Case No. UKUT-00410-(IAC)

decision at most, a judicial act not constituting a “decision” within the meaning and intent of s 13. We elaborate on this assessment as follows.27. What is notable is that while there may be pauses in the process, s 12 does not allow the UT to stop until it has completed its task. The UT is not permitted merely to determine that the FtT decision contains an error and cannot stand. If it reaches that stage the UT is compelled by the statute (the word in s 12(2)(b)(ii) is ‘must’) to replace the decision or make arrangements for its replacement, that is, it must remit the case to the FtT or remake the decision itself. Both the language and the process preclude the characterisation of any of the steps on the way to the conclusion as a ‘decision’. The language precludes it because the section eschews the use of the word ‘decision’ and its cognates for each of the steps we have set out except any remaking of the decision of the FtT at the end of the process. The process precludes it because if either of the earlier steps were a ‘decision’ within the meaning and intent of the section it would in principle be appealable; and an appeal would destroy the continuity of the process enforced by s 12 as a whole, thereby rendering otiose and impotent the imperative command effected by the word ‘must’ in s 12(2)(b). 28. Instead, the section begins with a very clear signpost: the steps are steps ‘in deciding an appeal under s 11’. This means that the whole process is ‘deciding an appeal’ (which expresses with precision the full scope of the statutory power of the UT in this context): the intermediate steps are not deciding anything at all but are simply interim stages within the process of ‘deciding an appeal’ en route to the ultimate outcome, namely the UT’s decision on the appeal.29. Of course it goes without saying that the finding that the making of the FtT decision involved the making of an error of law and the determination of the question whether it should be set aside are judicial acts. But, for the reasons we have given, although they are parts of a decision-making process they are not themselves to be categorised as ‘decisions’ within the meaning and intent of s 13 .30. There is a further point, raised by Ms Anderson, which we consider to have some force. There are numerous decisions of the Court of Appeal, where there has been an appeal against the decision of the UT reached after termination of the process envisaged by s 12 and where the argument before the court has been that the UT ought not to have found an error of law. Sometimes those arguments are successful, and the Court of Appeal has restored the decision of the FtT or remitted the case to the UT. If Mr Khubber’s argument is right, the argument in these cases would have been directed to either the first (error of law) or second (set-aside) determination of the UT, which would typically have occurred some time before the final decision on the appeal. Mr Khubber’s argument unavoidably involves the proposition that countless appeals to the Court of Appeal have been well out of time. This reflection, in our judgement, confounds further the statutory construction espoused on behalf of the Appellant 31. In order to deal with one discrete issue canvassed at the hearing we also indicate what our view would be if we had been persuaded that the UT had already made in this case a ‘decision’ carrying in principle a right of appeal. In our judgement, if any of the steps taken so far by the UT constitutes a ‘decision’ within the meaning and intent of s 13, such is an ‘excluded decision’ within the meaning of Article 3(m) of the 2009 Order. 32. Article 3(m) excludes ‘any procedural, ancillary or preliminary’ decision made in relation to an appeal. We consider that there are good reasons for categorising the steps so far taken by the UT in this appeal as having the characteristics not merely of one but of all three of those categories. They are ‘procedural’ because they are part of the statutory procedure prescribed by s 12 and do not finally determine the merits of the appeal. They are ‘ancillary’ because they provide necessary support to the prime task of ‘deciding an appeal under s 11 (see s 12(1)), an adjunct to the central and ultimate task of the UT. They are ‘preliminary’ because they have to be made at an early rather than late stage of the process, necessarily preceding the performance of the ultimate task of the UT. If there were any doubt about their exclusion, we would pray in aid the same reasoning that we have deployed earlier: if these are ‘decisions’ there is no good reason to interpret the 2009 Order so as not to have them ‘excluded’ and there are very good reasons for interpreting the Order as excluding them from any right of appeal.