[2025] UKUT 00276 (IAC)

The principle of avoiding absurdity is stated in Bennion at para 13.1:

“The court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by the legislature.”

This principle of interpretation has been repeatedly emphasised by the higher courts, including recently by the Supreme Court in Project Blue, where Lord Hodge said at §31:

“it is without question a legitimate method of purposive statutory construction that one should seek to avoid absurd or unlikely results.”

It is accepted by the Respondent, to our mind correctly, that in determining whether a decision is excluded by article 3(m) of the 2009 Order, what is important is the substance of the decision rather than the label placed on it by the Tribunal. However, that is at odds with the Respondent’s submission that a decision which is taken at the outset of a hearing is “preliminary”, and hence excluded from appeal. We fail to see how logically the substance of a decision changes contingent upon when that decision is taken.

It is noteworthy that the Respondent cites and relies on the heading of the First-tier Tribunal’s decision and cites it at para 9 of the Respondent’s skeleton argument:

“The FTT’s ruling, by its heading, explained its nature:

‘Decision on validity of appeal and reason (preliminary issue)’”

The First-tier Tribunal’s reference to a “preliminary issue” is likely to refer to rule 4 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Rule 4 provides as relevant:

“Case management powers

4.-(1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure.

…

(3)

In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may-

…

(e)

provide for a particular matter to be dealt with as a preliminary issue”

The consequence of the Respondent’s position is that if a decision of law fundamentally connected to the legal substance and merits of a decision were taken as a “preliminary issue” under rule 4(3)(e) on the first day of, say, a two-day hearing, it would not be appealable as an error of law. That would be because it was labelled as “preliminary” and dealt with as a “preliminary issue”.

However, to continue the analysis, if precisely the same decision were reached for exactly the same reasons at the end of the substantive hearing the next day, it would be appealable to the Upper Tribunal as an error of law. This creates obvious and avoidable absurdity. We cannot believe this was the legislative purpose when enacting the statute and empowering the creation of subordinate procedural rules. We accept the principle that one must evaluate purpose objectively. It cannot have been the legislative purpose of the 2009 Order to increase uncertainty over appeal rights; this would run contrary to the scheme and objects of the 2007 Act.

We detect no rational reason why a decision on the true legal substance of a case, if taken as a matter of good and prudent case management at an earlier stage to avoid as here unnecessary further evidence and hearing, is excluded from the statutory appellate scheme designed and enacted to create a direct appeal route within the tribunal structure for errors of law, but instead must be diverted into what is the remedy of last resort, judicial review.

We cannot accept the Respondent’s submission that whether a decision is preliminary depends on the chronological stage in proceedings which the decision is taken (“its nature”, as counsel put it). We reject the Respondent’s interpretation of JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78 and submission that it supports such a claim. Indeed, para 8 of the judgment makes clear that “no good reason of principle or policy” exists to exclude a decision on jurisdiction, at whatever stage made, from appeal.