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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> SA v Secretary of State for the Home Department [2025] EWCA Civ 357 (28 March 2025) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2025/357.html Cite as: [2025] EWCA Civ 357

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION
AND ASYLUM CHAMBER)
Upper Tribunal Judges Blundell and Kebede
UI-2023-004680

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/03/2025

This judgment was handed down remotely at 10.30 am on 28^th March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives. .............................

Lady Justice Andrews:

INTRODUCTION

1. The central issue which arose for determination in this second appeal was whether, in circumstances in which the Upper Tribunal (UT) identified for itself a fundamental jurisdictional error in the determination by the First-tier Tribunal (FtT) of an appeal under section 82(1)(c) of the Nationality, Immigration and Asylum Act 2002 ("NIAA"), which had not been the subject of argument before it, procedural fairness required the UT to draw the point to the attention of the parties and afford them an opportunity to make submissions about it before deciding the appeal on that ground.
2. Having now heard full legal argument on both sides, I have concluded that the UT was not only entitled to but obliged to consider the point that it did, and that it reached the correct decision. However, for reasons which I shall explain, I consider that the UT should have drawn the point to the attention of the parties and at least invited short written submissions on it before making its final determination. Whilst procedural fairness does not inevitably require giving a party a right to be heard on a point which a court or tribunal takes of its own motion, it would rarely be appropriate to proceed without doing so.
3. In the event, the appellant has suffered no prejudice from the course which was adopted, because the procedural irregularity was capable of being addressed and cured on appeal. No further fact-findings were needed, and we were able to hear submissions on the discrete legal issue which the UT had raised and decide it for ourselves. In those circumstances there was nothing to be gained by sending the matter back to the UT for a further hearing. I have concluded that the UT was right for the reasons that it gave.

THE RELEVANT LEGAL FRAMEWORK

4. The relevant statutory provisions concerning appeals in respect of international protection and human rights claims are contained in Part 5 of the NIAA. Section 82 provides as follows:

"82 Right of appeal to the Tribunal

(1) A person ("P") may appeal to the Tribunal where –

a. the Secretary of State has decided to refuse a protection claim made by P;

b. the Secretary of State has decided to refuse a human rights claim made by P; or

c. the Secretary of State has decided to revoke^[1] P's protection status.

(2) For the purposes of this Part –

a. A "protection claim" is a claim made by a person ("P") that removal of P from the United Kingdom –

i. Would breach the United Kingdom's obligations under the Refugee Convention, or

ii. Would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;

b. P's protection claim is refused if the Secretary of State makes one or more of the following decisions –

i. That removal of P from the United Kingdom would not breach the United Kingdom's obligations under the Refugee Convention;

ii. That removal of P from the United Kingdom would not breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;

c. a person has "protection status" if the person has been granted leave to enter or remain in the United Kingdom as a refugee or as a person eligible for the grant of humanitarian protection;

d. "humanitarian protection" is to be construed in accordance with the immigration rules;

e. "refugee" has the same meaning as in the Refugee Convention.

(3) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part."

5. Section 84 of the NIAA provides, so far as is relevant, as follows:

" 84 Grounds of Appeal

(1) An appeal under section 82(1)(a) (refusal of protection claim) must be brought on one or more of the following grounds –

a. That removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention;

b. That removal of the appellant from the United Kingdom would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;

c. That removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention);

…

(3) An appeal under section 82(1)(c) (revocation of protection status) must be brought on one or more of the following grounds –

a. that the decision to revoke the appellant's protection status breaches the United Kingdom's obligations under the Refugee Convention;

b. that the decision to revoke the appellant's protection status breaches the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection.

(Emphases added).

6. Thus it can be seen that an appeal against the refusal of refugee status (or of a claim to be entitled to humanitarian protection) follows a separate pathway from an appeal against a decision to revoke a person's protection status. In the former case, the focus is on whether removal of the person concerned would put the UK in breach of its international obligations or would be unlawful under section 6 of the Human Rights Act; in the latter case, the focus is on whether the decision to revoke the protection status previously granted puts the UK in breach of its international obligations.
7. Paragraph 6 of the Immigration Rules defines "humanitarian protection" as "status granted under paragraph 339C and which has not been revoked under paragraphs 339G to 339H".
8. Paragraph 327EA of the Immigration Rules defines a claim for humanitarian protection in these terms:

"Under this Part, a claim for humanitarian protection is a request by a person for international protection due to a claim that if they are removed from or required to leave the UK, they would face a real risk of serious harm (as defined in paragraph 339CA) in their country of origin, and they are unable, or owing to such risk, unwilling to avail themselves of the protection of that country."

9. By paragraph 327EC, if someone makes a claim for humanitarian protection they will be deemed to be an asylum applicant and to have made an application for asylum for the purposes of the Immigration Rules. That means that initially they will be assessed under paragraph 335 for refugee status. It is only if that application is refused that the Secretary of State will then go on to consider the claim for humanitarian protection. That reflects the position that a claim for humanitarian protection is a genuine alternative to a claim for asylum, designed to afford protection to persons who need it but do not meet the qualifying criteria under the Refugee Convention, such as those whose lives or safety, if returned to their home area, would be imperilled by endemic violence: see the explanation of the history of and relationship between claims for asylum and claims for international protection set out by Sedley LJ in QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620, [2011] 1 WLR 689, particularly at [7] to [9].
10. Paragraph 339L provides that it is the duty of the person applying for refugee status or humanitarian protection to substantiate their protection claim.
11. Paragraph 339C of the Immigration Rules provides as follows:

"Grant of humanitarian protection

339C. An asylum applicant will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:

(i) they are in the United Kingdom or have arrived at a port of entry in the United Kingdom

(ii) they are not a refugee within the meaning of Article 1 of the 1951 Refugee Convention;

(iii) Substantial grounds have been shown for believing that the asylum applicant concerned, if returned to the country of origin^[2], would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail themselves of the protection of that country; and

(iv) they are not excluded from a grant of humanitarian protection."

"Country of origin" is defined in paragraph 352G as "the country or countries of nationality or, for a stateless person, the country of former habitual residence."

12. Paragraph 338A of the Immigration Rules states that refugee status shall be revoked if paragraph 339AB applies. That paragraph provides as follows:

"Misrepresentation

339AB. This paragraph applies where the Secretary of State is satisfied that the person's misrepresentation or omission of facts, including the use of false documents, were decisive for the grant of refugee status and the person does not otherwise qualify for refugee status under paragraph 334."

13. Similarly paragraph 339G of the Immigration Rules provides that a person's humanitarian protection granted under paragraph 339C must be revoked if any of paragraphs 339GA, 339GB or 339GD apply. Paragraph 339GD substantially mirrors 339AB. Paragraph 339H provides that:

"when a person's humanitarian protection is revoked any limited or indefinite leave which they have may be curtailed or cancelled."

FACTUAL BACKGROUND

14. The appellant is a protected party who is represented in these proceedings by a solicitor who was appointed by the Court of Protection as her Deputy on 8 June 2018. She has suffered from serious mental health issues for many years, and in consequence she lacks the capacity to litigate. For this and other reasons there are anonymity orders in place. I shall refer to her, as she was referred to in the tribunals below, as "SA".
15. SA entered the UK on a visitor visa in November 2000, which expired in November 2002. The application for that visa was recorded as having been made from Dubai. She applied for asylum in February 2002 together with her child (then aged 1). She claimed that she was a national of Saudi Arabia born in April 1982, and that at the age of 13 she had been forced by her father to marry a friend of his, a man in his seventies. She had fallen pregnant after an adulterous affair with a much younger man she had met in London, and she and her baby were both at risk of serious harm at the hands of her husband and his associates and/or her father, were they to return to Saudi Arabia. She asserted that her husband (whom she did not name) was in a position to be able to influence the state institutions such that she could not look to them for protection; on the contrary, he would be able to use those institutions as a means of persecution, and in consequence both her life and that of her child would be at serious risk.
16. SA's protection claim appears to have been put on hold whilst she made an unsuccessful claim for leave to remain as a business investor. The revived protection claim was refused by the SSHD on 15 July 2008, and again following reconsideration on 7 November 2008. SA then appealed successfully to the FtT. On 9 February 2009 she was granted refugee status until February 2014. She was granted indefinite leave to remain ("ILR") on 14 August 2014.
17. The Secretary of State subsequently became aware of information which called into question SA's claimed nationality. This included confirmation by the Saudi Embassy that the Saudi birth certificate she had supplied in support of her claim for refugee status was false. It transpired that she had entered the UK with a valid entry clearance as a Yemeni citizen with a right of residence in the United Arab Emirates ("UAE") and that she had a Yemeni passport which she had used to secure residency in (and to travel to and from) the UAE.
18. On consideration of that information, the Secretary of State formed the view that SA had obtained her refugee status by deliberate and dishonest misrepresentations. Had her Yemeni identity been known, the Secretary of State would have identified that the inclusion criteria of Article 1A(2) of the Refugee Convention were not met, and would not have granted her refugee status.
19. The matter was referred to and reviewed by the UN High Commissioner for Refugees, whose view was that the Secretary of State had enough evidence to shift the burden of proof to SA, but that she should be afforded an opportunity to answer the evidence before any decision to revoke her status was taken.
20. On 23 October 2020, the Secretary of State sent SA a notice of intention to revoke her refugee status for those reasons. She was asked to provide any reasons why this action should not be taken, including any evidence in support. As SA lacked the capacity to engage in the process herself, a response was sent by her legal representatives. Having considered that response, the Secretary of State remained of the view that SA's refugee status should be revoked under paragraph 339AB, and a decision letter to that effect was sent to her legal representatives on 24 September 2021. She was invited to make any representations about any risks that she might face were she to return to Yemen, and also to raise any other legitimate reason she might have to remain in the UK. SA (and her representatives) have never availed themselves of that invitation.
21. On 6 October 2021, SA appealed the revocation decision on both of the grounds in section 84(3) of the NIAA. She claimed that she had not obtained refugee status by fraud, that she is not a Yemeni national, that her Yemeni passport was obtained by deception, and that even if certain elements of her case were found to be fictitious, her mental health difficulties meant that it was impossible to establish that she had the necessary intent to deceive the UK authorities at the relevant time.
22. Following a two day hearing at which SA herself did not give evidence, in a determination promulgated on 1 September 2023, a Panel of the FtT (FtT Judges Holmes and Froom) found that the Secretary of State had established that SA has at all material times been a Yemeni citizen, born in the Yemen in 1977, and that she has always known this to be the case. They found that SA had not established that she was genuinely a Saudi Arabian citizen and that looking at the evidence as a whole:

"it is clear that the Respondent has made out her case that the Appellant deliberately and dishonestly sought to conceal her Yemeni citizenship when she first made her application for asylum, and in the course of her appeal against the Respondent's refusal to recognise her as a refugee."

They went on to find that they were "not satisfied that the core of her account was anything other than a fiction." She did not face a risk of harm at the hands of her father or her husband anywhere in the world, whoever in truth those individuals might be. "We are unable to make any positive finding as to their identity but we are not satisfied that she has yet disclosed them." Therefore SA's appeal under section 84(3)(a) of the NIAA was dismissed.

23. However, the Panel then went on to allow SA's appeal under section 84(3)(b). It is worth setting out in full paragraph [158] of the FtT determination:

"The Appellant is not a refugee. However, as mentioned above, Mr Gajjar [counsel for SA] did confirm that the Appellant also appealed on the ground provided by section 84(3)(b) albeit he chose not to elaborate further. It follows from the concession made by [the Home Office presenting officer] that removing the Appellant to Yemen would breach her rights under Article 3 of the Human Rights Convention, and our finding that the Appellant is Yemeni, not Saudi, that she is entitled to a grant of Humanitarian Protection by virtue of paragraphs 339C and 339A(iii) of the Immigration Rules. Removal is not in prospect but her circumstances entitle her to status. We reach this conclusion notwithstanding our inability to rule out that the Appellant may have other nationalities which she has not disclosed to us."

24. Pausing there, the FtT allowed SA's appeal under section 84(3)(b) in circumstances where neither SA nor her legal representatives had ever asserted that she was a Yemeni national; on the contrary she expressly disavowed being so (and that continues to be her case). She had never claimed any form of international protection on the basis that she was a Yemeni national who faced a serious risk of harm on return to Yemen. Her true identity remained a mystery, and the story that she had told in order to obtain her refugee status, about her father and her arranged child-marriage, and the risks she allegedly faced in Saudi Arabia, was a tissue of lies. Moreover, her counsel had chosen not to make submissions to the FtT as to how in those circumstances an appeal under section 84(3)(b) could possibly succeed.
25. Both parties sought permission to appeal, which was refused by the FtT. The Secretary of State renewed her application to the UT. Her Grounds of Appeal stated at paragraph 3:

"The Panel then allowed the appeal under Sect 84(3)(b) in relation to Humanitarian Protection [159]. The SSHD respectfully contends that they materially erred for want of jurisdiction in so doing."

The Grounds then articulated an argument, based on Essa (Revocation of protection status appeals) [2018] UKUT 244 (IAC), to the effect that because the appeal was brought against the revocation of refugee status, it was incumbent upon the FtT to determine the appeal only under Section 84(3)(a), and that it could not decide it under Section 84(3)(b). It was submitted, among other matters, that the Tribunal "materially erred by going on to allow the appeal on a Humanitarian Protection (HP) basis for which status had never been granted and in an appeal against a decision which did not engage removal given the extant ILR".

26. Permission to appeal was granted by UT Judge Blundell on 29 November 2023 on the basis that it was arguable that the FtT had no jurisdiction to consider the ground of appeal in section 84(3)(b) because SA was a refugee and was only entitled "to rely on the ground that the revocation of that status was contrary to the Refugee Convention."
27. However after hearing submissions from both parties, the UT Panel (UT Judges Blundell and Kebede) rejected that argument, on the basis that as a matter of construction of the plain language of the relevant statutory provisions, a person who has been granted leave to enter or remain in the UK as a refugee or as a person eligible for a grant of humanitarian protection may advance either of the grounds in section 84(3) when they appeal against the revocation of either form of protection status. They pointed out that a person cannot hold refugee status and humanitarian protection status simultaneously; the latter only arises for consideration if the former has been refused. Since the draftsman had deliberately provided that a person might appeal on "one or more of the grounds" specified in sub-paragraphs (a) and (b), the intention must have been that a person who held either type of protection status could advance one or both of the grounds in section 84(3). The decision in Essa did not assist, because the applicant in that case was accepted to have been a refugee and therefore never qualified for humanitarian protection.
28. However, the UT then went on to identify at [28] that the proper focus of the enquiry required by section 84(3)(b) was whether the revocation of SA's protection status breached the UK's obligations in relation to persons eligible for a grant of humanitarian protection. That phrase had to be construed in accordance with the Immigration Rules. They referred to the definition of "humanitarian protection" under paragraph 6 of the rules and went on to consider paragraph 339C. After observing that the FtT received no proper argument on the propriety of considering whether the appellant was eligible for humanitarian protection by reference to Yemen, they held at [32] that the FtT fell into error because it was required to frame its enquiry by reference to the application which SA had originally made, which was an application for asylum based on the claim that she faced persecution or serious harm in Saudi Arabia. That historical claim provided the "country of origin" on which the FtT was to focus.
29. Whilst it had been open to SA to submit representations to the Secretary of State in regard to her protection needs as a Yemeni national, as the Secretary of State had made clear in the impugned revocation decision, she had not done so. The Panel said:

"We consider that the Secretary of State's decision reflected the proper focus of the Tribunal's subsequent assessment. It should have focused on the United Kingdom's obligations towards the appellant as a claimed national of Saudi Arabia and it should not have acceded to Mr Gajjar's submission, made at [23]-[28] of his skeleton argument, that it should consider the risk to her in Yemen. The applicant had never asserted a risk on return to Yemen and in the event she wished to assert that there was such a risk, it was for her to do so in the manner set out in the Secretary of State's decision. Until she did so, the only country of origin on which the FtT was entitled to focus was that previously identified to the Secretary of State."

30. They added for good measure at [34] that the FtT should not have relied on the statement by the presenting officer that removal of SA to Yemen would breach her rights under Art 3 ECHR, given that (as the FtT had itself acknowledged) no question of the ECHR arose in the appeal. That concession was irrelevant to the determination of the appeal before it. The UT concluded at [35] that the only proper outcome was the dismissal of the appeal.

THE GROUNDS OF APPEAL

31. SA's primary case (Ground 1) was that it was procedurally unfair of the UT to make the findings that it did at [29] to [35]. On behalf of SA, Mr Gajjar submitted that the point which ultimately proved fatal to her case was not raised in the Secretary of State's Grounds of Appeal to the UT, it was not within the scope of the grant of permission to appeal, and in any event it had not been the subject of any oral argument at the hearing.
32. Mr Gajjar contended that it was not open to the UT to take the point of its own motion because it was not "obvious" in the sense in which that expression was used in R v Secretary of State for the Home Department, ex parte Robinson [1998] QB 929. The scope of the principle of "Robinson obviousness" was limited, he submitted, to situations in which a tribunal or court was obliged to consider a point which had a strong prospect of success and which had not been raised by the parties themselves, because of the risk that leaving the situation uncorrected would put the UK in breach of Convention law. The point taken by the UT was not Robinson obvious in that sense, and even if it were, such a point cannot be taken by a tribunal without adequate prior notice being given to the parties. Mr Gajjar very fairly accepted that in principle it would be open to the UT to take a Robinson obvious point after the grant of permission to appeal, subject to raising it with the parties and giving them the opportunity to address it.
33. Whilst he also accepted that it is possible to cure procedural unfairness by hearing full argument on appeal, particularly where (as in the present case) there are no further fact-findings to be made and the case turns on a discrete point of law, Mr Gajjar submitted that this would not be the right course for us to take if we were to form the view that there had been procedural unfairness in this case. In the light of the importance of the right to a fair hearing, the appropriate course would be to set aside the UT decision and remit the matter to the UT to reconsider the matter afresh. In support of that proposition he cited two decisions by Presidential Panels of the UT, MM (unfairness, E&R) Sudan v Secretary of State for the Home Department [2104] UKUT 105 (IAC) and AM (fair hearing) Sudan [2015] UKUT 656 (IAC).
34. In the alternative, if the Court of Appeal decided not to remit, Mr Gajjar submitted that the UT's findings were perverse or not in accordance with the rules (Ground 2). SA's application was for international protection and the wording of section 84(3)(b) did not confine a humanitarian protection assessment to the claim as it was originally made.
35. On behalf of the Secretary of State, Ms Elliot submitted that once it had determined that SA was entitled to rely on the humanitarian protection ground in section 84(3)(b), the UT was duty bound to apply its own understanding of the relevant law to identify that the correct approach had been taken by the FtT, and if there was a clear and obvious error of law in the decision it was bound to say so. To do otherwise would be to risk not giving proper effect to the UK's international obligations in respect of humanitarian protection. She relied upon Robinson (above) and Gurung v Secretary of State for the Home Department [2002] UK IAT 4870.
36. Ms Elliot submitted that the point identified by the UT was "obvious" in the Robinson sense (i.e. that it had strong prospects of success – indeed, she contended that it was plainly right) and that the scope of that principle was not as limited as Mr Gajjar suggested. Although Robinson and Gurung were both examples of cases where the overlooked point assisted the person claiming international protection, subsequent authorities had clarified that the principle can apply to situations in which the overlooked point assisted the Secretary of State, see for example A (Iraq) v Secretary of State for the Home Department [2005] EWCA Civ 1438, and AZ (error of law; jurisdiction; PTA practice) Iran v Secretary of State for the Home Department [2018] UKUT 245 (IAC). ("AZ(Iran)").
37. In Bulale v Secretary of State for the Home Department [2008] EWCA Civ 806 Buxton LJ stated that the basis of the Robinson doctrine was that, as organs of the state, the appellate authorities are bound to exercise their powers to ensure the state's compliance with its international obligations. He went on to confirm that an appellate court could take a point of its own motion to ensure such compliance, even in a case where the lower court or tribunal was not obliged to take it of its own motion. In that case, the Court of Appeal did not consider the point with which it was concerned to be Robinson obvious, but nevertheless allowed it to be raised for the first time on appeal.
38. Ms Elliot submitted that because of the underlying jurisprudential basis for the Robinson principle, Mr Gajjar was wrong when he submitted that it could only be invoked to assist the Secretary of State if an individual potentially fell within one of the categories of persons who were excluded from international protection, and that if and insofar as AZ (Iran) appeared to endorse that proposition, the Presidential Panel of the UT in that case was looking at the matter from too narrow a perspective. In principle, she submitted, the Robinson doctrine could be invoked in any case in which it was strongly arguable that the person concerned did not qualify for protection. The UK would be in breach of its international obligations if as a result of a legal error it afforded humanitarian protection to someone who did not qualify for it. Revocation of their status is mandatory in such circumstances. In support of that proposition she relied on the decision of the CJEU in Bilali v Bundesamt für Fremdenwesen und Asyl [2019] 4 WLR 39, which, whilst she accepted it was not strictly binding, was of persuasive force and should be followed by analogy.
39. Ms Elliot pointed out how problematic it would be in practice to try and implement a decision that someone is eligible for the grant of humanitarian protection based on facts that they actively deny. A person granted humanitarian protection is usually afforded leave to remain for an initial period of five years, after which the situation in their country of origin and the risks they claim to face on return will be reviewed. If the Secretary of State does not know what risk of serious harm is said by the person concerned to arise on their return to Yemen, how can she assess in five years' time whether humanitarian protection status is still warranted?
40. On the question of procedural fairness, Ms Elliot submitted that the question of what procedural fairness required was always fact-specific. In this particular case there was no unfairness caused by the UT's failure to invite the parties to make submissions on the point it identified. The fact-findings by the FtT were undisturbed. The point the UT considered went to the heart of the FtT's jurisdiction and there was nothing that SA's representatives could have submitted which would have had any prospect of giving rise to a different result. The UT's decision was not decisive of SA's status, because, as the UT recognised, it was still open to her to make a claim for humanitarian protection on the basis of her Yemeni nationality (or some other nationality) and to substantiate the claim in the manner set out in the Immigration Rules.

DISCUSSION

41. In Virk & others v Secretary of State for the Home Department [2013] EWCA Civ 652 the Secretary of State had refused the first appellant's application for further leave to remain in the UK as a student, which was made ten days out of time. She and her dependents had appealed unsuccessfully to the FtT and then obtained permission to appeal to the UT on substantive grounds which the Secretary of State indicated she did not oppose. Directions were given by an UT judge which indicated that unless the parties showed cause to the contrary, the case would be disposed of without a hearing on the basis that the appeal would be allowed and the matter remitted to the Secretary of State for reconsideration.
42. The appeal was disposed of on paper without an oral hearing, but a (different) UT judge dismissed the appeal on the basis that the FtT had acted without jurisdiction, because there was no right of appeal against a decision made to refuse an out of time application. The appellant was granted permission to appeal to the Court of Appeal both on the question of whether there had been procedural unfairness and on the question whether the point about jurisdiction remained a bar to the appeal in the UT when it had not been taken in the FtT (and thus had not been decided by the FtT.)
43. The Secretary of State conceded the point on procedural unfairness on the basis that in the light of the earlier directions, the UT judge should have at least given the appellants the opportunity to consider and make submissions on the jurisdictional issue. The Court of Appeal noted the concession, implicitly accepting that it was rightly made. It therefore only considered the question whether it was open to the UT to take the point on jurisdiction of its own motion in those circumstances. It held that a judicial tribunal must have jurisdiction to decide (including by reference to any disputed facts) whether it does have jurisdiction. It was open to either the FtT or the UT to take the point about jurisdiction notwithstanding the failure of the Secretary of State to raise it herself. The UT judge was therefore entitled to rely on the FtT's lack of jurisdiction in order to decide the appeal and the only objection lay in the way in which the judge had proceeded to determine the matter [23]. Given that the appellant's counsel accepted that the jurisdiction point, if open, was fatal to his clients' appeal, the Court of Appeal set aside the decision of the UT but exercised the power under s.14(2)(b)(ii) of the Courts and Tribunals Act 2007 to re-make it, and dismissed the appeal.
44. On proper analysis, it seems to me that this case is closer to Virk than to the Robinson line of authorities, because the issue which the UT identified was undoubtedly one of jurisdiction. Although it was not the focus of the Ground of Appeal for which permission was given, and it was not the way in which the matter was argued, that Ground was expressed in terms that were wide enough to embrace it (see [26] above). Even if that had not been the case, a failure by the Secretary of State to raise the point in her Grounds of Appeal would not have been a bar to the UT Panel raising it themselves, because it went to the heart of the FtT's appellate jurisdiction under the two limbs of section 84(3) of the NIAA.
45. That being so, it is unnecessary to dwell on the question of where the boundaries of the Robinson principle are to be drawn. I do accept, however, that since the underlying justification for allowing a strongly arguable point to be raised by the tribunal of its own motion is to ensure compliance by the state with its international obligations, the principle cannot be as narrowly confined when it operates in favour of the Secretary of State as the Presidential Panel of the UT suggested in AZ (Iran) at [64]. It must include all situations in which the point identified by the court or tribunal gives rise to a real danger of the state recognising someone who does not qualify for international protection as being entitled to such protection, as well as vice versa. The application of an express exclusion to the facts is simply one example, possibly the most likely example, of when such a scenario would arise.
46. Of course, the UT in AZ (Iran) made those observations in the context of considering the rather different question of when permission to appeal should be given to raise a (non-jurisdictional) ground which was not raised or argued in the lower tribunal. The Panel in that case was right to emphasise at [70] that "there must be an extremely sound reason for, in effect, compelling the parties to an appeal to engage with a matter that neither of them has identified." The sound reason in a Robinson-type case is the negative impact on the state's adherence to its international obligations that would be likely to arise from a failure by the tribunal to determine the point.
47. In the present case, as the UT rightly identified, the target of the appeal under section 84(3) is the decision to revoke the appellant's protection status. SA was granted a protection status (as defined in s.82(2)(c) of the NIAA) as a refugee, on the basis of a claim which was premised on various key facts misrepresented by her to the Secretary of State, as well as to the FtT which heard her asylum appeal. These were not confined to the question of her claimed nationality, but included the entire fictitious history on which she had relied as giving rise to the alleged risk of serious harm on return to Saudi Arabia. Revocation of her refugee status was mandatory under the Immigration Rules once it was established that she had obtained it by material and dishonest misrepresentations.
48. The finding that the decision to revoke the appellant's refugee status does not breach the UK's obligations under the Refugee Convention, because the facts were not as she claimed, also necessarily answered the question whether the decision to revoke her protection status, i.e. her refugee status, breached the UK's obligations in relation to persons eligible for a grant of humanitarian protection. The question was not whether her removal would breach those obligations, as it would have been on an appeal against a refusal to grant her refugee status (or humanitarian protection in the alternative). Removal is not an automatic consequence of revocation, and in the present case SA still has ILR (though the revocation of her protection status would leave it open to the SSHD to exercise a discretion whether to curtail or to cancel it under paragraph 339H).
49. As the UT found at [32], the FtT was required to frame its enquiry by reference to the application which SA had originally made. It could not decide an appeal under section 84(3)(b) by reference to a claim that had never been made by SA and facts on which she did not rely (and positively disputed). Mr Gajjar's submission to the contrary was unsupported by any analysis of the legislative scheme or the Immigration Rules, whereas Ms Elliot demonstrated that there is an indissoluble link between the facts on which the claim for protection is made and the grant of protection status in response to that claim. Once the FtT had concluded that SA was not from Saudi Arabia and was not at risk there, that sufficed to dispose of the appeal under both limbs of section 84(3). There was no factual basis for the revoked status to continue to exist. The only proper outcome was dismissal of the appeal. The UT was therefore right for the reasons that it gave. I would add that it was also plainly right about the presenting officer's concession. That could not confer a jurisdiction upon the FtT which it did not otherwise possess. Ground 2 of the Grounds of Appeal therefore fails.
50. That brings me to the question whether there was procedural unfairness. As Lord Mustill observed in R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 at 560E:

"the principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects."

51. Whilst cases may arise in which a procedural irregularity may be held to have caused no unfairness because it would have made no difference to the outcome, such cases are rare, and an appellate court should exercise caution in reaching that conclusion, see e.g. R v Chief Constable of Thames Valley Police, ex parte Cotton [1990] IRLR 344. In that case, which concerned a claim for judicial review of a decision to dismiss a police officer on grounds of unfitness because he was overweight, it was stressed by this Court that natural justice is concerned with matters of substance and not the observance of technicalities. The Court of Appeal dismissed the appeal in that case on the basis that there was no unfairness because, looking at the matter in the round, the officer had been given a full opportunity to put his case.
52. In the course of his concurring judgment, Bingham LJ (as he then was) referred to an argument raised by the respondent that if a further opportunity had been given to make representations, the final decision would have been the same. After considering various authorities which he characterised as leaving the law in a state of uncertainty, and quoting Sir William Wade's reference in his textbook on Administrative Law to "the dubious doctrine that a hearing would make no difference" he said this:

"While cases may no doubt arise in which it can properly be said that denying the subject of a decision an adequate opportunity to put his case is not in all the circumstances unfair, I would expect these cases to be of great rarity".

53. Bingham LJ gave a number of reasons for this conclusion, which included the following:

(1) Unless the subject of the decision has had an opportunity to put his case it may not be easy to know what case he could or would have put if he had had the chance.

…

(4) In considering whether the complainant's representations would have made any difference to the outcome, the Court may unconsciously stray from its proper province of reviewing the propriety of the decision making process into the forbidden territory of evaluating the substantial merits of a decision.

(5) This is a field in which appearances are generally thought to matter.

(6) Where a decision maker is under a duty to act fairly the subject of the decision may properly be said to have a right to be heard, and rights are not to be lightly denied."

54. Bingham LJ expressly disassociated himself from the view (expressed by Simon Brown J in the lower court) that Mann J, in a similar type of case where there had been a finding of procedural unfairness, should not have made a declaration of procedural impropriety because he had formed the view that any further representation by the constable concerned would have been most unlikely to make any difference. Bingham LJ said that "the judge was in my view fully entitled to conclude that 'a breach of the requirements of fairness is a serious matter even if it be devoid of practical consequences'."
55. A Presidential Panel of the UT in MM (Unfairness, E&R) Sudan [2014] UKUT 105 (IAC) held that the fourth of Lord Bingham's reasons in ex parte Cotton applies fully to appeals on point of law from a decision of the Ft-T to the UT. The unfairness in that case arose from the making of adverse fact-findings in the erroneous belief that a crucial letter sent by the appellant's solicitors to the Home Office did not exist. In circumstances of that nature, the UT understandably held that as a "fairly strong general rule" the appropriate course would be to remit the matter to a newly constituted Ft-T.
56. The present case is very different, because there is no question of the fact-findings being disturbed. This Court is entitled to determine the point of law for itself. The scenario is not quite the same as in Virk, where the unfairness stemmed largely from the fact that both parties had been led to expect that the appeal would be allowed on the papers. One cannot assume that the Secretary of State would have made the concession that she did in that case if the directions had not been given in the form that they were. The jurisdiction point in that case was a very simple one, which once raised, was obviously unanswerable. Nothing that could have been submitted by the appellants to the UT had any prospect of making a difference to the outcome. Yet I am not convinced that the Court of Appeal's implicit acceptance that the UT erred in failing to give them the chance to be heard on the jurisdictional issue was solely based on the premise which underlay the directions for a paper determination.
57. In the present case, it is clear in the light of hindsight that if the UT Panel had sought submissions on the matter, SA would not have been able to find an answer to the UT's interpretation of the relevant statutory provisions. The Secretary of State would have been able to demonstrate to the Panel that their analysis was plainly correct. Yet, however obvious that might seem now, it took Ms Elliot an hour of fairly brisk oral submissions to explain why the UT's position was unassailable, by reference to the underlying legislation and numerous authorities.
58. Like Lord Bingham, despite the dicta of other eminent judges which appear to support it, I have grave reservations about reaching a conclusion that denying a party the opportunity to put their case in answer to a point taken by the tribunal of its own motion is not unfair because the outcome would have been the same regardless. I am encouraged by the fact that similar views on the issue of "pointlessness" were expressed more recently (in a somewhat different immigration context) by Lord Kerr and Lady Black JJSC in Pathan v Secretary of State for the Home Department [2020] UKSC 41; [2020] 1 WLR 4506 at [118] to [134], particularly at [131]; and by the emphasis placed by the Supreme Court in that case, particularly by Lady Arden at [48] to [52], on the importance of the principle of procedural fairness and the role that it plays in the context of natural justice and the rule of law. Justice should be seen to be done, and in principle a person should be afforded the right to be heard on a point of law which may be decided against them, however strong the point may seem.
59. In the present case, the issue was not one of peripheral relevance, but determined the outcome of the appeal. In my judgment, once the UT Panel had formed a provisional view that the FtT went wrong for reasons that had not been argued before them, they should have invited submissions from the parties before reaching a final decision. However, in the event, the fact that SA's counsel was denied the opportunity to argue against the position which the UT took on the scope of the FtT's jurisdiction was overcome by the fact that he had a full and fair opportunity to argue the point before the Court of Appeal.

CONCLUSION

60. Having considered the arguments on the substantive merits, I have concluded that the UT was bound to dismiss the appeal on the basis that the FtT had no jurisdictional basis for deciding the appeal before it in the manner in which it did. In those circumstances there was nothing at all to be gained by sending the matter back to the UT for a re-hearing.
61. For those reasons, I would dismiss the appeal on the basis that the procedural unfairness I have identified did not result in any material prejudice to the appellant. Any such prejudice has been overcome by the appeal process, and ultimately the UT was right for the reasons that it gave.

Lord Justice Phillips:

62. I agree.

Lord Justice Arnold:

63. I also agree.

Note 1   As the FtT in this case pointed out at [11] of its determination and was confirmed by the UT at [5], the word “revoke” is something of a misnomer. It means the same as “cancel” using UNHCR terminology, and invalidates the grant so as to render the refugee status null and void from the outset.    [Back]

Note 2   This phrase was substituted for “country of return” by an amendment to the Immigration Rules which took effect between the revocation decision in this case and the hearing before the FtT. Nothing turns on this, as the amendment was designed to cure a perceived disparity between the former wording and the language of the EU Qualification Directive on which these provisions were based (Directive 2004/83/EC).    [Back]