Case No. UKUT-00629-(IAC)

[2014] UKUT 00342 (IAC) , which predated this statutory development, must be read with this adjustment. The fourth possible outcome of an appeal to the FtT, as Greenwood noted, was the following. If the effect of the Tribunal’s decision was to conclude that the decision of the Secretary of State under appeal was unlawful and the Tribunal did not substitute another decision: (a) i f the decision of the Secretary of State involved a determination of an application made by the litigant, a lawful decision remains to be made by the Secretary of State – and it is preferable that the FtT say so clearly; (b) a lternatively, if the challenge in the appeal was to an “own motion” decision of the Secretary of State, it would be a matter for the Secretary of State to decide whether a further decision should be made in the wake of the FtT’s decision. This is, in effect, a declaratory decision. 22. As noted above, in the seemingly interminable merry-go-round of legislative activity, section 86 has undergone a significant recent amendment. This is linked to the wholesale reduction in statutory rights of appeal e ffected by the amendments introduced by the Immigration Act 2014, operative from 20 October 2014. In this context, the exercise of juxtaposing the new section 82 with its predecessor is enlightening. This reduction in appealable decisions is accompanied by a significant pruning of the permitted grounds of appeal, which are enshrined in section 84. By section 85, the FtT is obliged to consider certain matters. By this route one arrives at section 86, which bears the cross heading “Determination of Appeal”. 23. In notable contrast with its predecessor, the new section 86 does not reproduce the two basic options of allowing or dismissing the appeal. In this respect, the drafting is both surprising and infelicitous. However, applying elementary dogma, it is t he function of every appellate tribunal and c ourt to resolve appeals, normally by allowing or dismissing them , unless directed otherwise by statute . I consider that any reconfiguration of this basic model would, given the legislative history, require clear and elaborative new provisions. There are none. The new statutory language is “ determine ”. I conclude that this encompasses the two basic options of either allowing or dismissing an appeal. The third option – noted in [21] above – of allowing an appeal with directions has clearly been extinguished by the repe a l of section 87 of the 2002 Act. I consider, however, that the fourth option noted above, with its two dimensions, continues to apply. This has been a feature of UTIAC jurisprudence for some years and, in the new legislation, Parliament has not taken the opportunity to interfere. 24. The effect of this analysis is that the answer to the question posed in [20] above is uncompromising: the FtT has no power to remit a case to the Secretary of State for any purpose. The principle which underpins this conclusion is that the FtT is a creature of statute and its powers are exclusively statutory in consequence. Any course which the statute does not, expressly or by implication, permit is forbidden. In this respect, the FtT is to be contrasted with the High Court which, by tradition of some longevity, is acknowledged to possess