In the recently reported case of MS (AS & NV considered) Pakistan [2010] UKUT 117 (IAC) the tribunal has taken on board the Court of Appeal judgment of AS and NV [2009] EWCA Civ 1076 and accepts that in more cases the tribunal will have to act as first instance decision maker.

AS and NV was about the separation of rights of appeal from grounds of appeal in sections 82 and 84 of the 2002 Act. Because of this slightly odd statutory separation, the Court of Appeal held that it does not matter what type of immigration decision gives rise to a right of appeal, any grounds can be relied on. For example, a decision to make a deportation order can be appealed not only on the grounds of being in breach of the immigration rules, but also on refugee, human rights, EU law and other grounds – even though the Home Office may not have considered those aspects of the case. That means the tribunal has to.

However, the tribunal rejected the imaginative submission that a section 120 notice was capable of in effect making a new application for the purposes of the Points Based System and therefore leading to the admission of new evidence on a new period of time after the date of the original application. This would have been a neat way of sidestepping the highly restrictive approach to the three month period for maintenance purposes imposed by the tribunal in NA and Others [2009] UKAIT 00025. Instead, we will have to await the outcome of the Court of Appeal’s upcoming consideration of the lawfulness and operation of the Points Based System.