Immigration Law & Conveyancing

What is a material error of law when appealing to the Upper Tribunal from the First Tier Tribunal?

Error of lawOr, to put it another way, if you lose your appeal at the First Tier Tribunal, and want to apply for Permission to Appeal to the Upper Tribunal, you must specify what the alleged material errors of law made are, in the decision you are challenging.

So, to answer the million dollar question? WHAT IS AN ERROR OF LAW? READ ON!

When making an application for permission to appeal to the Upper Tribunal from the First Tier Tribunal, the Tribunal will always consider obvious points, which are known as ‘Robinson’ obvious points (from the case that established the principle) arising under the Refugee Convention or Human Rights grounds.

However, whilst the Tribunal is duty bound to consider those obvious points, they will deal ‘brusquely and ‘robustly’ with an application that does not specify clearly and coherently the errors of law for the decision you are challenging, as, in their words, it places ‘unnecessary demands upon the judiciary’.

Nixon (permission to appeal: grounds) (2014) UKUT 368 (IAC)
In this case the appellant’s appeal on Article 8 family and private life was allowed, and the Secretary of State appealed.
The Judge, in granting permission, only stated that ‘ the grounds may be argued.’ The Appeal Procedure Rules states that the Tribunal MUST provide written reasons for it’s decision.

The test for granting Permission to Appeal is whether an arguable material error of law has been shown, i.e. one that would make a material difference to the outcome.

The Tribunal found that the application for permission to appeal did not satisfy those requirements, as it made no effort to specify the errors of law said to have been committed by the First Tier Tribunal. It used only vague language.

They include the following – failure to have regards to material evidence, taking into account and being influenced by by immaterial evidence, inadequate reasons, unfair procedure, misunderstanding or misconstruction of the law, disregarding a relevant statutory provision, failing to give effect to a binding decision of a superior court, and irrationality.

You cannot simply say that the Judge ‘erred in law, ‘erred’ or ‘misdirected him/herself in law’. You must specify the error(s) of law alleged and give brief particulars. If you don’t, it is likely your application will be refused.
It should not be difficult for Immigration lawyers who are used to drafting these applications on a regular basis to state their case clearly, but may be harder for unrepresented appellants.

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SRA No. 438620

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