Appeal to the Upper Tribunal
The Upper Tribunal (Immigration and Asylum Chamber) (UTIAC) is a superior court of record dealing with appeals against decisions (which are called determinations) made by the First-tier Tribunal (Immigration and Asylum Chamber) (F-tT). One of its principal purposes is to hear and decide appeals against decisions made by the First-tier Tribunal in matters of immigration, deportation, asylum, nationality and human rights.
An application for permission to appeal must first be made to the F-tT. If it is refused then a further application can be made to the Upper Tribunal. Where permission to appeal to the Upper Tribunal is granted, there will be either a hearing before one or more Upper Tribunal Judges or the case may be decided without an oral hearing on the papers available. In both situations, the first task is to decide whether the F-tT made an error of law on the basis on which permission has been granted.
The focus of the Upper Tribunal is therefore initially on the lawfulness of a decision of the F-tT. The Upper Tribunal cannot set aside a decision of the F-tT unless satisfied that the F-tT judge has made an error of law that requires the determination to be set aside. Examples of errors of law include situations where a judge has made a mistake about the meaning of the Immigration Rules; not followed a binding decision of a higher court; overlooked important evidence; made a decision that was not reasonably open to him or her on the evidence or where there has been unfairness in the way matters have proceeded.
If the Upper Tribunal decides that an error of law has been made by the F-tT and that the nature of the error means that the F-tT decision must be set aside it must either re-make the decision itself, at the same hearing or on a later date send the case back to the F-tT to be re-decided there (this is called “remitting the case”) or order the F-tT to rehear the case. The decision whether to send back the case to the F-tT is governed by the extent to which there needs to be further findings of facts made or where the effect of the error means that there was no fair hearing previously.
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