Entry Clearance Officer - Tashkent v Master AA

1. The respondent (hereafter “the claimant”) is a citizen of Uzbekistan born on 19 September 2004. On 10 May 2013 , the appellant , the Entry Clearance Officer, Tashkent ( hereafter “the ECO”) refused his application for entry clearance as a dependent child of his father, but on 20 May 2015 First-tier Tribunal (FtT) Judge Halliwell allowed his appeal against that decision. In allowing the appeal solely on Article 8 grounds the judge stated that where a person’s Article 8 rights were at issue he could look at circumstances as they stood at the date of hearing, notwithstanding the statutory restriction against doing so imposed by s.85(5) of the Nationality, Immigration and Asylum Act 2002 (“ the 2002 Act ”). The ECO was granted permission to appeal to the Upper Tribunal against that allowance, but in a determination notified on 29 September 2014 Deputy Upper Tribunal Judge (DUTJ) Juss dismissed that application and held that the decision of Judge Halliwell was not vitiated by legal error. 2. What happened next was that on 2 October 2014 the Home Office Presenting Officers Unit (POU) sent a letter headed “Application for review under rule 45 of the Tribunal Procedure (Upper Tribunal) Rules 2008 ” stating that the Secretary of State “makes an application, under rule 45(1) (a), and in accordance with rule 46, for a review of the decision, promulgated on 29 September 2014, by DUTJ Juss ” . In response to that letter UTJ Perkins directed that there be a hearing so that the UT could receive representations concerning this application and whether in the light of it to set aside the decision of DUTJ Juss. 3. Rules 45 and 46 provide: “ Upper Tribunal’s consideration of application for permission to appeal 45. – (1) On receiving an application for permission to appeal the Upper Tribunal may review the decision in accordance with rule 46 (review of a decision), but may only do so if— (a) when making the decision the Upper Tribunal overlooked a legislative provision or binding authority which could have had a material effect on the decision; or (b) since the Upper Tribunal’s decision, a court has made a decision which is binding on the Upper Tribunal and which, had it been made before the Upper Tribunal’s decision, could have had a material effect on the decision. (2) If the Upper Tribunal decides not to review the decision, or reviews the decision and decides to take no action in relation to the decision or part of it, the Upper Tribunal must consider whether to give permission to appeal in relation to the decision or that part of it. (3) The Upper Tribunal must [provide] a record of its decision to the parties as soon as practicable. (4) If the Upper Tribunal refuses permission to appeal it must [provide] with the record of its decision - (a) a statement of its reasons for such refusal; and (b) notification of the right to make an application to the relevant appellate court for permission to appeal and the time within which, and the method by which, such application must be made. (5) The Upper Tribunal may give permission to appeal on limited grounds, but must comply with paragraph (4) in relation to any grounds on which it has refused permission. [ Note: Word s in square brackets in paragraphs ( 3) and (4) were subs tituted from 1 November 2013 (SI 2013/2067). ] Setting aside of a decision 46. - (1) The Upper Tribunal may only undertake a review of a decision pursuant to rule 45(1) (review on an applica tion for permission to appeal). (2) The Upper Tribunal must notify the parties in writing of the outcome of any review and of any rights of review or appeal in relation to the outcome. (3) If the Upper Tribunal decides to take any action in relation to a decision following a review without first giving every party an opportunity to make representations, the notice under paragraph (2) must state that any party that did not have an opportunity to make representations may apply for such action to be set aside and for the decision to be reviewed again. ” [ Note : Paragraph (1) was substituted fr om October 2011 (SI 2011/2343).] 4. “R eview” is defined by rule 41 to mean the review of a decisi on by the Upper Tribunal under s ection 10 of the Tribunals, Courts and Enforcement Act 2007 (“ the 2007 Act ”) which provides: “10. Review of decision of Upper Tribunal (1) The Upper Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 13(1) (but see subsection (7)). (2) The Upper Tribunal's power under subsection (1) in relation to a decision is exercisable – (a) of its own initiative, or (b) on application by a person who for the purposes of section 13(2) has a right of appeal in respect of the decision. (3) Tribunal Procedure Rules may – (a) provide that the Upper Tribunal may not under subsection (1) review (whether of its own initiative or on application under subsection (2)(b)) a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules; (b) provide that the Upper Tribunal’s power under subsection (1) to review a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules is exercisable only of the tribunal’s own initiative; (c) provide that an application under subsection (2)(b) that is of a description specified for the purposes of this paragraph in Tribunal Procedure Rules may be made only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules; (d) provide, in relation to a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules, that the Upper Tribunal’s power under subsection (1) to review the decision of its own initiative is exercisable only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules. (4) Where the Upper Tribunal has under subsection (1) reviewed a decision, the Upper Tribunal may in the light of the review do any of the following – (a) correct accidental errors in the decision or in a record of the decision; (b) amend reasons given for the decision; (c) set the decision aside. (5) Where under subsection (4)(c) the Upper Tribunal sets a decision aside, the Upper Tribunal must re-decide the matter concerned. (6) Where the Upper Tribunal is acting under subsection (5), it may make such findings of fact as it considers appropriate. (7) This section has effect as if a decision under subsection (4)(c) to set aside an earlier decision were not an excluded decision for the purposes of section 13(1), but the Upper Tribunal’s only power in the light of a review under subsection (1) of a decision under subsection (4)(c) is the power under subsection (4)(a). (8) A decision of the Upper Tribunal may not be reviewed under subsection (1) more than once, and once the Upper Tribunal has decided that an earlier decision should not be reviewed under subsection (1) it may not then decide to review that earlier decision under that subsection. (9) Where under this section a decision is set aside and the matter concerned is then re-decided, the decision set aside and the decision made in re-deciding the matter are for the purposes of subsection (8) to be taken to be different decisions. [ Note : Subsection (3) in force from 19 September 2007 ( SI 2007/2709), Remainder in force from 3 November 2008 ( SI 2008/2696).] 5. Notwithstanding the terms of the aforementioned written application made by the Presenting Officer, Mr Deller joined Ms Allen in submitting that because the application had not been an application for permission to appeal but merely an application for review, it had no basis in law. They both asked that if we were in agreement on this matter we should give consideration to reporting this case so as to avoid any similar misunderstanding arising in the future. Application for permission to appeal as a condition precedent 6. We are in agreement with both representatives about this matter . R ule 45 entails that no issue of a review can arise under 45(1)(a) unless a party has first of all made an application for permission to appeal . We base this conclusion on a number of reasons. First the plain and ordinary meaning of rule 45(1)(a) (“ On receiving an application for permission to appeal …”) and of rule 46(1) (“ The Upper Tribunal may only undertake a review of a decision pursuant to r ule 45(1) (review on an applicatio n for permission to appeal) ” We observe that the same precondition for a review is applied by rules 34 and 35 of th e Tribunal Procedure Rules 2014. . Such wording admits of no discretion. Second , the clear purpose behind rule 45, which is to provide a filter mechanism to help ensure that obvious errors based on oversight of a legislative provision or binding authority can be corrected (and set aside under rule 47) without unnecessarily burdening the Court of Appeal. In R (RB) v First-tier Tribunal [2010] UKUT 160 (AAC) ; [2010] AACR 41 , a three-judge panel of the Upper Tribunal ( Carnwath LJ presiding) quoted in this regard paragraph 100 of the explanatory notes to the 2007 Act dealing with the power of review : “Sections 9 and 10 provide powers for the First-tier and Upper Tribunals to review their own decisions without the need for a full onward appeal and, where the tribunal concludes that an error was made, to re-decide the matter. This is intended to capture decisions that are clearly wrong, so avoiding the need for an appeal. The power has been provided in the form of a discretionary power for the Tribunal so that only appropriate decisions are reviewed. This contrasts with cases where an appeal on a point of law is made, because, for instance, it is important to have an authoritative ruling.”