Discretion in the First Tier Tribunal by Jonathan Holt
20 October 2017
Much to the frustration of applicants, the Secretary of State for the Home Departments (SSHD) enjoys a wide use of discretion in various aspects of her decision making ability. Prior to the amendments made to the appellate regime in 2014, it was relatively common for appellants to argue, as a ground of appeal in the First Tier Tribunal (FTT) that the SSHD had exercised her discretion wrongly. If the FTT was satisfied that the discretion should have been applied differently, there was not much argument against the FTT taking up the mantle and substituting the impugned decision with one that contained a positive use of discretion.
Since the commencement of the Immigration Act 2014, it is a common conception that this tribunal power has been lost to the FTT. This may not in fact be the case. In this guide, we will explore the SSHD’s use of discretion and what you can do if you are dissatisfied with its application.
Tip 1: Does discretion exist?
It is often not enough to rely upon the SSHD’s refusal letter to determine whether or not a power of discretion exists in relation to the refused application. Consider the question of Long Residence applications, commonly referred to as “the 10 year route”. Applicants frequently find themselves subject to a break in their “continuous lawful residence” that is relied upon by the SSHD to refuse their application. But, often, the SSHD will completely fail to refer to their guidance on this issue, and therefore completely fail to refer to the fact that there exists a discretion whereby the SSHD can ignore breaks of longer than 28 days in certain circumstances.
Consider also refusals made under paragraph 320 of the Immigration Rules. Here, the Immigration Rules themselves contain a discretionary element to the decision making process.
In many cases, simply reading the refusal letter would provide absolutely no evidence that such a discretion exists. It is only upon relatively close examination of the relevant published guidance that the discretion can be evidenced.
Tip 2: Ensure that the subject of the discretion is mentioned in the application.
Some applicants find themselves in a difficult position before the FTT: they rely upon circumstances which, it appears, give rise to an arguable positive exercise of discretion, but they have failed to mention these circumstances as part of their appeal, and are in fact only bringing these to light in their FTT witness statement, or later.
This can have adverse implications, both in terms of success at appeal or, alternatively, in costs. It is always best to ensure that the circumstances leading to the use of discretion are made clear in the application itself.
Tip 3: Has the SSHD actually exercised her discretion?
This is a fundamental question under the new, post-2014 appellate regime. The decision letter should be examined to determine whether the SSHD has purported to have engaged in the exercise of discretion. It is not sufficient for the SSHD to refer to a general discretion, or to exceptional circumstances generally; the decision letter should contain a direct reference to the discretionary power discovered in Tip 1.
At this point, this guide will split in two: one path for decisions that do contain a purported exercise of discretion, and another for decisions that fail to consider the discretion altogether.
Tip 4a: If the SSHD has not purported to have exercised her discretion, consider Greenwood No 2.
Prior to 2014 (and in some cases, afterwards as well) the FTT often considered that a failure to even purport to exercise a discretion meant that the impugned decision ought to be “remitted back” to the SSHD for a lawful decision to be made. Pleonasm aside, the President considers it unlikely that the FTT has the jurisdiction to remit a matter to a decision maker (see Greenwood (Automatic Deportation: Order of Events)  UKUT 00342 (IAC)). What was happening in these cases can be summarised as follows:
- The FTT had a power to allow or dismiss an appeal;
- If allowing an appeal, the FTT had the power to allow the appeal with directions;
- The SSHD must comply with those directions; and
- If the FTT allows an appeal of a decision that resulted from an application made by an individual, then it follows that the application is outstanding, awaiting a lawful decision.
So, whilst the FTT has no power to remit per se, allowing the appeal as above has the effect of remittal.
The question is: what remains of this power in a post-2014 tribunal system?
The President is of the view that paragraph 37 of Schedule 9 to the Immigration Act 2014 (effective from the 20th October 2014) has the effect of disabling the FTT’s power to allow an appeal with directions.
Importantly, however, the President is of the view that the FTT can still conclude that the decision under appeal is unlawful and not substitute another decision. This is, in effect, a “declatory decision”, and has the effect of requiring the SSHD to make a lawful decision on the outstanding application (See Greenwood (No 2) (para 398 considered)  UKUT 629). If the decision under appeal did not arise by the making of an application but was instead taken of the SSHD’s own motion, it will be a matter for the SSHD to decide whether or not to make a further decision. A deportation decision, for instance, would be such a decision.
It would therefore appear that, even in the new appellate regime, a failure to exercise discretion can still lead to the remedy of effective remittal. Of course, an appellant should always be warned about the choice to pursue such a course at appeal; if successful, delay is inevitable, as the appellant must wait for the respondent to make a further decision, which may in turn require further challenge.
Tip 4b: If the SSHD has purported to exercise discretion.
Under the old regime, section 84(i)(f) of the Nationality, Immigration and Asylum Act 2002 provided the following that an appeal could be brought where:
“the person taking the decision should have exercised differently a discretion conferred by immigration rules….”
(Note that the FTT’s power was therefore exercisable only where the discretion one vested by the Immigration Rules.)
For cases subject to the new appeal regime section 84(i)(f) no longer applies. An argument that a discretion has been exercised wrongly must therefore now be argued within the ambit of section 84(1)(3) of the 2002; that is to say, that the failure to exercise discretion correctly has led to a breach of an appellant’s Convention rights.
It seems that this is a logical extension of the principles of Mostafa (Article 8 in entry clearance)  UKUT 112; if satisfaction of the rules can amount to a “strong reason” to allow an article 8 appeal, then surely satisfaction of discretionary criteria can be similarly illuminating.
Jonathan is a barrister at Garden Court North Chambers.