Commentary on Sections Appeal to adjudicator Section 86: Determination of Appeal
227.This section describes what adjudicators are required to do in consideration of appeals under sections 82(1) or 83. Adjudicators will be required to determine any ground of appeal which is raised in response to any decision against which an appeal has been lodged or against which an appeal is to be treated as included by virtue of section 85(1). They must also determine any other matters which are raised which must be considered under section 85.
228.Subsection (3) states that an adjudicator must allow an appeal if he thinks a relevant decision was not in accordance with the law or that a discretion should have been exercised differently. Otherwise, the appeal must be dismissed (subsection (5)). A refusal to depart from the Immigration Rules does not count as the exercise of a discretion for this purpose (subsection (6)).
229.Subsection (4) indicates that a decision that a person should be removed from the United Kingdom will not be regarded as unlawful if the decision to remove could have been lawfully made under another provision. Thus if the adjudicator comes to a different conclusion from the Secretary of State about the person's nationality or immigration status, but nevertheless considers that the decision to remove is correct on its merits, the appeal does not have to be allowed on a technicality and the process re-started.