Kaur v Secretary of State for the Home Department [2018] EWCA Civ 1303

Case No C5/2016/0025[2018] EWCA Civ 1303
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN
IA/41118/2014 and IA/41123/2014
IN THE MATTER OF AN APPLICATION FOR PERMISSION TO APPEAL
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24 May 2018
Before
Lord Justice PattenLord Justice UnderhillLord Justice Lindblom
Between
Charanjit KaurApplicantSecretary of State for the Home DepartmentRespondent
Mr Rajiv Sharma (instructed by Paul John and Co. Solicitors) for ApplicantMr Nicholas Chapman (instructed by the Government Legal Department) for RespondentHearing Hearing date: 27 March 2018
Judgment

Introduction

[1]The applicant, Charanjit Kaur, seeks permission to appeal to this court against the decision of the Upper Tribunal (Deputy Upper Tribunal Judge Chamberlain), promulgated on 16 October 2015, allowing the appeal of the respondent, the Secretary of State for the Home Department against the decision of the First-Tier Tribunal (First-tier Tribunal Judge Lawrence), promulgated on 14 May 2015, which had allowed her appeal against the refusal by the Secretary of State, on 25 September 2014, of her application for leave to remain in the United Kingdom as a Tier 4 (General) Student.[2]The Upper Tribunal refused permission to appeal on 7 December 2015. Permission to appeal was subsequently applied for in this court, and was refused by Rafferty L.J. on 7 April 2016. The application was renewed, and came before McFarlane L.J. at a hearing on 13 February 2017. He ordered that the matter be set down for a “rolled-up” hearing, and that Ms Kaur had permission to file and serve amended grounds of appeal and an amended skeleton argument within 14 days – which she duly did.[3]Ms Kaur and her husband, Saab Singh, are both nationals of India. Ms Kaur entered the United Kingdom on a Tier 4 (General) Student visa, on 16 November 2010, and her leave to remain was subsequently extended until 30 August 2014. Mr Singh entered the United Kingdom as her dependant. On 30 August 2014 she made an application for further leave to remain. On 1 August 2014 Mr Singh had transferred the sum of £3,700 from his savings account at Halifax Bank to Ms Kaur’s savings account at Barclays Bank. Those funds were not, however, credited to Ms Kaur’s account until 4 August 2014. Thus, by the time Ms Kaur made her application for further leave to remain, the requisite funds under the points-based system in the Immigration Rules had been in Ms Kaur’s account for only 27 days – one day short of the period of 28 days specified in paragraph 245ZX.

Paragraph 245ZX of the Immigration Rules

[4]At the relevant time, paragraph 245ZX of the Immigration Rules stated:
“245ZX. Requirements for leave to remain To qualify for leave to remain as a Tier 4 (General) Student under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the applicant will be refused. Requirements: … Requirements: (d) The applicant must have a minimum of 10 points under paragraphs 10 to 14 of Appendix C. … .”
Appendix C stated:
“1A. In all cases where an applicant is required to obtain points under Appendix C, the applicant must meet the requirements listed below: (a) The applicant must have the funds specified in the relevant part of Appendix C at the date of the application; … (c) If the applicant is applying as a Tier 4 Migrant, the applicant must have the funds referred to in (a) above for a consecutive 28-day period of time; … (h) the end date of the … 28-day [period] referred to in … (c) above will be taken as the date of the closing balance on the most recent of the specified documents …, and must be no earlier than 31 days before the date of application. … (a) The applicant must have the funds specified in the relevant part of Appendix C at the date of the application; … (c) If the applicant is applying as a Tier 4 Migrant, the applicant must have the funds referred to in (a) above for a consecutive 28-day period of time; … (h) the end date of the … 28-day [period] referred to in … (c) above will be taken as the date of the closing balance on the most recent of the specified documents …, and must be no earlier than 31 days before the date of application. … 1B. In all cases where Appendix C … states that an applicant is required to provide specified documents, the specified documents are: (a) Personal bank or building society statements which satisfy the following requirements: (i) The statements must cover: … (3) a consecutive 28-day period of time, if the applicant is applying as a Tier 4 Migrant … … … Tier 4 (General) Students 10. A Tier 4 (General) Student must score 10 points for funds. … .”

The Secretary of State’s decision letter of 25 September 2014

[5]The Secretary of State’s decision letter stated that Ms Kaur had “failed to meet the requirements of paragraph 245ZX(d)” of the Immigration Rules, because she had “not been awarded 10 points for Maintenance (Funds)”. Two reasons were given:
“ • You are required to show living costs of £1,640.00 for yourself, £920.00 for your dependant(s) plus your outstanding course fees of £0.00 as stated on your CAS. You are therefore required to show that you are in possession of £2,560.00 for a consecutive 28 day period to meet the Tier 4 (General) Student maintenance requirements. • The bank statements with account number ****2024 have not been accepted as evidence of funds because they only show funds between 4 August 2014 and 30 August 2014 and so do not cover the required consecutive 28 day period. While the statements run to 1 September 2014 we cannot take into consideration any funds held after the date of your application.” 6. In section B of the decision letter, “Appeal Rights”, it was confirmed that there was a right to appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002, as amended. In section D, “Option to make new application”, the decision letter referred to the possibility of the decision being reconsidered “on the basis of new or additional information …”, provided that a fresh application was submitted, including “full supporting evidence …”
.

The decision of the First-tier Tribunal

[7]In his decision the First-tier Tribunal

judge said (in paragraphs 2, 3 and 4 of his decision):

“2. … The respondent found that the first appellant has to demonstrate she had access to £2,560 for a consecutive 28 days from the 3rd of August 2014 to the 30th of August 2014. The evidence submitted to the respondent, with the application, is that the first appellant had access to the said sum but only from the 4th of August 2014. She was short by one day. Given that the first appellant could not strictly meet the 28 days the respondent refused the applications under para 245ZX(d) of HC395. There are no other issues. It seems to me to refuse applications on the basis of a delay day [sic] is contrary to common sense. The man or woman on the ‘Clapham omnibus’ will hold such a decision with derision. 3. I remind myself of the judgment in [Forrester v Secretary of State for the Home Department] [2008] EWHC 2307 (Admin) where the High Court found that the respondent “is given a discretion, and she is given a discretion on the basis that it will be exercised with a modicum of intelligence, common sense and humanity. It might be asked, in these circumstances, what possible reason there could have been for not exercising the discretion in this claimant’s favour”
. Equally, I am at a loss to identify the logic behind the respondent’s refusal to exercise discretion in the first appellant’s favour. I find the respondent’s approach to the first appellant’s case is ‘tick box’ decision making and not giving weight to the issues. In my view, a delay [sic] of one day should not have led to the applications being refused. 4. It is for the respondent to exercise discretion in the first instance. It is for this reason I remit the matters to the respondent. For my part I would have allowed the appeals in their entirety had the respondent … exercised discretion and exercised it differently. In these appeals common sense should prevail.”[8]The First-tier Tribunal judge then stated that the appeal was “remitted to the respondent for her to exercise discretion in favour of the appellants”, and that, “[to] that extent”, the appeals were allowed. He also made a whole fee award in favour of Ms Kaur and Mr Singh, observing that the Secretary of State’s “failure to exercise discretion caused these appeals to be lodged with the Tribunal”.

The Secretary of State’s appeal to the Upper Tribunal

[9]The Secretary of State sought permission to appeal to the Upper Tribunal on the grounds that the First-tier Tribunal had made a “material misdirection of law” in its determination, and that for it to remit the matter to her was a “clear error of law”. Paragraph 245ZX(d) of the Immigration Rules, it was submitted, “does not permit discretion reviewable by the judge, but is a clearly stated rule designed to ensure consistency of treatment”. Reference was made to section 86(6) of the 2002 Act, “which states that ‘refusal to depart from or authorise departure from immigration rules is not the exercise of a discretion’ …”.[10]On 14 July 2015 First-tier Tribunal Judge Simpson granted permission to appeal. In doing so, she identified the Secretary of State’s grounds as being, first, that the First-tier Tribunal judge had “made a material misdirection in law in allowing the appeals despite the fact that it was common ground that the first appellant had not had £2,560 in her account for 28 consecutive days to the 30 August 2014”, and secondly, that he had “erred in remitting the appeals [to] the Secretary of State as para. 245ZX(d) does not permit discretion reviewable by the Judge”. She observed that it had been “common ground that the first appellant was short by one day”, and that the First-tier Tribunal did “not have jurisdiction to allow the appeal, or to remit it to the Secretary of State to exercise a non-existent discretion”. She added that “[the] rule is simple – the money must be in the account for 28 days, not 27”. In her view, therefore, the Secretary of State’s grounds “review an arguable material error of law”.

The decision of the Upper Tribunal

[11]The appeal was heard by the Upper Tribunal on 7 October 2015. The appeal was presented on behalf of the Secretary of State by a Home Office Presenting Officer. Ms Kaur was represented by counsel, Mr Singer.[12]The Upper Tribunal judge recorded (in paragraph 3 of his decision) that “[permission] to appeal was granted on the basis that it was arguable that the judge did not have jurisdiction to allow the appeal, or to remit it to the Respondent to exercise a non-existent discretion, having found that Mrs. Kaur did not meet the requirements of the immigration rules as she had not had sufficient funds in her account for 28 consecutive days”.[13]Recording the submissions made on either side, the Upper Tribunal

judge summarized the submissions made on behalf of the Secretary of State (in paragraph 4):

“4. Mr. Kandola [the Home Office Presenting Officer] relied on the grounds of appeal. He submitted that there was no lawful basis for remitting the appeal under paragraph 245XD. There was no discretion under paragraph 245AA regarding evidential flexibility as this was not the case of a missing document. There was no issue of common law fairness or unfair treatment and the appeal should have been dismissed.”
[14]Counsel for Ms Kaur had submitted that “this was as near a near miss as could be imagined”. As had been explained in a witness statement of Mr Singh, “[the] funds had been in the control of the family and when Mr. Singh transferred the funds he assumed that they would reach his wife’s account quicker than they did” (paragraph 5). Counsel had contended that “although [the judge] might have exercised his discretion in a way which was inelegant, uppermost in his mind were the issues of common law fairness, proportionality under Article 8 and the fact that the Respondent had failed to consider granting leave in the circumstances”. That, counsel had suggested, was because the First-tier Tribunal judge had “wanted the Respondent to consider whether the decisions were proportionate under Article 8” (paragraph 6). Counsel had accepted, however, that “there was no reference in the decision either to Article 8 or to the common law duty of fairness” (paragraph 7). In reply, the Home Office Presenting Officer had submitted that, given it had been accepted that the requirements of the Immigration Rules had not been met, it was impossible to say the Secretary of State’s decision had not been in accordance with the law. He relied on the decision of the Court of Appeal in EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517 (paragraph 9).[15]Under the heading “Error of law decision”, the Upper Tribunal

judge said (in paragraphs 11 to 13):

“11. I found that the decision involved the making of an error on a point of law. The judge did not have discretion to remit the appeal for failure to meet the requirements of the immigration rules. It is clear from the decision, and it is accepted by the Appellants, that they did not meet the requirements of the immigration rules, as Mrs. Kaur had the funds in her account for 27, not 28 days. The judge remitted the appeals without reference either to Article 8 or having found that the decision was unlawful as being unfair at common law. It is not at all clear from the decision on what basis he remitted the appeals to the Respondent. 12. Article 8 was raised in the grounds of appeal before the First-tier Tribunal but the judge did not go on to consider Article 8. He gave no reasons for his failure to consider the appeals under Article 8, but the issue had been raised by the Appellants in the grounds of appeal before him. 13. I announced that I found the decision involved the making of an error of law. I proceeded to remake the decision.”
[16]In the part of his decision headed “Decision on remaking”, the Upper Tribunal judge said it was “accepted that the Appellants cannot meet the requirements of the immigration rules for failure to meet the financial requirements of paragraph 245XD”, and accordingly he dismissed the appeals under the Immigration Rules (paragraph 14). He found there was “no culpability” on the part of the Secretary of State “such as to lead to a finding that there was any unfairness in the decision”. Ms Kaur had “failed to meet the requirements of the rules for a reason in her control”, and had “failed to arrange her finances such that the necessary funds were in her account for 28 days” (paragraph 15). When he considered the appeals under article 8 of the Human Rights Convention, he noted that it had not been submitted that the Secretary of State’s decision was a breach of Ms Kaur and Mr Singh’s “right to family life”, and found it did “not interfere with their family life” (paragraph 16). He accepted that they had “established a private life sufficient to engage the operation of Article 8” (paragraph 17). He found, however, that “the proposed interference with this private life would be in accordance with the law, as being a regular immigration decision taken by UKBA in accordance with the immigration rules”, and that “the level of interference would not be significant and … would be proportionate” (paragraph 18). He took account of the provisions of section 117B of the 2002 Act, observing that Ms Kaur and Mr Singh had “had the required funds between them, but they had not arranged their finances properly for the purposes of paragraph 245XD …” (paragraph 20), and that, as had been pointed out in Patel v Secretary of State for the Home Department [2013] UKSC 72 (by Lord Carnwath in paragraph 56 of his judgment) “a near-miss under the rules cannot provide substance to a human rights case which is otherwise lacking in merit” (paragraph 21). He concluded (in paragraph 26):
“26. There is a significant public interest in refusing leave to remain to those who have not satisfied the requirements of the immigration rules. I find, taking into account all of the circumstances of the Appellants, that they have failed to show on the balance of probabilities that the decision is a breach of their rights to a private life under Article 8 or indeed any other rights protected by the Human Rights Act 1998.”

Should permission to appeal to this court be granted?

[17]The amended grounds of appeal, prepared after the hearing before McFarlane L.J. on 13 February 2017, are:
“(i) The UT was wrong to set-aside the decision; and/or (ii) Having done so, the UT was wrong to go on to consider the Appeal in relation to the exercise of discretion.” (ii) Having done so, the UT was wrong to go on to consider the Appeal in relation to the exercise of discretion.”
[18]In his skeleton argument in support of those two grounds, Mr Rajiv Sharma –who also appeared for Ms Kaur in the First-tier Tribunal but not in the Upper Tribunal –submitted that the First-tier Tribunal judge had clearly approached his decision on the basis that the Secretary of State had failed to consider the exercise of his discretion outside the Immigration Rules and should now do so. The Secretary of State’s appeal to the Upper Tribunal had therefore been misconceived. The contention that remitting the matter to her was an error of law because paragraph 245ZX(d) “does not permit discretion reviewable by the judge” was to suggest – incorrectly, submitted Mr Sharma – that the First-tier Tribunal judge had “reviewed discretion for himself”. The same mistake had been made by First-tier Tribunal Judge Simpson in granting permission to appeal, by the Home Office Presenting Officer in his submissions to the Upper Tribunal, and by the Upper Tribunal judge himself in paragraph 11 of his decision. The First-tier Tribunal judge had recognized that there was no relevant discretion under the Immigration Rules. Properly understood, the effect of his decision was to remit Ms Kaur’s application to the Secretary of State for consideration outside the Immigration Rules (see, for example, R. (on the application of Thebo) v Entry Clearance Officer Islamabad (Pakistan) [2013] EWHC 146 (Admin)). That involved no error. The First-tier Tribunal’s decision should not have been set aside by the Upper Tribunal, and it ought not have been remade. Mr Sharma relied on the decision of the Upper Tribunal in Ukus (discretion: when reviewable) [2012] UKUT 00307 (IAC), the decision of the Upper Tribunal in Castro (Removals: s.47 (as amended)) [2014] UKUT 00234 (IAC), the Court of Appeal’s decision in R. (on the application of Alladin) v Secretary of State for the Home Department [2014] EWCA Civ 1334, and the decision of the Upper Tribunal in R. (on the application of Patel) v Secretary of State for the Home Department (duration of leave – policy) IJR [2015] UKUT 00561 (IAC).[19]In his oral submissions Mr Sharma made it clear that he was not seeking to invoke the jurisprudence in cases involving the concept of a “near-miss” or “evidential flexibility” under paragraph 245AA of the Immigration Rules (see the decision of the Supreme Court in Mandalia v Secretary of State for the Home Department [2015] 1 W.L.R. 4546, and the judgment of Underhill L.J. in Mudiyanselage v Secretary of State for the Home Department [2018] EWCA Civ 65, at paragraphs 36 to 56). The burden of his argument was that the Upper Tribunal had proceeded on the basis of a “misidentification” of what the First-tier Tribunal had done. The First-tier Tribunal judge had understood that there was no relevant discretion within the Immigration Rules. His decision was predicated on the conclusion that the Secretary of State should not simply have refused the application, but ought to have gone on to exercise a discretion outside the Immigration Rules. This, Mr Sharma submitted, was consistent with the provisions of section 86(3) of the 2002 Act, which state that, on an appeal under section 82(1), section 83 or section 83A, “[the] Tribunal must allow the appeal in so far as it thinks” that either “(a) a decision against which the appeal is brought … was not in accordance with the law (including immigration rules)” or “(b) a discretion exercised in making a decision against which the appeal is brought … should have been exercised differently”.[20]Those submissions were put to us forcefully, but I cannot accept that they provide a properly arguable basis for an appeal to this court.[21]The first – and, I think, fatal – difficulty for Mr Sharma’s argument is that the First-tier Tribunal judge did not clearly identify how the Secretary of State’s refusal of Ms Kaur’s application for further leave to remain was unlawful. As was submitted by Mr Nicholas Chapman on behalf of the Secretary of State,his decision seems ambiguous on that basic point. In substance, his criticism of the Secretary of State’s decision was of her “refusal to exercise discretion in [Ms Kaur’s] favour”, that her “approach” to Ms Kaur’s case had been “‘tick box’ decision making …” (paragraph 3), and that it was “for [her] to exercise discretion in the first instance” (paragraph 4). He remitted the matter to the Secretary of State “for her to exercise discretion in favour of [Ms Kaur and Mr Singh]”. But whether he thought the “discretion” that the Secretary of State had not exercised was a discretion provided within the Immigration Rules or a discretion outside the rules is unclear. His conclusions do not address that question.[22]It was, and is, common ground that Ms Kaur had failed to meet the relevant requirements of the Immigration Rules. She had failed to provide bank statements showing the necessary funds for the specified period of 28 days. That was not in dispute either before the First-tier Tribunal or before the Upper Tribunal, or before us. And no application was made for leave to remain for any reason not covered by the Immigration Rules, nor at any stage was the Secretary of State asked to exercise a discretion outside the rules.[23]The decision against which Ms Kaur appealed to the First-tier Tribunal was not a decision refusing leave to remain for a reason not provided for in the Immigration Rules. As Mr Chapman submitted, the appeal to the First-tier Tribunal could only be against the decision that was in fact made, not against one that hypothetically might have been made.[24]Paragraph 245ZX was in mandatory terms. Any application for leave to remain as a Tier 4 (General) Student, or as a dependant, that did not meet its requirements had to be refused. This is a reflection of the necessary certainty, consistency and predictability of decision-making on such applications under the points-based system (see, for example, the judgment of Beatson L.J. in R. (on the application of Sayaniya) v Upper Tribunal (Immigration and Asylum Chamber) and Secretary of State for the Home Department [2016] EWCA Civ 85, at paragraphs 16 to 35; and the judgment of Sharp L.J. in Secretary of State for the Home Department v KG (India) [2016] EWCA Civ 477, at paragraphs 26 to 33).[25]The premise in Mr Sharma’s argument that the First-tier Tribunal did not err in law in upholding Ms Kaur’s appeal and remitting the matter to the Secretary of State appears to be that, in the circumstances of this case, the Secretary of State was obliged to exercise a residual discretion to grant leave to remain outside the Immigration Rules even though she was not asked to do so, and, indeed, that it was “illogical” and “irrational” for her not to do so.[26]I do not accept that that argument is tenable. There was no legal obligation on the Secretary of State to exercise discretion outside the Immigration Rules in Ms Kaur’s case. If Ms Kaur, or Mr Singh, had wanted to invite the Secretary of State to exercise her discretion outside the Immigration Rules they could have made an application in which they invited her to do so. Neither of them did that, even after the Secretary of State had made the decision against which Ms Kaur chose to appeal to the First-tier Tribunal.[27]Pertinent here are the authorities on which Mr Chapman relied. For example, in R. (on the application of Behary) v Secretary of State for the Home Department and R. (on the application of Ullah) v Secretary of State for the Home Department [2016] EWCA Civ 702, also a case concerning applications under paragraph 245ZX of the Immigration Rules, Burnett L.J., as he then was, said (in paragraph 38 of his judgment) that “there is no doubt that there is a general discretion to grant leave to remain in the United Kingdom outside the Rules”. In that case the Secretary of State had not been requested to exercise that discretion – and had not done so. It was submitted, however, essentially because the application in question was “a very near miss”, that there was a realistic prospect of discretion being exercised in the appellant’s favour “were the matter to be given explicit consideration …”. Burnett L.J. rejected the argument that, in the circumstances, the Secretary of State had erred in not exercising the discretion. He said (in paragraph 39):
“39. In my view there was no obligation upon the Home Office to consider the grant of leave to remain outside the Rules in Mr Ullah’s case. There is an obligation to consider such a grant when expressly asked to do so and, if but briefly, deal with any material relied upon by an applicant in support. Outside cases where there has been a request there may exist, at least in theory, cases where the facts are so striking that it would be irrational in a public law sense not to consider the grant of leave outside the Rules or at least seek clarification from the applicant whether he was seeking such leave. Mr Ullah, who had the benefit of professional assistance, sought leave to remain as a Tier 4 (General) Student. He made no application for leave outside the rules. There is nothing about his circumstances that could engage a public law duty to consider the exercise of the discretion. Moreover, his argument seeks to resurrect the de minimis or near miss argument on which he failed at first instance and, in the face of the recent decision of this court in [KG (India)], which he abandoned in this appeal. The Home Office has expended much energy in recent years to resist attempts by applicants to persuade the courts that there exists a legal principle that a near miss in complying with the Rules in cases such as this should be overlooked. The de minimis argument is a variation upon that theme. Had the Home Office been asked expressly to exercise its discretion outside the Rules, it is to my mind inconceivable that the response would have been positive.”
[28]Observations to similar effect have been made, for example, in R. (on the application of AB) v Secretary of State for the Home Department [2018] EWCA Civ 383 (in the judgment of Leggatt L.J., at paragraphs 45 to 48), and in Sayaniya (in the judgment of Beatson L.J., at paragraphs 40 and 41).[29]In my view it was not open to the First-tier Tribunal judge to conclude either, for the purposes of section 86(3)(a), that the decision against which the appeal before him had been brought was “not in accordance with the law (including immigration rules)” or, for the purposes of section 86(3)(b), that “a discretion exercised in making a decision” against which the appeal had been brought “should have been exercised differently”. This case, in truth, fell into neither of those two categories. The Secretary of State’s decision could not be regarded as a decision “not in accordance with the law (including the immigration rules)”. It accorded with the law, and with the applicable provisions of the Immigration Rules. And no discretion had been exercised in making it. Under section 86(6) a refusal to depart from the Immigration Rules “is not the exercise of a discretion for the purposes of subsection (3)(b)”. The First-tier Tribunal ought therefore to have dismissed the appeal (section 86(5)).[30]On that straightforward analysis it seems clear that the First-tier Tribunal’s decision was incorrect in law, and that the Upper Tribunal judge was right to allow the Secretary of State’s appeal, and to proceed to remake the decision, which, in my view, he did unimpeachably.[31]I would reject Mr Sharma’s submission, unheralded either in the amended grounds of appeal or in his skeleton argument, that the Upper Tribunal could not properly entertain and determine the Secretary of State’s appeal on the basis it did – because the Secretary of State had misconstrued the First-tier Tribunal’s decision and its grounds of appeal were therefore misconceived, as was First-tier Tribunal Judge Simpson’s grant of permission to appeal on those grounds. The short answer to this submission, in my view, is that the grant of permission to appeal did not so circumscribe the Upper Tribunal’s jurisdiction as to prevent it considering whether the approach adopted by the First-tier Tribunal judge was mistaken.[32]The appellate jurisdiction of the Upper Tribunal is provided in Part 1 of the Tribunals, Courts and Enforcement Act 2007. Section 11(1) provides that the “right of appeal” to which subsection (2) refers is “a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision”. The right of appeal may only be exercised with permission given either by the First-tier Tribunal or by the Upper Tribunal on an application made by the party seeking to exercise it (section 11(3) and (4)). There is scope for permission to be sought and obtained for the amendment of grounds after permission to appeal has been granted (see the decision of the Upper Tribunal (Immigration and Asylum Chamber) in Ferrer v Secretary of State for the Home Department [2012] UKUT 00304 (IAC), at paragraphs 24 to 27, referring to the provisions of rule 5(3)(c) of the Tribunal Procedure (Upper Tribunal) Rules 2008). Section 12(1) and (2) of the 2007 Act provide that if the Upper Tribunal “finds that the making of the decision concerned involved the making of an error on a point of law”, it “may … set aside the decision of the First-tier Tribunal”, and, if it does that, it “must” either “remit the case to the First-tier Tribunal with directions for its reconsideration” or “re-make the decision”. The jurisdiction of the Court of Appeal on an appeal from a decision of the Upper Tribunal, under sections 13 and 14 of the 2007 Act, includes the power to set aside the decision of the Upper Tribunal and either remit the case to the Upper Tribunal or remake the decision (section 14(2)).[33]At our invitation, Mr Chapman formulated, in writing, an amended ground of appeal against the decision of the First-tier Tribunal, lest we should conclude that the Upper Tribunal’s decision involved the making of an error of law and set aside that decision with a view to remaking it under section 14. The amended ground of appeal was:
“The First-Tier Tribunal was in legal error in allowing the Appellants’ appeal on the basis that [the] Respondent had unlawfully failed to consider the exercise of discretion to allow their applications, because (a) no such discretion existed under the Immigration Rules; and (b) the Applicants had not asked the Respondent to consider exercising her residual discretion outside the Immigration Rules and consequently she was under no legal obligation to do so.”
[34]I see no need for such an amendment to the Secretary of State’s grounds of appeal as they stood before the Upper Tribunal. In my view the grounds as originally framed, on which First-tier Tribunal judge Simpson granted permission, and on which the Upper Tribunal judge determined the Secretary of State’s appeal, were sufficient to raise the relevant “point of law” now articulated in the amended ground drafted by Mr Chapman.[35]The starting point here is that the First-tier Tribunal judge’s decision was not fully or lucidly reasoned. It did not identify clearly how the Secretary of State was considered to have dealt with Ms Kaur’s application unlawfully, and, in particular, whether the discretion referred to was thought to be a discretion within or outside the Immigration Rules. This being so, some uncertainty as to the true basis for the decision of the First-tier Tribunal would have been understandable. In any event the Secretary of State’s grounds of appeal were, I think, pleaded in appropriate terms to put in issue the crucial question, which was whether the First-tier Tribunal judge had misdirected himself as to the existence and exercise of a relevant discretion, whether in the Immigration Rules or outside them.[36]This was plainly a “point of law” fit for consideration of the Upper Tribunal. It was, I think, embraced in the original grounds of appeal to enable the Upper Tribunal judge to proceed as he did. He was entitled, on the grounds of appeal as pleaded, and as presented to him on behalf of the Secretary of State and contested on behalf of Ms Kaur and Mr Singh, to reach the conclusion he did in paragraph 11 of his decision – that the First-tier Tribunal had made an “error on a point of law” in allowing the appeal against the Secretary of State’s decision and remitting the matter to the Secretary of State for redetermination. That, it seems to me, was a sound conclusion for the Upper Tribunal to reach, and indeed the only correct conclusion, given that it had been accepted on behalf of Ms Kaur that the requirements of the Immigration Rules had not been met. In the circumstances there was no need for the Upper Tribunal judge to add, though he could have done, that the decision of the Secretary of State that had been the subject of the appeal to the First-tier Tribunal was not vitiated by her failure to exercise a discretion outside the rules, which she had not been asked to exercise in the course of making that decision – or indeed in any further application.

Conclusion

[37]For those reasons I would refuse permission to appeal to this court.[38]I agree.[39]I also agree.