First-Tier Tribunal Onward Immigration Appeals - A Practical Guide

• Published date: 30 July 2021
• Subject Matter: Litigation, Mediation & Arbitration, Immigration, Trials & Appeals & Compensation, General Immigration
• Law Firm: Richmond Chambers Immigration Barristers
• Author: Mr Alex Papasotiriou and Alexandra Pease

We recently examined, in Parts One, Two, Three and Four of our Practical Guide to Immigration Appeals, how and on what basis an immigration appeal can be pursued. We have examined both legal and practical considerations for an appeal.

The factors and considerations we have set out and examined cannot be considered an exhaustive list. The approach to an appeal will depend on the individual facts and circumstances.

What if an immigration appeal is dismissed by the First-tier Immigration Tribunal? Where does this leave you and what can you do? We examine this in this article. You may need to seek specialist legal advice as to the process, relevant time limits and legal arguments to be advanced.

Error of Law in Immigration Appeals

If your immigration appeal is dismissed by the First-tier Tribunal, it may be possible to appeal onwards to the Immigration and Asylum Chamber of the Upper Tribunal. The Upper Tribunal also deals with immigration judicial review applications.

Unlike appeals to the First-tier Tribunal where, in most cases (see paragraph 69 of Begum v Home Secretary [2021] UKSC 7), the Secretary of State's decisions are considered on their merits by the Tribunal, the Upper Tribunal is called to consider whether the decision of the First-tier Tribunal is erroneous in law and, provided the error is material, should be set aside.

In R (Iran) & Ors v Secretary of State for the Home Department [2005] EWCA Civ 982, the Court of Appeal gave examples of the most commonly encountered errors of law (albeit not an exhaustive list):

• Making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters");
• Failing to give reasons or any adequate reasons for findings on material matters;
• Failing to take into account and/or resolve conflicts of fact or opinion on material matters;
• Giving weight to immaterial matters;
• Making a material misdirection of law on any material matter;
• Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;
• Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake and where unfairness resulted from the fact that a mistake was made.

Errors in factual findings would not normally amount to errors of law, unless they have reached the threshold of irrationality (in the...