Where the Secretary of State makes an error of law in a decision which is then appealed to the tribunal, does the tribunal have to allow that appeal on the basis that the decision contains an error of law?
Not unless the decision as a whole is unlawful, finds the Court of Appeal in Singh (India) v Secretary of State for the Home Department  EWCA Civ 362 (24 May 2017).
Mr. Singh’s case was weak. He arrived in 2001 as a visitor for 6 months. He overstayed, and later made two Hail Mary applications in 2010 and 2012 to regularise his stay based on, apparently, little more than the time he had spent in the UK. Both of these applications were, unsurprisingly, rejected.
That second application was made on 5 July 2012, four days before the introduction of substantially redrafted immigration rules on 9 July 2012. When the Secretary of State came to consider the application she erred in doing so under the new rules, instead of the rules in place at the time the application was made.
Decisions of the tribunals
The initial tribunal rejected the appeal, applying the Razgar test and finding that the case lacked merit. The appellant appealed to the Upper Tribunal on the sole basis that the third step of the test – that the decision was made in accordance with the law – was not satisfied.
The Upper Tribunal agreed that this constituted an error of law, and that this was contained within both the initial decision of the Secretary of State, and also the FTT determination. However, the UT did not find that it was necessary to remit the decision back to the Secretary of State for a fresh decision, holding that
A decision that is not in accordance with the law does not automatically need [to] go back to the drawing board; this will depend upon what additional purpose is to be served by doing so
The UT took the view that any application remitted to the Home Office would not be decided any differently, and that the outcome of the case as a whole was never in doubt.
Onward appeal to the Court of Appeal
When the appeal against this decision was heard over three years later, the question for the Court of Appeal was whether or not this approach was lawful.
The appellant relied in particular on the old s.86(3) s.86(6) Nationality Immigration Asylum Act 2002 which, for those requiring refreshment, read as follows:
(3) The Tribunal must allow the appeal in so far as it thinks that—
(a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or
(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.[…]
(6) Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b)
The main thrust of the argument was that, on a proper construction of section 86(3), the law requires the tribunal to allow an appeal if it finds that the decision under appeal is not in accordance with the law. This is the effect of the word ‘must’ in s.86(3). As pointed out by the court :
The construction of section 86(3) that the appellant contends for would create an obligation on the tribunal to mark any part of a decision that is not in accordance with the law with an order that allows an appeal against it, despite its lack of materiality in the end result.
Decision of the Court
The Court of Appeal reframed the question which, it said, was implicit in the appellant’s grounds of appeal:
how should the immigration and asylum tribunal approach a decision made on behalf of the Secretary of State which it is said breached the appellant’s article 8 rights when a human rights decision outside the Rules is challenged on appeal?
In answering its own question, Ryder LJ giving lead judgment, explained that the question had been arguably decided as long ago as R (Huang) v Secretary of State for the Home Department  2 AC 167. He elaborates [31-32]:
It is as a consequence now well established that in human rights cases the tribunal will consider the evidence that is relevant to the decision in question at the date of the hearing. Its task is to consider the evidence afresh. The tribunal accords appropriate weight to the judgment of the decision maker who has access to specialist sources of knowledge and advice while at the same time exercising a merits jurisdiction on all of the evidence properly available to it.
When doing so the tribunal is not limited to a secondary reviewing function such as would be appropriate in judicial review unless Parliament constrains the function of the tribunal in that or any similar way. Parliament has done so on more than one occasion, for example by removing a right of appeal or by imposing a judicial review test rather than a merits test upon certain appeals. When not so constrained, the tribunal is part of the decision-making process. Its appellate function is an extension of the decision making function. The tribunal stands in the shoes of the decision maker. It is independent of the Executive but undertakes the same task by applying the Immigration Rules and such other policy guidance as the Executive may lawfully promulgate within the statutory scheme. The tribunal may differ from the Secretary of State’s view about a particular public interest that is in play in a particular case but must always in so doing provide a reasoned conclusion including by reliance upon country guidance or other authoritative specialist materials.
But what about the ‘must’ in s.86(3)?
The court finds that this provision must be read down, in line with the law cited regarding the role of the tribunal as a secondary decision-maker, to mean that
a decision of the Secretary of State is not in accordance with the law within the meaning of section 86(3)(a), with the consequence that the appeal must be allowed, only when it is the decision read as a whole which is unlawful.
The court therefore imports a materiality test, requiring consideration of whether the error of law would have made a difference to the outcome of the decision as a whole before invoking the ‘must’ of s.86(3). In this case, the Court of Appeal agreed with the Upper Tribunal that the overall decision was not unlawful, and dismissed the appeal.