Kizhakudan v Secretary of State for Home Department

Kizhakudan v Secretary of State for Home Department

The Upper Tribunal erred in law by refusing to consider Article 8 ECHR and common law fairness when remaking the decision, mistakenly believing it could only do so if the First-tier Tribunal had erred in law on those grounds. The Upper Tribunal had discretion to consider new grounds and should have exercised it.

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 / Court of Appeal Judgment on Second Appeal From Upper Tribunal
Outcome
Appeal allowed
Legal Topics
Article 8 ECHR, Common Law Fairness, Tier 4 Student Sponsor Policy, Procedural Discretion
Immigration Human Rights Article 8 ECHR Common Law Fairness Tier 4 Student Sponsor Policy Procedural Discretion

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Parties

Joxin Kizhakudan

Appellant / Claimant

Secretary of State for Home Department

Respondent / Defendant

Procedural Posture

Immigration Appeal / Court of Appeal Judgment on Second Appeal From Upper Tribunal

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 the Upper Tribunal had discretion to consider new grounds not raised before the First-tier Tribunal
  3. 3 Application of common law fairness in immigration decision-making

Ratio Decidendi

The Upper Tribunal erred in law by refusing to consider Article 8 ECHR and common law fairness when remaking the decision, mistakenly believing it could only do so if the First-tier Tribunal had erred in law on those grounds. The Upper Tribunal had discretion to consider new grounds and should have exercised it.

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