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

 

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“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.

I attended an appeal hearing on 3 June 2016 at IAC Taylor House.  The Judge  pointedly looked away from  me and  directed himself toward the Presenting Officer  and  enquired regarding the  current Home office policy in relation to  removals to Zimbabwe.  Simply put, the Presenting  Officer did not  know   the position and  replied unashamedly that she was yet to take instructions on the point.  But  as a representative   of the Home Office, in an appeal  where the Home Office sought to remove my   client to that country,  she should have known by the date of  the appeal hearing what the  exact position  was. Needless to say, uninvited,  I clarified the  issue.

Several things evidently went  wrong in the case of Koori & Ors v The Secretary of State for the Home Department [2016] EWCA Civ 552, and having regard to the Court of Appeal’s judgement,  one cannot help but  have a strong suspicion that when proceedings initially  commenced  in that Court, it may have been sought that some other  important  point of  principle would be forthcoming  in relation to families of  minor children with at least 7years residence in the UK and with perhaps some  elucidation regarding  the ambits of the accompanying  “reasonableness test” being  also set out.   What however  occurred  was that  the Court  spent some considerable time working  out what went wrong in the Tribunal  in relation not only to their grasp of the chronological  facts and of  the relevant Rules but also noted the shortcomings  of  both sides   representatives  involved  in the appeal in the Tribunal proceedings.

Leaving aside for now the actual  specifics factually  of the case  and  how it is the  Appellants in Koori,  could not have met the  requirements of the Paragraph 276ADE(iv) at the  date of the application,  what is  welcome is the Court  of Appeal’s clarified expectation  that  when Presenting  Officers appear before the Tribunal , as  representatives  of the Home Office, they  ought always to be expected to have a good grasp of the applicable current law  and refer it to the Tribunal since  it is,  “notoriously difficult for those practising in this field to keep up with the constant changes to the Immigration Rules”.

The background to Koori:

The five appellants, Indian nationals, consisted of the parents and  their three minor children. The father of the family, the first appellant, came to the UK on 4 April 2003 with a visa exemption to work at the Consulate General of India. His family, which at that time was his wife and two children, followed him to the UK on 22 October 2005, also with visa exemptions. He left his post in December of that year and thereafter remained in the UK without leave. A third child was born in the UK on 1 June 2007.

The family applied for leave to remain in the UK on 27 September 2012. The application did not suggest that the children satisfied the seven year rule, but said that they had lived in the UK “for almost seven years”. The Secretary of State refused to grant leave to remain on 27 September 2013.  The relevant provisions in issue, and in force at the date of the Secretary of State’s decision, was  paragraph 276ADE of the Immigration Rules. Prior to 13 December 2012, paragraph 276ADE(iv) provided only  that the  requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment). From  13 December 2012,  the phrase “and it would not be reasonable to require the applicant to leave the UK”, ie   “the reasonableness test”  became  part of the rule.

The refusal decision of 27 September 2013 was  not an appealable decision and  judicial review proceedings were instituted to challenge it. The pre-action letter  did not suggest that paragraph 276ADE was applicable. The  judicial  review  action was settled on the basis that the Secretary of State would make a fresh decision,

The Secretary of State made a fresh decision on 3 January 2014. She rejected their human rights claims and made an order for their removal. That was an appealable decision. The reconsideration decision dated 3 January 2014, stated, in the context of considering paragraph 276ADE, that the two older children had been present for seven years. The Secretary of  State  went on to find, however, that it was reasonable to expect them to leave the UK. What was  applied  was the later version of the paragraph 276ADE.

There was an appeal to the First Tier Tribunal (“FTT”) which was dismissed on 19 June 2014.  In the appeal to the FTT, the father, stated that he had lost contact with his wider family in India and his wife also claimed to have severed contact with her family. He claimed that he had no home, property or job in India and that his family was now settled in England. The children had adapted to British culture, had English friends and had settled happily in their schools. The FTT considered whether the appellants qualified for leave both first under the terms of paragraph 276ADE and article 8. The FTT Judge  considered that paragraph 276ADE was  not satisfied on age or length of stay grounds. For reasons of credibility, it was not accepted that the Appellants had no family ties to India. It was  accepted that the children had spent most (in one case, all) of their lives in the UK, however, they were not UK citizens and lived with their Indian national parents and must reasonably be taken to have cultural ties to India.

The FTT judge considered the article 8 claim and rejected it. She cited the case of Haleemudeen v Secretary of State for the Home Department [2014] EWCA Civ 558 to the effect that an article 8 claim outside the rules could only succeed if there were compelling circumstances. The judge considered that the family could return to India notwithstanding what she recognised would be the upheaval which would be caused to the children. She placed emphasis on the precarious nature of the parents’ immigration status in the UK. Overall she was not satisfied that the order to remove the family to India would infringe their article 8 rights.

Permission to appeal to the Upper Tribunal (“the UT”) was granted but the UT dismissed the appeal in a determination promulgated on 24 September 2014.

The Appellant’s case in the Court of Appeal:

It was  part of  the appellants case, that the Secretary of State had conceded that the seven year rule was satisfied. It was stated  that she must have known that strictly it had not been, but was prepared to act as though it had. This was a conscious executive decision, by which she was bound, to treat the seven year rule as satisfied. It is always open to the Secretary of State to allow someone to stay outside the rules and this included treating a conditional element of a rule as satisfied when in fact it was  not.

In relation to paragraph 276ADE, it was argued that the FTT had erred in applying the later version of the paragraph when the earlier version, without the reasonableness test, had been in force at the material time.

The appellants contended that the UT had wrongly concluded that the new version of paragraph 276ADE was applicable whereas it ought to have applied the old version which, because it did not include the reasonableness test, was much more favourable to the appellant.

It was argued that even on the premise that there has been no error which had in fact disadvantaged the appellants, the Court should allow the appeal and require the Secretary of State to decide the application on the assumption both that the children did satisfy the seven year rule and that the old version of paragraph 276ADE applied. It was  submitted that the Secretary of State had conceded that the seven year rule applied in two ways. There was a concession by the Secretary of State when she reached her own decision on 3 January 2014.  Furthermore, counsel for the Secretary of State must again be taken to have conceded the point, if indeed it had not already been conceded, because she failed to take it before the UT. Similarly, counsel had failed to draw the attention of the UT to HC 820 of the Immigration Rules  and ought not now to be allowed to invoke it on appeal. The Secretary of State should not be permitted to resile from the assumptions which were the basis on which the UT reached its decision.

What was noted by the Court of Appeal to have gone wrong in the Tribunal proceedings?

The Court of Appeal observed that for some reason neither the parties’ then legal representatives(nor Counsel before the Court of Appeal) nor the UT itself appeared to have noticed that the seven year rule was not satisfied, notwithstanding that the FTT had said so – albeit in somewhat cryptic terms – and that it was in any event obvious from the undisputed chronology.  All parties failed to notice that paragraph 276ADE could not apply, and that was so whichever version of the paragraph was in play because in both versions it is a condition for establishing the right to remain that the seven year rule is satisfied at the date of application.

It was considered by the Court that when determining which version of sub-paragraph (iv) was applicable, the UT erred in two ways. First, it was told that there were relevant transitional provisions contained in Statement of Changes in Immigration Rules (HC 760). Neither party provided this document to the court, but the UT considered those provisions and concluded that the original version should apply. Construing these transitional provisions, they were satisfied that the amendment to paragraph 276ADE(iv) should not apply to applications pending on 12 December 2012, as this one was. That is in the Court of Appeal’s view the correct interpretation of HC760 and no-one had suggested otherwise.

The Court of Appeal stated that what was unbeknown to the UT – and indeed to the parties until the appeal to the Court of Appeal – was that HC760 had itself been modified before it had even come into force by new transitional provisions contained in a new Statement of Changes in Immigration Rules (HC 820). That made it plain, and indeed it was common ground, that the new version of paragraph 276ADE was to apply to all applications decided after 13 December 2013, as this one was. This new Statement was therefore putting into reverse the previous policy, at least with respect to paragraph 276ADE. It may have been fortuitous but both the Secretary of State and the FTT had therefore applied the right version.

It was also noted that notwithstanding that the UT did not appreciate the true effect of the transitional provision in force, it also reached the conclusion that the later version was applicable, but by a totally different route.  It held that the relevant decision of the Secretary of State was a decision to remove the applicant from the UK and not a decision concerning the application for leave to remain. On that basis the relevant time for determining which body of rules were in force was the date of the removal decision and on any view the second version of paragraph 276ADE(iv) which contained the reasonableness test, was in force by then. It was on this basis that the UT held that the FTT judge had in fact applied the right version of the paragraph, albeit for the wrong reason.

The Court of Appeal’s considerations and conclusions:

  • In the Court’s judgment, the FTT Judge would have appreciated, although it would have been better had she spelt it out, that the question was not whether the children had been resident in the UK for seven years at the date of the decision, but whether they had been so resident at the date of the application. The judge would have been obliged to take this point, once aware of it, whether or not the representatives had drawn it to her attention. The Court did not accept that the fact that the judge then made observations which seemed to be directed to the reasonableness test undermined that analysis. That was consistent with a judge simply referring, albeit very briefly, to an additional reason why the claim should fail under sub-paragraph (iv). It followed that in the Court’s view the FTT reached what was unarguably the correct conclusion that paragraph 276ADE (iv) could not be relied upon by the children.
  • Both counsel for the Appellant and   for the Secretary of State conceded, that the distinction drawn by the UT between the removal decision and the decision to refuse leave to remain was not a legitimate one. They agreed that it was artificial to treat the removal decision as distinct from the rejection of the human rights claim because the two decisions were inextricably linked. It was only once the human rights’ claim had been rejected that removal could lawfully be undertaken.
  • The Court of Appeal did not accept that the Secretary of State had made a concession that the seven year condition was satisfied. The better view was that she simply failed to appreciate that the date for making the determination was the date of the application and not the date of the decision. The Court stated that it would accept that if there had been a considered and lawful decision to deem the seven year rule to be satisfied, the Secretary of State should not be allowed to resile from that decision. An administrative body cannot keep revisiting decisions which affect individual rights: there must be finality, at least unless there is a powerful public interest to the contrary. However where a decision has been made on a mistaken premise, the decision can be revisited so that the law is properly applied, unless it would be unfair to allow this such as where there has been reliance to the detriment of the individual.
  • The Court of Appeal did not accept that there was any concession to that effect by the Secretary of State’s representative before the UT. The Court stated that it was very surprising that neither the parties nor the court had appreciated that the seven year rule was not satisfied, particularly given what the FTT had said about this. But a failure by the representative to appreciate a matter in his client’s favour does not amount to a concession. That was equally true of the failure to appreciate that the relevant transitional provisions were HC 820.
  • The Court accepted that it was not unreasonable to expect the Secretary of State to ensure that the Tribunals are made acquainted with the relevant law in force bearing upon the issues in dispute. After all, she was, in general at least, in a much better position than the appellant to do so. But failure to draw attention to the proper law in force is not a concession that the law is other than it is. Moreover, it must be remembered that it was the appellant before the UT who were contending that the FTT had applied the wrong version of the rule. It was strictly for them to produce the legal material to make good their case and in that context they could not refer to HC 670 and knowingly fail to refer to HC820. Both parties were innocently misleading the court by failing to refer to the appropriate transitional provisions.
  • In the Court of Appeal’s judgment, the only question which arose now was whether they should allow the Secretary of State to remedy these mistakes on appeal. It was noted that this was  not a case where the fresh ground of appeal will lead to a remission and further fact finding by the lower tribunal. There was in the Court’s judgment no unfairness to the appellants; they were not disadvantaged by the mistakes being corrected. They would not have conducted their cases any differently nor had they acted in any other way to their detriment. The plain fact was that they could never have successfully invoked paragraph 276ADE. Paragraph 276ADE is designed to strike a balance between competing interests and to identify when the public interest in proper immigration control should give way to the demands of private and family life. The courts should not readily allow mistakes by the Secretary of State or her representatives to distort the proper application of the public interest as reflected in the immigration rules. The wider public interest is likely to weigh more heavily in public law cases than it does in private law disputes. In the Court’s view there would need to be some powerful countervailing interest, such as obvious unfairness to the applicant, if the court is to deny giving the Secretary of State the opportunity to correct the mistakes in issue here.

More criticisms from the Court of Appeal directed in particular towards Presenting Officers in general:

The Court of Appeal stated that the multiple errors on the part of both parties which made the case so complicated were  very regrettable.  Concern  in particular was expressed  about the failure of both parties’ representatives below (not Counsel before the Court of Appeal) to ensure that the Tribunals were aware of what transitional provisions were in force as regards the changes to the “seven-year rule”.    In particular, in the Upper Tribunal, although it was clear that there was an issue about the effect of HC 760 on pending applications, neither the Appellants’ former counsel nor the Senior Home Office Presenting Officer below brought a copy to the hearing, and the UT records that “both representatives agreed that we should examine the law for ourselves”.   The Court of Appeal considered that this was not good enough: tribunals are entitled to expect to be referred at the hearing to the relevant law and to hear submissions on it.  As it turned out, HC 760 had in fact been superseded in the relevant respect by HC 820, but the Tribunal was not told that even after the hearing: it reserved its decision, so there was the chance for the common error to be put right if the position had been checked.

The Court stated that although both representatives were at fault, the greater responsibility must lie on the Presenting Officer. The Court stated that it was notoriously difficult for those practising in this field to keep up with the constant changes to the Immigration Rules.  The one institution which ought always to be expected to have a good grasp of the applicable current law is the Home Office, as the author of the Rules, and the Presenting Officer is its representative.

This was only the most recent of several occasions on which the Court had become aware of problems caused by tribunals not being referred to the current versions of the Rules (or other recent developments in the law). The Court was reluctant to be critical of individual Presenting Officers. It was noted that the problem may well be that the Home Office’s procedures for disseminating “current awareness” are not good enough and the Court hoped some lessons could  be learnt from what went wrong in this case.

Conclusion:

Although the Court of Appeal  noted that greater responsibility  must lie upon the Presenting Officer in highlighting  and  evidencing changes in the law, in particular the Immigration Rules,  that does not obviate  the need for Appellants or their legal representatives  to  undertake,  as usual a thorough research of the law in relation to  the  appeal before  the  actual hearing.  After all,  subsequently   blaming the Home office where an appeal fails  because of their failures or apparent neglect in assisting the Tribunal Judge, does not   produce the  immediate result sought, ie  ultimate success in the appeal.

Gone however should be the days when   Presenting Officers  attend  Tribunal hearings  acknowledging  that the papers have   only just the previous  day been given to them  by their relevant department and  some  relevant papers are still not in sight.  Gone should be the days when some  Presenting  Officers can still attend a hearing and say  that the papers are  still in “transit” or  that   the Appellant’s  bundle has not been served upon them, when the Appellant’s legal representative  however has resourced   signed  confirmation of receipt of the bundle by the relevant Presenting Officer ‘s Unit, more than a week prior  to the hearing date.  Once gone, then there can be a measured assurance that the  relevant  law that I have endeavoured laboriously  to research  beforehand and include in the Appellant’s Bundle is not only being read by the appeal Judge  but also  the Presenting  Officer  in advance of  the hearing.

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