This judgment was handed down remotely at 10.00am on Friday 14 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Lady Justice Falk:
Introduction
- The Appellant, Lloyd Tomlinson, appeals against a dismissal by the Upper Tribunal ("UT") of an application for judicial review which challenged a decision to deny him entry clearance.
- Mr Tomlinson is a Jamaican national. In outline, he first came to the United Kingdom at the age of 18. He remained here without leave. Some 11 years later he was sentenced to five years in prison, following which he was deported to Jamaica. He subsequently married a British citizen and moved with her to France before she returned to the United Kingdom for medical reasons. When Mr Tomlinson's attempt to accompany his wife on her return failed, he applied to join her. The Respondent refused to revoke the deportation order but Mr Tomlinson's appeal on human rights grounds succeeded in the First-tier Tribunal ("FTT"), following which the deportation order was revoked.
- However, entry clearance was not provided and Mr Tomlinson was told that he still needed to apply for it. When he did so it was refused due to his conviction. Mr Tomlinson sought judicial review on grounds of abuse of process and on the basis that the denial of entry clearance was in any event unlawful or irrational. The UT refused his application, in essence because the FTT's decision concerned only the deportation order and because there was an adequate alternative remedy in the form of another appeal to the FTT.
- Mr Tomlinson now appeals to this court with the permission of Elisabeth Laing LJ. The appeal was expedited due to Mrs Tomlinson's medical issues, but tragically she died in November 2024, shortly after having given birth to a son. We were informed at the hearing that the child is currently with Mr Tomlinson in France.
Legal framework
- Section 3 of the Immigration Act 1971 relevantly provides:
"3. General provisions for regulation and control
(1) Except as otherwise provided by or under this Act, where a person is not a British citizen—
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act…
(5) A person who is not a British citizen is liable to deportation from the United Kingdom if—
(a) the Secretary of State deems his deportation to be conducive to the public good…
(6) Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so."
- Section 5(1) of the 1971 Act describes a deportation order as "an order requiring [a person] to leave and prohibiting him from entering the United Kingdom".
- Section 117C of the Nationality, Immigration and Asylum Act 2002 (the "NIAA") relevantly provides:
"117C. Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances…"
- The provisions of the Immigration Rules that deal with the revocation of deportation orders require their continuation, in the case of a sentence to imprisonment for at least four years, unless:
"…the continuation would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, or there are other exceptional circumstances that mean the continuation is outweighed by compelling factors." (Rule 391.)
Rule 390A, as applicable on the facts of this case, also has the effect that "exceptional circumstances" are required for the public interest in maintaining the deportation order to be outweighed by other factors.
- Rule 392 deals with the effect of revocation. It provides:
"392. Revocation of a deportation order does not entitle the person concerned to re-enter the United Kingdom; it renders him eligible to apply for admission under the Immigration Rules. Application for revocation of the order may be made to the Entry Clearance Officer or direct to the Home Office."
- Appendix FM to the Immigration Rules contains the rules governing, among other things, entry as the spouse of a British Citizen. It includes the following section on refusal of entry on grounds of suitability:
"Section S-EC: Suitability-entry clearance
S-EC.1.1. The applicant will be refused entry clearance on grounds of suitability if any of paragraphs S-EC.1.2. to 1.9. apply.
…
S-EC.1.3. The applicant is currently the subject of a deportation order.
S-EC.1.4. The exclusion of the applicant from the UK is conducive to the public good because they have:
(a) been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; or
(b) been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 12 months but less than 4 years, unless a period of 10 years has passed since the end of the sentence; or
(c) been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 12 months, unless a period of 5 years has passed since the end of the sentence.
…"
- In the same Appendix, Article 8 of the European Convention on Human Rights (the "Convention") is relevantly referenced as follows:
"GEN.3.2(1) … where an application for entry clearance or leave to enter or remain made under this Appendix … does not otherwise meet the requirements of this Appendix or Part 9 of the Rules, the decision-maker must consider whether the circumstances in sub-paragraph (2) apply.
(2) Where sub-paragraph (1) above applies, the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.
…"
- The similarity between GEN 3.2(2) of Appendix FM and rule 391, which deals with revocation of deportation orders, will be noted. Both refer to the need for "exceptional circumstances". Rule 391 refers to the continuation of the order being contrary to Convention rights or there being "other exceptional circumstances" such that continuation is outweighed by "compelling factors". GEN 3.2(2) refers to "exceptional circumstances" which would render refusal of entry contrary to Article 8 because it "would result in unjustifiably harsh consequences", including for a partner.
- Section 82(1) of the NIAA provides a right of appeal to the FTT in the following terms:
"(1) A person ("P") may appeal to the Tribunal where—
…
(b) the Secretary of State has decided to refuse a human rights claim made by P…"
- Section 84(2) provides that an appeal under s.82(1)(b) "must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998".
- "Human rights claim" is defined in s.113 of the NIAA as:
"… a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention)."
The facts and procedural background
- Mr Tomlinson was born in 1982. He initially came to the United Kingdom in December 2000 on a visitor's visa. A subsequent application for a student's visa was refused and he remained without leave. Between 2005 and 2011 Mr Tomlinson fathered three children, with whom he has limited contact.
- In November 2011 Mr Tomlinson was convicted of possessing an automatic weapon. A five-year custodial sentence was imposed. A deportation order was signed in January 2014, against which Mr Tomlinson appealed unsuccessfully. He was deported to Jamaica in March 2016.
- Mr Tomlinson's relationship with Mrs Tomlinson developed while they were both in the United Kingdom. They married in June 2018 in Jamaica. Mrs Tomlinson moved to France in early 2019, where she found work. Mr Tomlinson joined her there.
- Mrs Tomlinson had longstanding serious health issues, in the form of familial adenomatous polyposis (FAP). She had undergone preventative surgery to prevent future bowel cancer and required regular endoscopic checks at a specialist hospital in London. Her FAP condition, together with unrelated trauma she had suffered, affected her general physical and mental health. More recently, she also suffered multiple miscarriages and in December 2021 was diagnosed with thyroid cancer, for which she required treatment.
- On 4 July 2020 Mr and Mrs Tomlinson both attempted to travel from France to a hospital appointment in London, apparently in the belief that the deportation order was no longer in effect. Mr Tomlinson was denied entry.
- On 24 September 2020 Mr Tomlinson's solicitors, Duncan Lewis, sent a letter to the Respondent seeking "Entry Clearance for Mr Lloyd Anthony Tomlinson". Mrs Tomlinson's health problems were explained and it was submitted that refusal of entry would infringe Article 8 of the Convention. It was emphasised that Mrs Tomlinson required the support of Mr Tomlinson's presence, and that her deteriorating health meant that she could not remain in France. The letter's conclusion reiterated its heading, namely that what was being requested was entry clearance.
- On 7 June 2021 the Respondent issued a decision notice which concluded that "it has been decided to refuse your client's human rights claim and to refuse to revoke his deportation order". Mr Tomlinson appealed to the FTT against the refusal of the human rights claim, under s.82 of the NIAA. His appeal was allowed on 16 September 2022 (Judge Karbani). The UT dismissed the Respondent's appeal against that decision on 2 May 2023 on the basis that there was no material error of law (case reference UI-2022-005592). The revocation of the deportation order was notified on 20 June 2023, by a letter that also stated that Mr Tomlinson would need to obtain a visa if he wished to return to the United Kingdom. When this was queried, Duncan Lewis were told that what had been allowed was an appeal against the refusal to revoke the deportation order, and that entry clearance applications were dealt with by a different department.
- An application for entry clearance was made on 17 July 2023 on the basis of family life with Mrs Tomlinson. A detailed letter from Duncan Lewis dated 2 August 2023 explained the factual and procedural background, including the FTT's decision and the unsuccessful appeal. Duncan Lewis maintained that the FTT's decision was the "starting point" to show that entry clearance should be granted, relying on the Devaseelan guidance (Devaseelan v Secretary of State for the Home Department [2002] UKIAT 702, [2003] Imm AR 1). Extracts from the FTT's decision were set out.
- The Respondent refused the application by a letter dated 21 August 2023 (the "Decision"). It was accepted that Mr Tomlinson met the eligibility requirements but the application was refused on suitability grounds under rule S-EC.1.4(a) of Appendix FM, due to his earlier conviction. It was explained that it had been considered whether exceptional circumstances existed under GEN.3.1 and 3.2 which would render a refusal of the claim a breach of Article 8, but refusal was considered to be proportionate. Although Mrs Tomlinson's health issues were referred to, no mention was made of the FTT's decision. Mr Tomlinson was informed that he had a right of appeal.
- Judicial review proceedings were issued on 20 November 2023. Permission was initially refused on the papers on the basis that there was an alternative remedy in the form of the right of appeal. However, permission was granted by Upper Tribunal Judge Stephen Smith at an oral renewal hearing on the ground that it was arguable that the Entry Clearance Officer had failed to give effect to the FTT's earlier decision. Judge Stephen Smith commented that he was not persuaded that the right of appeal was a reason to refuse permission if the Respondent was bound to give effect to the FTT's decision.
- The judicial review application was dismissed by Upper Tribunal Judge Lesley Smith on 26 July 2024. The two grounds relied on by Mr Tomlinson before the UT were that 1) the Decision amounted to an abuse of process as the human rights claim had already been determined; and 2) the Decision was in any event unlawful or irrational for failing to take account of the findings in Judge Karbani's decision. The judge addressed the substance of the first ground, concluding that what led to Judge Karbani's decision was a refusal to revoke the deportation order rather than a decision to refuse entry clearance, such that there was no abuse of process. The second ground was dismissed on the basis that there was an adequate alternative remedy.
Grounds of appeal
- There are four grounds of appeal:
Ground 1: Requiring Mr Tomlinson to make a fresh or further entry clearance application was unlawful or irrational.
Ground 2: The Respondent had failed to give effect to the FTT's decision; it was unlawful or irrational to refuse entry in relation to the same conviction as was the subject of the revoked deportation order.
Ground 3: Alternatively, the Decision was oppressive.
Ground 4: The available right of appeal was not an adequate alternative remedy.
In summary, I would allow the appeal on grounds 2 and 4.
Ground 1
- Mr Balroop, for Mr Tomlinson, submitted that the Respondent was wrong to require Mr Tomlinson to make fresh or further entry clearance application following revocation of the deportation order. He pointed out that the original letter sent on 24 September 2020 sought entry clearance. No further application should have been required following the FTT's decision.
- Mr Biggs, for the Respondent, emphasised the conceptual distinction between a decision to revoke a deportation order and a decision to grant entry clearance. The removal of the deportation order was a necessary prerequisite to any consideration of the question of entry clearance. Mr Biggs relied on Secretary of State for the Home Department v ZP (India) [2015] EWCA Civ 1197, [2016] 4 WLR 35 at [23], where Underhill LJ referred to the length of time for which a deportation order should continue "before an application for leave to enter will be entertained".
- I agree with Mr Biggs that the question whether to revoke a deportation order is distinct from, and necessarily anterior to, the question of whether and on what terms to grant entry clearance. This is clear from the scheme of the legislation. A deportation order prohibits entry into the United Kingdom, but a person who is not a British citizen in any event requires leave to enter: ss.3(1) and 5 of the 1971 Act (see [ REF _Ref191483422 \r \h ] and [ REF _Ref191483427 \r \h ] above). Put another way, the existence of a deportation order is a bar to the grant of entry clearance. Rule 392 of the Immigration Rules ([ REF _Ref191484570 \r \h ] above) is entirely consistent with this. It makes clear that revocation of a deportation order does not confer entitlement to enter; rather, it renders the individual "eligible to apply for admission".
- This is further supported by the point that entry clearances are not granted on uniform terms, whether as to length, conditions, or eligibility to apply for settlement. A decision to revoke a deportation order could not, without more, determine any of these other matters. For example, Mr Balroop relied on the fact that the Immigration Rules provide for persons granted entry clearance as a partner to be given clearance for an initial period not exceeding 33 months, subject to a condition of no recourse to public funds, but he rightly accepted that it would be open to the Respondent in her discretion to grant initial clearance for a period of less than 33 months. The same must apply to conditions that might be imposed.
- Mr Balroop's point that entry clearance was in fact sought in the original request (albeit not using the prescribed online form) is a fair one, but matters have moved on and in any event it would make no material difference. It may have provided a basis for Duncan Lewis to point to the original request for entry clearance and ask that that be considered now that the deportation order had been revoked, but instead they followed the prompt to make a fresh application. Further, even if the former approach had been followed the Respondent would still have been required to consider an application for entry clearance and determine whether, and on what terms, it should be granted. That exercise had simply not been performed at the time of the original refusal to revoke the deportation order, and could not have been given the decision that was reached at that time.
- I would therefore dismiss ground 1 of the appeal.
Ground 2
- As we emphasised at the hearing, the real substance of the appeal lies in ground 2, namely that in refusing entry clearance the Respondent had wrongly failed to give effect to the FTT's decision.
- During the course of oral submissions, Mr Biggs accepted that a challenge on the basis of Wednesbury unreasonableness would have succeeded, because the Entry Clearance Officer had simply failed to grapple with the FTT's decision. He further accepted that, applying the Devaseelan guidance to the facts of this case, the Entry Clearance Officer should have regarded the matter as settled by that decision. This was on the basis of paragraph (6) of that guidance, as summarised by Rose LJ in BK (Afghanistan) v Secretary of State for the Home Department [2019] EWCA Civ 1358, [2019] 4 WLR 111 ("BK (Afghanistan)") at [32]:
"(6) If before the second adjudicator the appellant relies on facts that are not materially different from those put to the first adjudicator, the second adjudicator should regard the issues as settled by the first adjudicator's determination and make his findings in line with that determination rather than allowing the matter to be re-litigated."
- However, Mr Biggs continued to resist the way in which ground 2 was put, insofar as it was being maintained that entry clearance should follow automatically from the FTT's decision. He also maintained that Mr Balroop's reliance on Secretary of State for the Home Department v TB (Jamaica) [2008] EWCA Civ 977 ("TB (Jamaica)") was misplaced, and that it was preferable to decide this ground on the basis of the well-established Devaseelan guidance rather than "extending" TB (Jamaica) or otherwise applying principles of issue estoppel in this area.
TB (Jamaica) and Al-Siri
- TB (Jamaica) concerned an individual, TB, whose deportation for a drugs offence was prevented by a decision of the Asylum and Immigration Tribunal on both human rights and refugee status grounds. During the course of those proceedings the Secretary of State did not argue that refugee status was precluded by s.72 of the NIAA and Article 33(2) of the Refugee Convention on the basis that TB was a danger to the community. However, following the decision s.72 was invoked to deny asylum and the five years' leave to remain that would otherwise ordinarily be granted to a refugee. TB applied for judicial review.
- At first instance, Bean J held that the Secretary of State's decision was an abuse of process, commenting that Henderson v Henderson (1843) 3 Hare 100 and Johnson v Gore Wood [2002] 2 AC 1 are applicable in public law as in private law. His decision was upheld by this court. Stanley Burnton LJ, with whom Thorpe and Rix LJJ agreed, observed that it had been open to the Secretary of State to raise the s.72 issue before the Immigration Judge, and also that the judge's findings under Article 8 were inconsistent with TB constituting a danger to the community ([30]-[31]). He then said:
"32. As a matter of principle, it cannot be right for the Home Secretary to be able to circumvent the decision of the IAT by administrative decision. If she could do so, the statutory appeal system would be undermined; indeed, in a case such as the present, the decision of the Immigration Judge on the application of the Refugee Convention would be made irrelevant. That would be inconsistent with the statutory scheme.
33. The principle that the decision of the Tribunal is binding on the parties, and in particular on the Home Secretary, has been consistently upheld by the Courts…"
- Stanley Burnton LJ went on to refer to R (Mersin) v Secretary of State for the Home Department [2000] EWHC Admin 348, where Elias J referred to the duty to give effect to a Special Adjudicator's decision absent a change in circumstances, and R (Boafo) v Secretary of State for the Home Department [2002] EWCA Civ, [2002] 1 WLR 44 at [26] where Auld LJ referred to the binding nature of an unappealed decision of an adjudicator. He then added:
"35. Of course, different considerations may apply where there is relevant fresh evidence that was not available at the date of the hearing, or a change in the law, and the principle has no application where there is a change in circumstances or there are new events after the date of the decision: see Auld LJ in Boafo at [28]. But this is not such a case.
36. The judge described the attempt by the Secretary of State to raise the section 72 issue after the Immigration Judge's decision and to refuse leave to enter and to remain as an abuse of process. That is an expression normally reserved for abuses of the process of the courts. The Secretary of State's action might be castigated as an abuse of power, but I would prefer to avoid pejorative expressions of uncertain denotation and application and to hold simply that the Secretary of State was bound by the decision of the Immigration Judge and that her subsequent action was unlawful on the ground that it was inconsistent with that decision. It follows that the judge's conclusion was correct. The Home Secretary is bound to grant TB the leave to remain to which the Immigration Judge's decision entitled him."
- TB (Jamaica) was considered again by this court in R (Yasser Al-Siri) v Secretary of State for the Home Department [2021] EWCA Civ 113, [2021] 1 WLR 2137 ("Al-Siri"), a case to which we drew the parties' attention in advance of the hearing. In that case the FTT had decided that Mr Al-Siri was not excluded from the Refugee Convention on the basis of Article 1F(c) (serious reasons for considering that he had been guilty of acts contrary to the purposes and principles of the United Nations), and was a refugee. The Secretary of State nonetheless concluded that Mr Al-Siri did not qualify for the grant of refugee status because there were reasonable grounds for regarding him as a danger to security within Article 33(2) of the Refugee Convention. Article 33(2) had not been relied upon before the FTT. Mr Al-Siri applied for judicial review on the grounds that there were insufficient new facts to justify a departure from the FTT's decision.
- Phillips LJ, with whom Underhill LJ and Sir Stephen Irwin agreed, rejected the argument that TB (Jamaica) could be distinguished. He said this, in a passage that bears repeating in full:
"46. In my judgment the ratio of the decision in TB (Jamaica) was not restricted in the manner suggested by [Counsel for the Secretary of State], but was (as the Judge held) a recognition of the broad principles of finality and proper use of process (or power), applicable in the public law sphere just as in the private law context: a party must bring before the court their entire case, will be bound by the resulting decision and will not be permitted to re-open that decision on the basis of matters which could have been raised, but which were not.
47. The fundamental importance of those principles was explained in Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 by Lord Bridge of Harwich (with whom all other members of the House agreed) at p 289:
'The doctrine of res judicata rests on the twin principles which cannot be better expressed than in terms of the two Latin maxims 'interest rei publicae ut sit finis litium' and 'nemo debet bis vexari pro una et eadem causa'. These principles are of such fundamental importance that they cannot be confined in their application to litigation in the private law field. They certainly have their place in criminal law. In principle they must apply equally to adjudications in the field of public law. In relation to adjudications subject to a comprehensive self-contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions.'
48. In Arnold v National Westminster Bank plc [1991] 2 AC 93, Lord Keith of Kinkel, giving the leading speech, emphasised that there was no logical difference between 'a point which was previously raised and decided and one which might have been but was not' (p 108), but recognised at p 109 that:
'there may be an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result …'
49. In Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Contour Aerospace Ltd) [2014] AC 160 Lord Sumption JSC summarised the effect of Arnold in relation to issue estoppel as follows at para 22:
'(3) Except in special circumstances where this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully. If the relevant point was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised.'
50. In R (DN (Rwanda)) v Secretary of State for the Home Department (Bail for Immigration Detainees intervening) [2020] AC 698, the claimant had been detained pending deportation pursuant to an Order made under the NIAA, having lost his appeal against such deportation before the AIT. It was subsequently determined that the Order was ultra vires, with the effect that the deportation order and the detention were unlawful. Lord Carnwath JSC, referring to the above authorities, expressed the view that, even in the case of illegal detention, the principles of res judicata and issue estoppel could have been invoked by the Home Secretary to debar the claimant from pursuing a claim for damages based on that illegality, the claimant having failed to challenge the validity of the Order before the AIT and being bound by its decision that his deportation was lawful."
- Phillips LJ then explained that it was clear from the reasoning in TB (Jamaica) that the taking of a point that could have been taken at the first hearing was unlawful. However, given that Counsel for the Secretary of State accepted that a new objection to refugee status could not be taken on the basis of exactly the same matters as were before the FTT, the real dispute in Al-Siri was over the hurdle to be surmounted, in terms of new matters, before re-opening the issue of refugee status was justified ([51]-[52]). In relation to that issue, the judge had correctly applied the Ladd v Marshall test, following in particular the analysis in Ullah v Secretary of State for the Home Department [2019] EWCA Civ 550 which concluded that there was no inconsistency between that test and TB Jamaica at [35] (see Al-Siri at [53]-[70]).
Application of principles of res judicata
- Mr Biggs submitted that the principles to be derived from TB (Jamaica) and Al-Siri were confined to issues of status, and specifically the refugee status that was the subject of those decisions. However, I do not read them as so confined. As Phillips LJ explained at [47] of Al-Siri, the House of Lords made clear in Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 ("Thrasyvoulou") at p.289 that principles of finality – translating the Latin into English, the public interest in the finality of litigation and the maxim that no one should be vexed more than once in the same cause – apply in public law as they do in private law. Further, as Lord Bridge said in Thrasyvoulou:
"…where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions."
- Just before this passage Lord Bridge had referred to the public law principle that a statutory body cannot agree to fetter its own freedom to perform its statutory duties or exercise its statutory powers. He commented that this would prevent reliance on estoppel by representation. I would add that it would also be relevant to legitimate expectation: Hillside Parks Ltd v Snowdonia National Park Authority [2020] EWCA Civ 1440 at [43]. However, as Lord Bridge also said, the rationale underlying res judicata is different.
- The context in Thrasyvoulou was a challenge to planning enforcement notices which relied on the same circumstances as earlier enforcement notices that had been quashed on appeal. However, Lord Bridge's comments were not restricted to a planning context. They are equally capable of being applied to the specific jurisdiction conferred on the FTT to determine human rights claims.
- More recently, and as Phillips LJ noted in Al-Siri, Lord Carnwath considered the application of principles of res judicata and issue estoppel in some detail in obiter observations in R (DN (Rwanda)) v Secretary of State for the Home Department [2020] UKSC 7, [2020] AC 698 ("DN (Rwanda)"). That was an immigration case. Phillips LJ clearly proceeded on the basis that those principles were applicable in Al-Siri. I also note that they were recently applied by the High Court in R (Islam) v Secretary of State for the Home Department [2024] EWHC 1838 (Admin).
- A brief reminder of the different kinds of res judicata is worthwhile. As Lord Sumption explained in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46, [2014] AC 160 ("Virgin Atlantic") at [17], res judicata is a portmanteau term. Relevantly for present purposes, it includes:
a) cause of action estoppel, which precludes parties and their privies from relitigating the same cause of action in subsequent proceedings;
b) issue estoppel, which is relevant where "a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to reopen that issue" (Arnold v National Westminster Bank plc [1991] 2 AC 93 ("Arnold v NatWest") at p.105, per Lord Keith, cited by Lord Sumption in Virgin Atlantic at [20]); and
c) abuse of process under the Henderson v Henderson principle, which may preclude a party from raising in subsequent proceedings matters which were not, but could and should have been, raised in the earlier ones.
- At first sight the facts of both TB (Jamaica) and Al-Siri might appear closest to Henderson v Henderson. The Secretary of State was seeking to raise issues that could and should have been raised in the earlier proceedings. I say "closest" because, as Stanley Burnton LJ observed in TB (Jamaica), the term "abuse of process" is more suited to court (or tribunal) proceedings, whereas the complaint in those cases, as here, is about administrative action following earlier tribunal proceedings.
- However, as is apparent from Phillips LJ's consideration of it in Al-Siri, in reality the closer analogy is issue estoppel. The relevant issue in each case was whether the individual in question qualified for refugee status. The tribunal having determined that he did, principles of finality meant that was binding on the Secretary of State in the absence of a change of circumstances (including new evidence: TB (Jamaica) at [35]). The Secretary of State's later action was therefore unlawful because it was inconsistent with that binding decision: TB (Jamaica) at [36]. This goes further than the "broad, merits-based" assessment required to determine whether there has been Henderson v Henderson abuse (see Johnson v Gore Wood & Co [2002] 2 AC 1, 31). Further, as Lord Keith said in Arnold v NatWest at p.108, there is no logical difference in this context between "a point which was previously raised and decided and one which might have been but was not".
- As set out by Phillips LJ in Al-Siri at [49], in Virgin Atlantic Lord Sumption concluded at [22] that, except in special circumstances, issue estoppel "bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully". As discussed further below, the facts of this case do not involve any new point being raised which was not raised before the FTT. Further (and until Mrs Tomlinson' death), it was not argued that there had been any relevant change in circumstances. To that extent the position is even clearer than in Al-Siri.
- The Devaseelan guidance, considered by Rose LJ in BK (Afghanistan), is directed not at principles of res judicata but to the tribunal's approach to findings of fact made in an earlier tribunal decision, where the issue is accepted to be different because it is being tested at a different time. As Rose LJ explained at [31], the difficulty at which the guidance is aimed arises where the first adjudicator assessed a matter, such as entitlement to asylum, at a particular time and the second adjudicator assesses it at a later time. As she said:
"It is not the second adjudicator's role to consider arguments intended to undermine the first adjudicator's determination but the second adjudicator must be careful to recognise that the issue before him is not the issue that was before the first adjudicator: 'In particular, time has passed; and the situation at the time of the second adjudicator's determination may be shown to be different from that which obtained previously.'…" (citing Devaseelan at [38]).
- The Devaseelan guidance, which is summarised in BK (Afghanistan) at [32], relates to the proper approach to facts and evidence in those circumstances. In broad terms, the approach involves taking the earlier determination as the starting-point, while seeking not to fetter the second adjudicator's decision-making to an inappropriate extent (see also BK (Afghanistan) at [35]-[37]). The guidance is not directed at attempts to re-open what is indisputably the same issue, because it is accepted that the relevant assessment is to be conducted as at the date of the later determination. As Rose LJ made clear in the passage just set out, the issues between the two adjudicators are not the same.
- In BK (Afghanistan) Rose LJ commented at [39] that the "authorities are clear that the guidelines are not based on any application of the principle of res judicata or issue estoppel" and explained at [44] that the guidance was instead based on fairness, namely that the tribunal must be alive to the unfairness of the opposing party being required to relitigate a point. I would respectfully agree. The Devaseelan guidance applies to findings of fact, in circumstances where the issues are not the same. This is because the guidance concerns cases where a claim, for example to asylum, is being assessed at a later date in the light of the circumstances then pertaining: see also Djebbar v Secretary of State for the Home Department [2004] EWCA Civ 804, [2004] INLR 466 at [28], where Judge LJ rejected an argument based on res judicata on the basis that "The second application is a fresh application requiring proper consideration on such merits as it may enjoy, approaching the issues contemporaneously".
- The difference between the determination of facts and issues is important. Following his classic description of issue estoppel in Thoday v Thoday [1964] P 181, 198, Diplock LJ said this:
"But 'issue estoppel' must not be confused with 'fact estoppel,' which, although a species of 'estoppel in pais,' is not a species of estoppel per rem judicatam. The determination by a court of competent jurisdiction of the existence or nonexistence of a fact, the existence of which is not of itself a condition the fulfilment of which is necessary to the cause of action which is being litigated before that court, but which is only relevant to proving the fulfilment of such a condition, does not estop at any rate per rem judicatam either party in subsequent litigation from asserting the existence or non-existence of the same fact contrary to the determination of the first court. It may not always be easy to draw the line between facts which give rise to 'issue estoppel' and those which do not, but the distinction is important and must be borne in mind."
- Questions such as whether a person qualifies for refugee status or whether their human rights are infringed are clearly issues, not matters of fact. Nevertheless, I note the strong parallel between paragraph (6) of the Devaseelan guidance (set out at [ REF _Ref191568907 \r \h ] above) and the principle of issue estoppel. This is unsurprising, because the underlying principle of fairness which Rose LJ identified is common to res judicata.
- I accept that there are some broad references in case law to res judicata not being applicable in public law and immigration cases. Indeed, in BK (Afghanistan) Rose LJ noted at [37] that the UT in that case had "confirmed that the principle of res judicata was not applicable in immigration appeals". However, in the light of Thrasyvoulou, TB (Jamaica), Al-Siri and Lord Carnwath's observations in DN (Rwanda) these comments need to be treated with care. The particular context in BK (Afghanistan) was an application of the Devaseelan guidance where the issues considered by the two decision-makers were not the same.
- In R (Momin Ali) v Secretary of State for the Home Department [1984] 1 WLR 663 ("Momin Ali") Sir John Donaldson MR said this at pp.669-670:
"Just as I think that the doctrine of issue estoppel has, as such, no place in public law and judicial review (see Reg. v Secretary of State for the Environment, Ex parte Hackney London Borough Council [1983] 1 WLR 524, approved by this court [1984] 1 WLR 592), so I think that the decision in Ladd v Marshall [1954] 1 WLR 1489 has, as such, no place in that context. However I think that the principles which underlie issue estoppel and the decision in Ladd v Marshall, namely that there must be finality in litigation, are applicable, subject always to the discretion of the court to depart from them if the wider interests of justice so require."
- Momin Ali was decided over five years before Thrasyvoulou, but it was neither cited to the House of Lords in Thrasyvoulou nor cited to the Supreme Court in DN (Rwanda). Both those later decisions are by a higher court. Further, the case relied on by the Master of the Rolls in Momin Ali as authority for the proposition he stated (R v Secretary of State for the Environment, Ex parte Hackney London Borough Council [1983] 1 WLR 524, [1984] 1 WLR 592 ("Hackney")) in fact considered the narrower question of whether issue estoppel can apply to matters decided in earlier judicial review proceedings.
- The facts of Hackney involved a second application for judicial review by Hackney LBC and other local authorities, relying on an argument that an entitlement to rate support grant had been conclusively determined against the Secretary of State in the first proceedings. The Divisional Court ([1983] 1 WLR 524, May LJ and McNeill J) concluded that there was no issue estoppel on the facts but at pp.537-539 went on to consider whether it could apply in principle. They expressed the view that it would not only often be difficult to identify an issue decided in judicial review proceedings in the absence of formal pleadings, but also that there was no true lis either between the Crown and the respondent or between the ex parte applicant and the respondent. Further, the decision reached often left matters open for reconsideration such that it would lack the necessary finality. They adopted the following passage from Wade's Administrative Law, 5th edition:
"… in these procedures the court 'is not finally determining the validity of the tribunal's order as between the parties themselves' but 'is merely deciding whether there has been a plain excess of jurisdiction or not.' They are a special class of remedies designed to maintain due order in the legal system, nominally at the suit of the Crown, and they may well fall outside the ambit of the ordinary doctrine of res judicata. But the court may refuse to entertain questions which were or could have been litigated in earlier proceedings, when this would be an abuse of legal process; and in the case of habeas corpus there is a statutory bar against repeated applications made on the same grounds."
- The Divisional Court went on to observe that the principle that relief was discretionary and the obligation to obtain leave from the court before an application could be made "seems to us to be contrary to the concept of a final determination of an issue between parties which is at the root of issue estoppel". Nevertheless the court could use its powers to ensure finality of litigation. In upholding the Divisional Court's decision in this court ([1984] 1 WLR 592), Dunn LJ indicated that he was inclined to agree that the view it expressed about the non-application of issue estoppel was correct and adopted the passage from Wade (p.602). Donaldson LJ also "share[d] the doubts expressed by May LJ and McNeill J as to the applicability of issue estoppel in judicial review proceedings" (p.606).
- More recently, in R (Munjaz) v Mersey Care NHS Trust [2003] EWCA Civ 1036, [2004] QB 395 ("Munjaz") Hale LJ, giving the judgment of the court, referred to Hackney and similarly doubted the application of issue estoppel by reference to earlier judicial review proceedings, noting also the additional factor in judicial review of the wider public interest, which should not be prejudiced by a failure to place all material and arguments before the court on the first occasion ([78]-[79]).
- Returning to Momin Ali, it is notable that, despite the broad statement about the non-application of res judicata in public law, the Master of the Rolls recognised that the underlying principle of finality of litigation applied. He proceeded, in effect, to apply Ladd v Marshall principles to the facts of that case, which involved a judicial review challenge to an attempt by the Secretary of State to revisit an earlier adjudicator's decision about the identity of the applicant's father, and thereby treat him as an illegal immigrant. That is entirely consistent with the approach in TB (Jamaica) and Al-Siri. Further, having concluded that fresh evidence should not be admitted he referred at p.671 to a "starting point" of a "binding decision of an appropriate tribunal in favour of the applicant" which, if not res judicata, "comes very close to it", such that proof of fraud was required to reverse it.
- The application of issue estoppel in immigration cases was considered again by this court in Ocampo v Secretary of State for the Home Department [2006] EWCA Civ 1276. Auld LJ said at [24] that "it is at the very least doubtful whether the principles of res judicata or issue estoppel have any application, certainly in their full rigour, to appeals before immigration tribunals, any more than they do to successive claims for judicial review", citing Hackney and Munjaz, but considered the Devaseelan guidelines to be relevant. However, that was a case where an applicant for asylum was seeking to rely on an earlier tribunal determination that his daughter qualified for asylum. The parties were therefore different, so there could have been no question of issue estoppel in any event. There was no reference to Thrasyvoulou.
- Like Momin Ali, DN (Rwanda) involved a judicial review challenge in the context of an earlier tribunal decision, in that case one in favour of the Secretary of State. In his detailed obiter analysis at [44]-[64], Lord Carnwath considered Thrasyvoulou and observed that it did not rest on any peculiarity of planning law. He referred to Diplock LJ's description of issue estoppel in Thoday v Thoday and to Arnold v Natwest and Virgin Atlantic. He considered that issue estoppel was capable of applying in respect of an issue that had been decided in the tribunal decision. While he did not express a concluded view, he noted that authorities doubting the potential application of issue estoppel in a public law context had not referred to Thrasyvoulou, and also that there was no reason why Lord Bridge's statement should not apply in the context of the statutory immigration appeal process ([64iv]). I respectfully agree.
- For completeness, I should also refer to XYZ v Disclosure and Barring Service [2025] EWCA Civ 191, handed down since the hearing of this appeal. That concerned a very different question of whether the Disclosure and Barring Service or, on appeal, the UT, was bound by findings of fact made by the Teachers' Regulation Authority. An argument of cause of action estoppel was dismissed as fundamentally misconceived because the parties were not the same, but there were also other difficulties, including the fact that one or both of the relevant statutory schemes were not designed to finally establish the existence of a legal right, and the subject-matter of the two procedures was different: see the judgment of Andrews LJ at [61]-[73].
- I would draw the following conclusions from this review of the case law:
a) Lord Bridge's statement of principle in Thrasyvoulou is of general application. There is no reason in principle why it should not apply to decisions of statutory tribunals in immigration cases, and in particular to the FTT's jurisdiction to determine a human rights claim under s.82 of the NIAA.
b) As the discussion in Hackney and Munjaz shows, there may be particular difficulties in applying principles of res judicata in relation to matters decided in earlier judicial review proceedings. But neither this case, nor Lord Bridge's reference to cases where "where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right", is concerned with matters decided in earlier judicial review proceedings.
c) Issue estoppel requires an identity of issue. This will very commonly not be the case in an immigration context, because the relevant matter (such as a claim to asylum) is being assessed at a different time and in the light of the then prevailing circumstances. In those circumstances the Devaseelan guidance will apply. That guidance applies to the proper approach to facts and evidence which has been considered in an earlier decision, where the issue for determination in the later decision is different because it is being determined at a different time.
d) If, exceptionally, identical issues do arise between the same parties in successive appeals to the FTT, then in principle issue estoppel may apply, subject always to the "special circumstances" exception referred to in Arnold v NatWest and Virgin Atlantic.
e) Further, even where the issues are not identical, to the extent that facts are relied on that are "not materially different" from those put before the first adjudicator, they should be regarded as already settled under the Devaseelan guidance, for reasons of fairness that also underpin res judicata.
f) The fact that the earlier appeal to the FTT may have related to a different kind of decision of the Respondent (such as, in this case, whether to revoke a deportation order as opposed to whether to grant entry clearance) does not prevent issue estoppel if the same issue forms a necessary part of the decision-making in each case. This reflects the distinction between issue estoppel and cause of action estoppel.
g) Where, as here, a judicial review challenge is made on the basis of a failure by the Secretary of State to follow an earlier determination of an issue by the FTT, principles of issue estoppel can and should be applied by analogy, recognising that the complaint is about administrative action following earlier tribunal proceedings, rather than successive proceedings: TB (Jamaica) and Al-Siri, [ REF _Ref191752455 \r \h ]-[ REF _Ref191752582 \r \h ] above.
Application to this case
- The UT sought to distinguish TB (Jamaica) on the basis that both the tribunal determination and the later decision related to asylum, whereas in this case the decision considered by the FTT was the refusal to revoke a deportation order rather than a refusal of entry clearance. The "issue" considered by the FTT was whether maintaining the deportation order would breach Article 8, and not whether refusing entry clearance would do so.
- I disagree. If principles of res judicata are applied by analogy, the question whether Article 8 rights are infringed is an issue that must necessarily be determined both to reach a conclusion about whether to revoke the deportation order and to decide whether to grant entry clearance. The FTT's decision determined that issue, and that determination bound the Secretary of State. I would add that, if the matter were relitigated, it would cease to be a question of analogy. Rather, issue estoppel would apply in the normal way. In particular, this would in my view be the case if the Decision had been the subject of a further appeal to the FTT.
- The FTT accepted that Mrs Tomlinson had complex health needs, that those needs might be "extensive or unpredictable" during cancer treatment, that Mrs Tomlinson had not had that treatment in spite of medical advice because "she does not feel that she can cope with having that treatment…in the absence of her husband" due to her complex medical history and mental health issues, and that it would be unduly harsh to expect Mrs Tomlinson to relocate to France for medical treatment (paragraphs 46-49). It then reasoned as follows:
"51. I have reminded myself that there is a strong public interest in in [sic] the appellant's continued deportation and that in the case of an conviction for which the person was sentenced to a period of imprisonment of at least four years, that the continuing deportation order will be the proper course. It has been nearly 10 years since the index offence [and] there is no evidence that the appellant has engaged in any further offences or been convicted since that date, although I note that that is to be given limited weight as to evidence of rehabilitation in and of itself.
52. I have considered the respondent's submission, that the appellant and Mrs Tomlinson recommenced their relationship knowing that the appellant was subject to a deportation order. However I accept that there has been a significant deterioration in Mrs Tomlinson's health as she did not have a cancer diagnosis at that time. I also find that her suicide attempt indicates that there was a further decline in her mental health which was impacted by the separation and recurrent miscarriages. I find the situation that they are in now compared to the time that they got married is markedly different. I also accept that Mrs Tomlinson genuinely tried to move to France to be with the appellant, however was ultimately unsuccessful due to her complex medical needs. Therefore the public interest in maintaining effective immigration control whereby the sponsor has married someone knowing they were subject to a deportation order, is slightly reduced in this case.
53. Although there is evidence of ongoing contact with the appellant's children contained within the bundle, I find that there is limited evidence that he still has any direct parental role in their lives. I am satisfied that the appellant has maintained contact since his removal, and that that is likely to continue regardless of his location. I find there is limited evidence to depart from the findings of Judge Chamberlain in respect of whether the appellant's presence in the UK is required to meet the best interests of the his children [sic], and therefore those findings remain intact.
54. I find that Mrs Tomlinson has delayed her surgery because the appellant is not currently in the UK to support her through this. I find that the evidence relating to her mental [and] physical health, has consistently indicated that she requires his support during this difficult period of her life. I find that her decision not to have treatment for her cancer despite medical advice is [a] strong indication of the interference that the respondent's decision to refuse entry to the appellant is having.
55. Overall, I am satisfied that the combination of Mrs Tomlinson's conditions, and the impact that this is having on her choice on whether to have ongoing treatments that she needs in order to assist health [sic], amount to very compelling circumstances which outweigh the public interest in maintaining the appellant's deportation. I am satisfied both that the absence of the appellant is disproportionately affecting Mrs Tomlinson's mental health and physical health, and further that his return to assist her during a challenging period is likely to be critical to her getting cancer treatment. I find that these are exceptional circumstances which outweigh the public interest in deportation.
56. As such, I am satisfied that the refusal to revoke the appellant deportation order amounts to a breach of Mrs Tomlinson's Article 8 right to family life."
- It is clear from this that the FTT decided that Mrs Tomlinson's Article 8 rights were being infringed by not being permitted to have the support of the physical presence of Mr Tomlinson during her illness. Given the conclusion that Mrs Tomlinson could not be expected to relocate to France, that necessarily involved Mr Tomlinson being allowed to enter the United Kingdom to be with his wife. Indeed, the point is expressly referred to in paragraph 54, with the reference to "the respondent's decision to refuse entry". If Judge Karbani had been asked whether the conclusion that Mrs Tomlinson's Article 8 rights was infringed would apply to a decision to refuse entry clearance or was confined to the decision to maintain the deportation order, her only rational response would have been that it was the same issue, and she had already decided it. Further, her decision would be entirely pointless if its result was anything other than to allow Mr Tomlinson to join his wife.
- This is not a Devaseelan case where a second decision is being made at a later time, in the light of the circumstances then prevailing. The sole ground on which entry clearance was denied was the existence of the earlier conviction and the associated custodial sentence. That was precisely the same event as had given rise to the deportation order. The FTT's decision conducted a balancing exercise between the strong public interest in Mr Tomlinson being excluded from the United Kingdom as a result of that conviction and Mrs Tomlinson's Article 8 rights, and concluded that the latter outweighed the former. So far as the conviction is concerned, the Respondent is bound by that decision. The issue, namely whether Mrs Tomlinson's Article 8 rights outweighed the public interest in Mr Tomlinson's continued exclusion, was exactly the same in deciding whether the deportation order should be revoked and in deciding whether entry clearance should be granted.
- I should emphasise that none of what I have said would prevent an assessment of suitability in order to determine whether there has been a relevant change of circumstances or fresh evidence under the Ladd v Marshall principle since the prior determination (TB (Jamaica) at [35], as considered in Al-Siri). But no such change is relied on in this case. There was no question, for example, of an improvement in Mrs Tomlinson's health that might have justified a reassessment of the position.
- I would therefore conclude that, when considering Mr Tomlinson's application for entry clearance in 2023, the Respondent was bound by the FTT's decision to conclude that Mrs Tomlinson's Article 8 rights precluded reliance on Mr Tomlinson's conviction to deny a right of entry under rule S-EC.1.4(a) of Appendix FM. The Decision was therefore unlawful. Ground 2 should therefore succeed.
- In these circumstances it not necessary to say anything about ground 3, so I will move on to ground 4 before turning to remedy.
Ground 4
- I have to say that I find the Respondent's insistence that Mr Tomlinson had an adequate alternative remedy of an appeal to the FTT deeply unattractive.
- First, as the Respondent finally accepted in oral submissions before us, the failure of the Entry Clearance Officer to grapple with the FTT's decision was on any basis unreasonable in the Wednesbury sense. That obvious fact is a prime example of a valid claim for judicial review. The Respondent should also have recognised and addressed that failing at the pre-action stage. Further, the FTT would have had no jurisdiction to determine that issue, which is at the heart of Mr Tomlinson's complaint. Its sole jurisdiction would have been to determine whether the Decision was unlawful under s.6 of the Human Rights Act: s.84(2) of the NIAA ([ REF _Ref191636037 \r \h ] above).
- Secondly, if there was an appeal to the FTT then, even if the Devaseelan guidance were applied rather than principles of issue estoppel, it should have been clear that the FTT would reach the same result on a second determination (see [ REF _Ref191568907 \r \h ] above). In those circumstances it should have been apparent at all stages that the alternative route of an appeal to the FTT would lead to only one result. The FTT would point to its earlier decision and follow it. That would involve a waste of the resources of the FTT, which are properly employed in decision-making which requires the finding of facts. The FTT might legitimately ask the parties why they were there. In any event, I consider that issue estoppel would have applied in the FTT such that it would be bound to reach the same decision: see above. The reality is that FTT proceedings were simply inappropriate and it would rightly be seen as abusive for the Respondent to defend them.
- Thirdly, Mr Tomlinson obtained permission to apply for judicial review at an oral renewal expressly on the basis that the judge was (correctly) not persuaded that the right of appeal was a reason to refuse it. As pointed out by Jeremy Johnson QC (then sitting as a Deputy High Court judge) in R (B) v London Borough of Redbridge [2019] EWHC 250 (Admin) ("R (B)") at [25], the question of alternative remedy is "primarily a matter for consideration when determining whether to grant permission to claim judicial review". He further observed that the question of whether to grant relief is discretionary. The court might choose to do so even if it concludes at the substantive hearing that alternative relief was available, given that the matter had been fully argued and the alternative of "yet further rounds of litigation". He rightly referred to the overriding objective.
- Mr Biggs relied on the comments of Lord Dyson MR in R (Watch Tower Bible & Tract Society of Britain) v Charity Commission [2016] EWCA Civ 154, [2016] 1 WLR 2625 at [19] that where other means of redress are "conveniently and effectively available" a claim for judicial review should not be entertained other than "in a most exceptional case". However, Lord Dyson's comments related to whether a judicial review claim should be entertained in the first place by a grant of permission, because the appeal was against a refusal of permission (see at [8]). In this case we are past that stage. Alternatively, considerations of the kind considered in R (B) may mean that, once it falls for consideration at a substantive hearing, the case is "exceptional" even if it was not at an earlier stage.
- Mr Biggs further relied on R (Glencore Energy Ltd) v Revenue and Customs Commissioners [2017] EWCA Civ 1716 [2017] 4 WLR 213 at [71] as authority for the proposition that the UT was not precluded from reconsidering the question of alternative remedy at the substantive hearing. I do not disagree in principle, but the facts of that case were very different. As is clear from Sales LJ's judgment at [7], Hickinbottom LJ had granted permission to apply for judicial review on the papers, in the context of an application for permission to appeal against a refusal of permission to apply for judicial review, and directed that this court should retain the case. The question of whether judicial review should be refused on the grounds that there was a suitable alternative remedy was explicitly left to be determined at the substantive judicial review hearing in this court.
- Fourthly, and with respect, the UT's approach to the issue of alternative remedy was inconsistent. Mr Tomlinson either had a suitable alternative remedy, in which case judicial review proceedings were inappropriate, or he did not. But what the UT did was to decide ground 1 on its merits and refuse to decide ground 2 on the basis that there was an alternative remedy. The different approach to the two grounds is not easy to reconcile.
- The issue of alternative remedy also arose in Al-Siri and was rejected. Phillips LJ was not persuaded that Mr Al-Siri would have been able to challenge the relevant decision by an appeal to the FTT, held that he should not be required to mount a merits appeal before making a judicial review challenge and concluded that judicial review was not a satisfactory alternative remedy ([91]-[92]). His reasoning at [91] addressed the Secretary of State's suggestion that the FTT could consider the lawfulness of her action as a preliminary point in terms of what case she would be permitted to run, and concluded that this would amount to an impermissible way around the FTT's lack of jurisdiction to decide that the decision was unlawful. He also doubted whether the FTT had power to debar a party from advancing its case and considered that the FTT would need to consider the merits of the decision on the evidence as a whole.
- However, Phillips LJ went on at [92] to say that, even if that was wrong, an appeal to the FTT did not provide a satisfactory alternative remedy because it would duplicate the first, and there would be nothing to stop the Secretary of State repeating what she had done after the first decision. Rather:
"At some point, as a matter of upholding the rule of law, a failure to comply with the determination of the FTT must be capable of enforcement by order of the High Court."
- I agree with Phillips LJ's comments at [92]. I would respectfully suggest that his comments at [91] should be read in the context of the submissions he was addressing as to how the matter might be addressed in the FTT. He was not considering either the application of the Devaseelan guidance or the question whether (true) issue estoppel could apply in the FTT. If it can, as I consider to be the case, then it would not be a question of preventing the Respondent from advancing her case, or determining that the Decision was unlawful. The issue would simply be treated as already decided.
- I would therefore allow the appeal on ground 4.
Remedy
- I have concluded that the Respondent was bound by the FTT's decision to conclude that Mrs Tomlinson's Article 8 rights precluded reliance on Mr Tomlinson's conviction to deny a right of entry under rule S-EC.1.4(a) of Appendix FM. The Decision was therefore unlawful and should be quashed.
- However, this outcome will not achieve the result that Mr Tomlinson seeks, namely the grant of entry clearance. This is because on any reconsideration of his application the Respondent would be bound to take account of Mrs Tomlinson's tragic death. Mr Tomlinson would neither be able to rely on having a partner in the United Kingdom as his sponsor nor would he be able to rely on Mrs Tomlinson's Article 8 rights to justify entry despite his earlier conviction.
- Mr Balroop submitted that this court should declare that Mr Tomlinson is entitled to entry clearance. The actions of the Respondent had the effect of denying the entry clearance to which Mr Tomlinson was entitled, and the court should act to prevent an injustice and ensure that wrongful action is not rewarded. Mr Balroop relied on R (Ufot) v Secretary of State for the Home Department [2016] EWCA Civ 298 ("Ufot").
- While I have great sympathy for the position in which this family was placed as a result of the Respondent's failure to grant entry clearance, this court simply has no power to compel the grant of entry clearance. The question whether entry clearance should or should not be granted is a decision for the Respondent, not this court. It follows that it would also be entirely wrong for this court to make any declaration to the effect that Mr Tomlinson has any present entitlement to entry clearance in circumstances where the basis of his claim has, very sadly, fallen away.
- Ufot does not assist. In that case this court was prepared to grant a declaration that the applicant was entitled to be treated as if he had not overstayed, and to direct the Secretary of State to allow him to enter the United Kingdom for a limited period to apply for leave as a student. However, the facts were very different. The Secretary of State had wrongly overlooked an in-time application made for further leave while the applicant was in the United Kingdom. Further entry was for the limited purpose of submitting another application for leave.
- There is a further, important, point. It is true that, at the date of the Decision, the only lawful course of action would have been to grant Mr Tomlinson entry clearance on some basis. However, as Mr Balroop accepted, the terms on which it would be granted, including as to length and other conditions, would be a matter for the Respondent (see [ REF _Ref191913417 \r \h ] above). It is quite possible that those terms could have been linked, for example, to Mrs Tomlinson's continued need for medical treatment in the United Kingdom. Clearance would in any event be time limited. Thus, even if the court could somehow have fashioned a remedy that achieved the equivalent of a grant of entry clearance in 2023 it could not, in any event, have determined the terms on which it would have been granted.
Conclusion
- I would accordingly allow the appeal, quash the Decision on the basis that Mrs Tomlinson's Article 8 rights precluded reliance on Mr Tomlinson's conviction to deny a right of entry under rule S-EC.1.4(a) of Appendix FM, but refuse to make the additional declaration sought.
Lady Justice Andrews:
- I agree. The FTT judge decided whether the deportation order should be revoked, thus removing the otherwise insurmountable legal barrier to the grant of entry clearance. She did not decide whether entry clearance should be granted, as that was not a matter raised in that appeal. On the face of it, the Respondent complied with the FTT's decision by revoking the deportation order, and had a fresh discretion to exercise when considering whether entry clearance should be granted. That discretion fell to be exercised on the facts at the time the application for entry clearance was considered by the Entry Clearance Officer.
- However, in the circumstances of this case, the answer to the first question necessarily also answered the second. The question whether the deportation order should be revoked and the question whether entry clearance should be granted could not be answered differently, because the justification for the revocation necessarily meant that all the criteria for the grant of entry clearance were fulfilled. Mr Tomlinson's conviction and sentence could no longer be used to justify the refusal of his entry to the UK to join and help care for his seriously ill wife. Matters might have been different if the criteria for the grant of entry clearance had been different, or if there had been further requirements to be met.
- The FTT's reasons for deciding that the deportation order should be revoked, at [54] to [56], were that it was a disproportionate interference with Mrs Tomlinson's Article 8 rights at that time to preclude her husband from being with her in the UK to offer his comfort and support, without which she was unwilling to undergo treatment. That unequivocal legal ruling, which was a necessary step towards the conclusion that there were exceptional circumstances justifying the revocation of the deportation order, was binding on the Respondent, absent a material change of circumstances. The underlying factual situation had not significantly changed in the short period between the FTT decision and the Decision under challenge. In those circumstances, it was plainly not open to the Entry Clearance Officer to conclude that the refusal of entry clearance to Mr Tomlinson to be with his wife would be a proportionate interference with Mrs Tomlinson's Article 8 rights, or that the circumstances were not exceptional.
- One could reach that result by the application of classic Devaseelan principles, though as Lady Justice Falk has pointed out at [51], the guidance in that case is aimed specifically at fact-findings in situations where the issues are different. The Devaseelan approach is also adopted in situations where the issue is the same but reliance is placed on fresh evidence, for example where the original tribunal has found that the appellant is not credible, and evidence emerges which indicates that they were (or may have been) telling the truth. In such cases, the adverse credibility finding is treated by the second tribunal as a starting point, but it may be departed from when the second tribunal makes its own assessment on the evidence taken in the round. When the application for entry clearance was made, Duncan Lewis specifically adverted to Devaseelan.
- However, although it was based on findings of fact relating to the couple's situation, the key finding of disproportionate interference with Mrs Tomlinson's Article 8 rights was a finding of law. I agree that when a point of law has been determined in proceedings between the same parties, it is more appropriate to view the situation as one where the principle of res judicata (or the principle of finality as it is sometimes termed in the public law context) would apply by analogy to a subsequent administrative decision by the Respondent, and directly to any proceedings on appeal from, or by way of judicial review of, that decision. An FTT judge hearing an appeal against the refusal of entry clearance in this case would not simply be required to respect that finding and treat it as a starting point for making their own evaluation of proportionality. They would be bound by it unless the circumstances had materially changed.
- Given that the Entry Clearance Officer's decision failed to take into account something that was plainly material, namely, the findings of the FTT, which is a classic public law error, the decision to proceed by way of judicial review was fully justified. However even if the Entry Clearance Officer had not made that error, I agree that an appeal to the FTT would not have been a suitable alternative remedy, for the reasons given by my Lady.
- For those reasons, I too would allow the appeal on Grounds 2 and 4 and quash the Decision. However, that will be a Pyrrhic victory for Mr Tomlinson, given that the sad sequel to the Respondent's unlawful decision to refuse his application for entry clearance means that the exceptional circumstances found by the FTT no longer exist. Although I have considerable sympathy for Mr Tomlinson, we are unable to wind back the clock so as to put right the historic injustice.
Lord Justice Bean:
- I agree with both judgments.
