Case No: C5/2010/0571
Neutral Citation Number: [2010] EWCA Civ 1619
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL 
[AIT No: IA/17350/2008; IA/17351/2008; IA/17352/2008; IA/17353/2008]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 16th November 2010

Before:

LORD NEUBERGER MR
 LORD JUSTICE CARNWATH 
and
LORD JUSTICE SULLIVAN
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Between:

	KR (NEPAL)	Appellant	
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SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Respondent	

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Mr Richard Singer (instructed by the Messrs Gummer & Singh) appeared on behalf of the Appellant.

Mr Oliver Sanders (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
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Judgment
Lord Justice Sullivan:

1.	This is an appeal with the permission of the Upper Tribunal against the determination promulgated on 16th December 2009 by Immigration Judge Robinson dismissing the four Appellants’ appeals against the decision of the Respondent dated 3 October 2008 to refuse the first appellant’s application for leave to remain in the United Kingdom as a student, and his wife and two children’s applications to remain as his student dependants.

2.	The appellants are citizens of Nepal.  The respondent refused the first appellant’s application because he was not satisfied that the appellant could show evidence of satisfactory progress in his course of study, which at that stage was a BSc information systems course at the Boston College of London.  The appellant’s appeal against that decision was first considered by Immigration Judge Hembrough who dismissed the appeal in a determination promulgated on 2 December 2008.  Reconsideration was ordered and that reconsideration was carried out by Immigration Judge Robinson in the determination which is the subject of this appeal.

3.	Again, the first appellant’s appeal was dismissed.  Immigration Judge Robinson concluded that the first appellant had demonstrated that he had made satisfactory progress in his courses but then dismissed the appeal on the basis that the appellant did not meet the requirements of paragraph 57(iv) of the Immigration Rules because he was not registered as an external student with the UK degree awarding body.  

4.	The appellants applied to the Upper Tribunal for permission to appeal against that determination.  The grounds of appeal contended that Immigration Judge Robinson had failed to address the submission made on behalf of the first appellant that between the first and second stage reconsiderations of this appeal he had enrolled on a new course, an MSc course of civil engineering at the University of Surrey.  It was submitted in the grounds of appeal that: 

“…the error of law is twofold, firstly the learned IJ’s failure to address counsel’s submission on the section 85(4) point [matters post-dating the Secretary of State’s decision may have been considered by the Tribunal] in its determination and secondly, had the learned IJ addressed counsel’s submission on the section 85(4) point the appeal would have been allowed and or remitted to the respondent for further consideration.” 

5.	The skeleton argument in support of the grounds merely submitted that the appeal should be allowed in respect of all the appellants.  The Upper Tribunal granted permission to appeal on 23 February 2010.  The Upper Tribunal said inter alia that it appeared that Immigration Judge Robinson had accepted that the first appellant had enrolled on the MSc course but had then ignored that matter and had thus failed to consider the situation as at the date of the hearing   on 3 December 2009. 

6.	In section 7 of the appellant’s notice filed on 10 March 2010 the appellants asked this court to set aside the determination.  They did not ask this court to substitute any other order.  The answer to the relevant question in section 7 of the notice of appeal is not applicable.

7.	On 22 June 2010 the Treasury Solicitor wrote to the appellant’s solicitors agreeing “that this matter should be remitted to the Upper Tribunal for reconsideration”.  A draft consent order to that effect and a statement of reasons were enclosed with the letter.  The statement of reasons briefly summarised the procedural history, set out the reasons why the Upper Tribunal had granted permission to appeal to this court, and concluded:

“The Respondent agrees that it is arguable that there was a material error of law.  Therefore, it is agreed between the parties that the matter should be remitted to the Upper Tribunal of the Immigration and Asylum Chamber for reconsideration.”

8.	After various chasing letters the appellant’s solicitors eventually replied to the Treasury Solicitor in a letter dated 28 October 2010.  That letter had been preceded by a number of telephone conversations.  However, the letter said that the consent order and statement of reasons submitted by the Treasury Solicitor were not acceptable to the first appellant.  The letter continued:

“You will note s.103B (4) Nationality, Immigration and Asylum Act 2002 confers various powers on the Court of Appeal.  These powers are not limited to only remitting the matter back to the Immigration and Asylum Chamber.  In accordance with s.103B(4)(b) of the Nationality, Immigration and Asylum Act 2002 the Court of Appeal may also ‘…make any decision which the Tribunal could have made’.  This is also affirmed at Part 52.10 CPR.  

Therefore it is respectfully submitted that the Court of Appeal has the power to allow the appeal and grant the Appellant with leave to remain in the United Kingdom should it find the appeal in favour of the appellant.”

The letter then said that costs should follow the event so the respondent should pay the appellants’ costs.

9.	There is no dispute that Immigration Judge Robinson’s determination must be set aside.  Equally there is no dispute that if it sets aside the Tribunal’s determination.  This court may remit the case to the Upper Tribunal or it may exercise the powers of the AIT, now the First-tier Tribunal (Immigration and Asylum Chamber), and allow the appeal against the Secretary of State’s decision (see Tribunals, Courts and Enforcement Act 2007 s.14 and CPR Rule 52.10).  

10.	Mr Singer accepts on behalf of the appellant that the court may not on any basis grant the appellant leave to remain.  Whether leave to remain in the United Kingdom should be granted and if so on what terms and for how long is a matter for the Secretary of State to decide having regard to the outcome of the appellant’s appeal against the Secretary of State’s decision and the circumstances as they pertain at that time.

11.	It can be seen that the consent order agreeing to the remittal of the matter to the Upper Tribunal gave the appellants all that they had sought in the notice of appeal to this court, that is to say, the setting aside of the 2009 determination with no order made in substitution therefore.  The grounds of appeal have contended that if the submission that Immigration Judge Robinson had failed to take into consideration counsel’s submission was accepted, then the appeal would have been allowed and/or the matter would have been remitted for further consideration.  The latter is plainly correct, but it is a curious feature of Immigration Judge Robinson’s determination that the Immigration Judge recorded the appellant’s evidence that he had embarked on the MSc engineering course but then made no finding in respect of that evidence and indeed made no further reference to it in the analysis of the evidence or in the conclusions reached in respect of the evidence, hence the understandable ground of appeal that the Immigration Judge simply failed to consider the submission.  

12.	Against this background the appellant’s determination to reject the consent order and to press on with the appeal is in my judgement misconceived.  Since the Tribunal is the fact-finding body, the normal course would be to remit the matter for reconsideration by the Tribunal if there has been some error in the Tribunal’s determination.  While this court does have the power to substitute its own decision for that of a tribunal, it will as a general rule do so only if there are clear findings of fact by the Tribunal which are undisputed and which as a matter of law admit of only one answer to the appeal. 

13.	In the present case, notwithstanding Mr Singer’s submissions, I am not persuaded that there are any such findings because Immigration Judge Robinson simply failed to consider the submission that had been made on behalf of the appellant that he had enrolled on the MSc engineering course at Surrey University.  

14.	Mr Singer submits that had the Immigration Judge found that evidence not to be credible then surely he would have said so.  Equally it can be said that had the Immigration Judge found that evidence to be credible then surely that too would have been said and the implications of such a finding would have been dealt with in the Immigration Judge’s conclusions in the determination.  It is an unfortunate fact that the Immigration Judge simply failed to make any findings in respect of this matter, and since this case, as with so many others, is fact-sensitive and it is for the Tribunal to find the facts, the appropriate course is to remit the matter back to the Tribunal.  

15.	There is a final argument in favour of adopting that course.  In cases like this the Tribunal and indeed the Secretary of State are faced with a moving target.  It is to be noted that according to Immigration Judge Robinson’s determination the appellant told Immigration Judge Robinson that he intended to go back to Nepal when he had finished his Masters’ course at Surrey University.  That course was due to be completed in October 2010 (see paragraphs 7 and 8 of Immigration Judge Robinson’s determination).  According to a recent witness statement dated 8 November 2010 by the appellant that the MSc course has finished, he completed that course successfully and is now studying for a new course, the ACCA.  He started that course on 27 October 2010 and will complete it on 4 July 2014.  There is therefore a wholly new set of facts to be considered and the Secretary of State will have to consider that new factual situation when deciding whether leave to remain should be granted as a student and if so on what terms and for what period.  

16.	The respondent has conceded that it is arguable that Immigration Judge Robinson materially erred in law in failing to consider the MSc course among other matters.  In my judgement this pragmatic approach on behalf of the respondent is to be welcomed.  This court does have a heavy workload and it is not a sensible use of court time to litigate at considerable expense the lawfulness of determinations which the respondent concedes may well be flawed.  The sensible course in such cases is to remit them for reconsideration by the Tribunal.  Any dispute as to costs can be dealt with by way of written representations.

17.	For these reasons I would allow the appeal to the extent that the 2009 determination is set aside and the matter is remitted to the Upper Tribunal for redetermination.  I would note that since the third and fourth appellants are children, we should also order that the appointment of a litigation friend can properly be dispensed with in the circumstances of this case.  It is plain that the children’s appeals are entirely dependent on the appeal of the first appellant.  

18.	So far as costs are concerned, while the appellant has pursued a matter that should not have been pursued in this court and which in some respects was a matter that the court was not able to grant in any event -- leave to remain -- it is also fair to observe that the respondent has resolutely refused to agree to pay the appellant’s costs while at the same time not being prepared to admit that there was an error of law, the admission merely being that it was arguable that there was a material error of law.  In those circumstances it seems to me that the appropriate order would be that there be no order as to costs.  Those are the orders that I for my part would make.

Lord Neuberger MR:

19.	I agree.  I just add two points.  First, in relation to the question of costs, Mr Sanderson, Treasury Solicitor for the Secretary of State, relied on what was said by Potter LJ in the case Sengoz v SSHD [2001] EWCA Civ 1135 to be the normal order where the Secretary of State has promptly responded.  I would be concerned if that were to be treated as covering all cases. 

20.	The other point is that I hope consideration will be given to cases to which the 2007 Act applies as to whether there is some procedural way of short-circuiting this without troubling the Court of Appeal at all, but I have not investigated that matter and do not propose to say any more about it in these proceedings.

Lord Justice Carnwath:

21.	I agree with both judgments.

Order: Appeal allowed