S & Ors, R (on the application of) v First-Tier Tribunal (IAC)

S & Ors, R (on the application of) v First-Tier Tribunal (IAC)

The right of appeal under section 83 of the 2002 Act arises when an individual has made an asylum claim that has been refused and is subsequently granted leave to remain for a period exceeding one year, regardless of whether the grant of leave is simultaneous with the refusal or follows further submissions. The making of further submissions or a subsequent application does not extinguish the right of appeal arising from the earlier refusal. The statutory and procedural framework supports this interpretation, and the Secretary of State's administrative practice cannot override the statutory right.

Parties
Claimant: S; Claimant: D; Claimant: W; Defendant: First-tier Tribunal (IAC); Interested Party: Secretary of State for the Home Department
Jurisdiction
England and Wales
Judgment Date
01 February 2011
Procedural Posture
Judicial Review / Judgment After Substantive Hearing
Outcome
Application granted in S's case; permission granted and applications allowed in D and W's cases.
Legal Topics
Asylum Appeals, Statutory Interpretation, Right of Appeal, Indefinite Leave to Remain
Immigration Law Administrative Law Asylum Appeals Statutory Interpretation Right of Appeal Indefinite Leave to Remain

Case Brief

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Parties

S

Claimant

D

Claimant

W

Claimant

First-tier Tribunal (IAC)

Defendant

Secretary of State for the Home Department

Interested Party

Procedural Posture

Judicial Review / Judgment After Substantive Hearing

Legal Issues

  1. 1 Whether the grant of indefinite leave to remain after a prior refusal of asylum gives rise to a right of appeal under section 83 of the Nationality, Immigration and Asylum Act 2002
  2. 2 Whether a subsequent application or further submissions extinguish the right of appeal under section 83
  3. 3 Whether the timing of the grant of leave relative to the refusal of asylum affects the right of appeal

Ratio Decidendi

The right of appeal under section 83 of the 2002 Act arises when an individual has made an asylum claim that has been refused and is subsequently granted leave to remain for a period exceeding one year, regardless of whether the grant of leave is simultaneous with the refusal or follows further submissions. The making of further submissions or a subsequent application does not extinguish the right of appeal arising from the earlier refusal. The statutory and procedural framework supports this interpretation, and the Secretary of State's administrative practice cannot override the statutory right.

Court Disposition

Application granted in S's case; permission granted and applications allowed in D and W's cases.

Orders

  • The applications for judicial review are granted.
  • Permission to apply for judicial review is granted in D and W's cases.