes clear, where the application for permission to appeal is granted, then the application stands as the notice of appeal subject to any direction by the Upper Tribunal. This means that the grounds of appeal can be varied not by a decision but by a direction about the scope of the appeal. As [22] of EH makes clear that once a decision has been made and permission is granted then :

 

The scope of the appeal is subject to procedural constraints. Those constraints must be exercised compatibly with the overriding objective in rule 2. The power to give directions in rule 5(2) expressly includes the power to make "a direction amending, suspending or setting aside an earlier direction". An appellant who has been subject to a grant of permission on limited grounds does not, as a general matter, need to resort to the Administrative Court

 

19.   Rule 5(2), of the Upper Tribunal case management powers, confirms that the Tribunal can give a direction in relation to the conduct of proceedings at any time. Rule 5(3)(c) confirms that in such a direction the Tribunal may permit a party to amend a document. The definition of a document in rule 2 includes " anything in which information is recorded in any form " . Mr Papasotiriou did not take us to any part of the Rules that indicated that the powers in rule 5 did not apply to an amendment to grounds of appeal or, more specifically, as he argued, amendment to the grounds of appeal post the grant of permission to appeal. It is clear from EH that the power to give a direction in relation to the conduct of proceedings at any time means that a direction permitting a party to amend grounds of appeal can be given after permission has been granted. As headnotes 2 and 3 to EH state:

 

(2) Rule 22(2)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 has the effect that in the absence of any direction limiting the grounds which may be argued before the Upper Tribunal, the grounds contained in the application for permission are the grounds of appeal to the Upper Tribunal, even if permission is stated to have been granted on limited grounds.

(3) Rule 22(2)(b) has the complementary effect that any limitation on the grounds of appeal must be by direction and, as a direction, can be the subject of an application to amend, suspend or set aside that direction under rule 5(2) of the 2008 Rules.

 

20.     The decisions in Patel and Others, Osefiro and Singh are all concerned with the power to review or vary decisions, not as is the case here the power to make a direction about the scope of an appeal once the decision has been made to grant permission to appeal. They are not therefore relevant to the questions before us which are whether we can and should issue a direction allowing the Secretary of State to amend her notice of appeal, permission to appeal having already been granted.

21.     For all of the reasons given above we conclude that it is clear that rule 5 and 22 of the Procedure Rules provide that we can make a direction permitting the respondent to amend her notice of appeal

 

22.     On the question of whether we should make a direction allowing the Secretary of State to make the amendment, we have considered the interpretation and application of these rules within the context of the overriding objective set out in rule 2 to deal with cases fairly and justly. We also apply this rule to Mr Papasotiriou's argument that the application to amend grounds should have been made earlier. We are mindful that the decision in Chaudhury was handed down on 17 January 2025. and the application to amend the grounds was made 10 days later. Mr Terrell further submitted that he was on leave the week after Chaudhury was promulgated and has made this application on the first day he returned to work, the day before this hearing. We are not satisfied that there has been any significant delay in making this application that should prejudice our grant of the application to amend the grounds of appeal. We note that Mr Papasotiriou did not submit that he had had inadequate time to prepare an argument in response to the grounds. In fact, he made detailed and relevant submissions for which we are grateful.

 

23.     We are also mindful that Mr Papasotiriou accepts that, should the amended grounds be admitted and permission to appeal granted on that basis, that it would follow there was a material error of law in the Judge's decision.

 

24.     In those circumstances we are satisfied that it is in the interest of justice to admit the respondent's amended grounds and grant permission on that basis. We are mindful that the consequences of a contrary conclusion would be to uphold a decision which was clearly wrong in law. The incorrect application of a public law test to the issue of whether deception had occurred comprises a material error of law.

 

Remittal

25.     We are mindful of the presumption in paragraph 7.2 of the Senior President's Practice Statement for the Immigration and Asylum Chambers that appeals should be remade in the Upper Tier Tribunal and find that paragraph 7.2(b) applies. As both representatives concurred, it is appropriate to remit this appeal to the First-tier Tribunal, in view of the lack of fact-finding relating to deception.

 

Notice of Decision

26.     The decision of the First-tier Tribunal dated 26 July 2024 is set aside in its entirety consequent to material error of law.

 

27.     The matter is remitted to the First-tier Tribunal sitting at Birmingham.

 

28.     The decision is to be remade by a judge of the First Tier Tribunal other than Judge Le Grys.

 

 

F Ripley

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

17 February 2025