Why Is The Home Office Increasingly And Routinely Appealing Allowed FTT Decisions …..And Getting Away With it?

The Home Office appears to becoming a  serial lodger  of appeals and getting away  with it.

The Problem:

I have a stash of recently  allowed  appeal decisions  with a   corresponding   number  of clients anxiously awaiting  the outcome of   Home Office  permission applications  lodged in the First Tier Tribunal.   It  cannot be  the case that  all  the FTT  Judges who allowed  “my” several appeals heard in the last few weeks are getting it wrong.  If that is so then  there is a serious problem …….somewhere.

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When Things Go Wrong in the Court of Appeal: Harsher Criticism Reserved for Shortcomings of Home Office Presenting officers



“I  am yet to take  instructions  on  the point, Sir”


This should hopefully   never be  heard  uttered again  in the Tribunal by Home Office   Presenting Officers  upon a Judge making enquiry  about  relevant changes in the law or current  Home Office policy.  I say this  following the Court of Appeal’s  judgement in Koori & Ors v The Secretary of State for the Home Department [2016] EWCA Civ 552.  The Court’s  view in effect  was  that although both Appellants and the Secretary of  State  should attend appeal  hearings fully prepared in terms of  the law, however,  in particular where  matters of statutory changes are concerned, the  greater responsibility lies upon the  Home Office  Presenting Officers.  This surely is correct and it is surprising that  it has taken so long for this to be stated in a judgement.

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Meaning of “Unduly Harsh” in Deportation Appeals: The Court of Appeal’s Approach

The Court of Appeal’s judgement in MM (Uganda) & Anor v Secretary of State for the Home Department [2016] EWCA Civ 450  was  published on 7 June 2016.

The Issue:

As identified by the Court, the principal focus of the two appeals before them ( MM and KO)  was in relation to  the meaning of the term “unduly harsh” in paragraph 399 of the Immigration Rules and section 117C(5) of the Nationality, Immigration and Asylum Act 2002. The  Court acknowledged  that  there  are conflicting decisions of the Upper Tribunal on the meaning of the term “unduly harsh”.  It was further noted that a number of prospective appeals in the Court of Appeal  awaited  the Court’s  judgment in these two cases.


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