Kizhakudan v Secretary of State for Home Department [2012] EWCA Civ 566 (02 May 2012)

Kizhakudan v Secretary of State for Home Department [2012] EWCA Civ 566 (02 May 2012)

The Upper Tribunal erred in law by refusing to consider Article 8 ECHR and common law fairness when remaking the decision after finding an error of law in the First-tier Tribunal. It wrongly believed it lacked jurisdiction to consider new issues unless a further error of law was found in respect of those issues. The matter should be remitted for reconsideration including Article 8 and fairness.

Citation
[2012] EWCA Civ 566
Parties
Appellant / Claimant: Joxin Kizhakudan; Respondent / Defendant: Secretary of State for Home Department
Jurisdiction
England and Wales
Judgment Date
02 May 2012
Procedural Posture
Immigration Appeal / Appeal From Upper Tribunal to Court of Appeal
Outcome
Appeal allowed
Legal Topics
Article 8 ECHR, Common Law Fairness, Tier 4 Student Sponsorship, Procedural Discretion
Immigration Human Rights Article 8 ECHR Common Law Fairness Tier 4 Student Sponsorship Procedural Discretion

Case Brief

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Parties

Joxin Kizhakudan

Appellant / Claimant

Secretary of State for Home Department

Respondent / Defendant

Procedural Posture

Immigration Appeal / Appeal From Upper Tribunal to Court of Appeal

Legal Issues

  1. 1 Whether the Upper Tribunal erred in refusing to consider Article 8 ECHR (private life) when remaking the decision after finding an error of law in the First-tier Tribunal
  2. 2 Whether common law fairness should be considered in the context of Tier 4 student sponsorship withdrawal

Ratio Decidendi

The Upper Tribunal erred in law by refusing to consider Article 8 ECHR and common law fairness when remaking the decision after finding an error of law in the First-tier Tribunal. It wrongly believed it lacked jurisdiction to consider new issues unless a further error of law was found in respect of those issues. The matter should be remitted for reconsideration including Article 8 and fairness.

Court Disposition

Appeal allowed

Orders

  • Decision of the Upper Tribunal set aside
  • Matter remitted to the Upper Tribunal for reconsideration including Article 8 ECHR and common law fairness