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.
“Since that decision was handed down, the House of Lords in AH (Sudan) [2007] UKHL 49 has stressed that appellate courts should not pick over AIT decisions in a microscopic search for error, and should be prepared to give immigration judges credit for knowing their job even if their written determinations are imperfectly expressed …”, Entry Clearance Officer, Mumbai v NH (India) [2007] EWCA Civ 1330, paragraph 28.
One or two decisions from the FTT have just filtered through, granting permission to the Home Office and in one of the appeals, on grounds which were never raised within the refusal decision or by the Presenting Officer at the appeal hearing. There is of course the, “ Robinson obvious” point and am no Judge, however there is sometimes a glaring difference between raising mere disagreements clearly clothed as an argument of point of law and some arguable error point of law issue.
The Upper Tribunal Guidance Note 2011 No 1: Permission to appeal to UTIAC (amended September 2013 & July 2014), provides, inter alia, “…….. This guidance note is drafted to assist those considering applications for permission to appeal (PTAs) to the Upper Tribunal (Immigration and Asylum Chamber) (UTIAC), and to address commonly occurring problems. It is not a source of law nor does it aspire to be an authoritative statement of law, but is intended to promote consistent and high standards in making such decisions. The guidance covers both applications for PTA to the UT made to the FtT (“first applications”) and applications for PTA made to the UT (“second applications”)”
Yes, upon the above reading, the Guidance is just that, ie simply guidance, but if the Guidance is simply a document to glance at then move on, then why have it in the first place? If the intention is to promote consistency then why is the opposite risking becoming the norm in practice? Caselaw itself ie Nixon(permission to appeal), referred to below, states that UTIAC Guidance Note 2011 No 1 must be considered.
Clients need to be given the full picture when their appeals are allowed, not to unsettle them but to brace and prepare them for some fight, just in case, despite all efforts, an appeal that has been allowed now may end up being overturned months later.
Having regard to current Home Office practice in response to allowed appeals, there is a need to inform clients of the following:
- as an obvious starter, that their appeal has been allowed and the basis of the FTT Judge’s decision, and;
- that the home office have a right to apply for permission to appeal within the requisite time period, and
- that the home office are indeed appealing to the First Tier Tribunal in practice in all types of appeals, and;
- that on that basis, the home office might appeal in the client’s particular case, and;
- if so, to be prepared that an FTT Judge may likely grant permission to appeal to the home office.
Although there might be some areas within a FTT Judge’s decision where a Judge may have seemingly left their decision “ open” to appeal, in the majority of cases, it is the case that until the actual decision on permission from the FTT is forthcoming, weeks or months later, the client will not know why the Home Office have lodged a permission application. A great deal of uncertainty and anxiety is being created in practice with the home office increasingly proceeding to appeal the majority of allowed Tribunal decisions they lay sight upon.
Some Limits on Grant of Permission -The Guidance:
Additionally, on the face of it, some grants of permission to appeal given to the Home Office appear to fly in the face of the Upper Tribunal Guidance itself which provides:
“There are obvious limits to the circumstances when PTA should be granted:-
(a) A complaint with an assessment of facts that it was legitimate for the FtT Judge to make (even applying the reasonable degree of likelihood approach applicable to material aspects of protection claims) cannot normally be characterised as a matter of law (but see E & R [2004] EWCA Civ 49).
(b) Whilst disregard or misstatement of evidence that was placed before the FtT may amount to an error of law, or a failure to act fairly, the submission of further evidence following the hearing to contradict a finding (even if it would have been admissible in the original proceedings) cannot usually be said to be an error of law (see CA [2004] EWCA Civ 1165), unless the evidence is submitted to demonstrate unfairness or the decision is based on an entirely false factual hypothesis (see E & R [2004] EWCA Civ 49) or concerns questions of jurisdictional fact.
(c) An error of law on a topic that is completely irrelevant to the substance of the decision in hand is unlikely to justify the grant of permission, unless the point itself is of some general importance in the context of immigration and asylum appeals and deserves further consideration on that basis alone. It is considered that a grant of permission on this basis is more appropriately made by the UT (i.e. on a “second application”).
(d) A point of law that is not arguable whether because the statute is clear, the contention extravagant and unsustainable or there is stable, binding precedent of the higher courts, is unlikely to justify the grant of permission. However, if there is a case for the UT/higher courts to reconsider the point in issue, permission should be granted as a refusal of permission does not give rise to a right of appeal to the Court of Appeal. It will be rare for a judge to decide to grant PTA because he or she considers a binding precedent may be reviewed by a superior court with power to do so. But this may be appropriate in circumstances where, if the matter were before the High Court, the terms of s.12 of the Administration of Justice Act 1969 were engaged and the question of permission to appeal could be leap-frogged to the Supreme Court6. As with (c) above, the UT, rather than the FtT, will be best placed to take a view on a matter of this kind.
(e) Grounds alleging that the FtT erred in failing to adjourn will need to be considered in the context of FtT Rules, r.21(2) and (3) and the overriding objective in rule 4”.
The Upper Tribunal Guidance, also states:
“The consideration of an application for permission to appeal is a judicial decision for the individual judge performing it. The guidance issued to the judiciary does not modify or replace the legal obligations of a judge considering such a matter and it is not considered that they are required to take this guidance into account when making decisions”.
Not needing to be reminded however that Nixon states the Guidance must be considered, if there is indeed no obligation for it to be taken into account, how about FTT Judges routinely considering and then setting out some relevant caselaw within the resulting decision itself indicating whether or not to grant permission? Currently some decisions on permission from the FTT amount to half a page, a page or one and half pages.
Referring to readily sourced caselaw on the relevant point(s) raised in a permission application surely would outwardly appear to contribute to an assurance of considered consistency in decision making at a crucial point in time when error of law considerations issues themselves require engagement with the law- as opposed to a decision on permission which at times may not be apparent on its face as regards what law was taken into account.
Some Limits on Grant of Permission- Case law:
Leaving aside for a moment Tribunal Guidance, surely in most of the permission applications being lodged by the Home office where an appellant’s appeal has been allowed, the following caselaw most likely would speak against such applications and therefore indicate that most of them should be refused permission to appeal by FTT Judges:
Dasgupta (error of law – proportionality – correct approach) [2016] UKUT 00028 (IAC):
“17.Alternatively, bearing in mind that this is an error of law appeal and not a challenge on the merits, we apply the Edwards v Bairstow [1956] AC 14 prism. It is timely to recall these principles. There, in an error of law appeal, the House of Lords applied the standard of “the true and only reasonable conclusion” open to the Commissioners [at p10] and, notably, in doing so, employed the language of “perversity” [at p 6]. They defined the latter as a case in which –
“….. the facts found are such that no person acting judicially and properly instructed as to the relevant law could come to the determination under appeal.”
[per Lord Radcliffe at p 10]
In the language of Viscount Simonds [at p 6]:
“For it is universally conceded that, although it is a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think, fairly summarised by saying that the court should take that course if it appears that the commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained.”
The enduring application and pedigree of the Edwards v Bairstow principles is not, so far as we are aware, in question.
22.The Judge found, in terms, that the best interests of the two grandchildren would be promoted by the advent of the Appellant to live with their family and the continued presence of the mother in the family unit. We consider these findings to be unimpeachable. It is clear that the Judge committed no error of law in his approach to the best interests of the grandchildren. In substance, he viewed this as a primary consideration. This consideration is to be evaluated in tandem with the Judge’s other findings and the weight given by him to the cultural issue specifically raised. All of the ingredients in this equation must be considered as a whole. Mr Sheldon’s submission is that they are insufficient to justify a finding of exceptional circumstances. Viewed through the prism of conventional public law litigation, this has all the hallmarks of an irrationality challenge. As the Court of Appeal stated recently in Secretary of State for the Home Department v Boyd [2015] EWCA Civ 1190, at [16], the question for the appellate court or tribunal in such cases is whether the decision of the first instance tribunal on this issue is “one that was open to it”. Framed in somewhat more elaborate terms, the test is whether it is sustainable by reference to the principles in Edwards v Bairstow, rehearsed above.
23.The elevated hurdle which a challenge of this nature must overcome requires no elaboration. Mr Sheldon submitted that in finding exceptional circumstances the FtT identified two factors only, namely the grandchildren and the “cultural aspects”. This was the core of the Secretary of State’s appellate challenge. We consider this submission unsustainable for two reasons. First, the FtT highlighted these two factors “particularly, not exclusively. Second, the submission focuses on the concluding paragraph of the decision only, neglecting everything which precedes it. We consider that the Judge’s exceptional circumstances finding was based on the whole of the evidential picture. The question for us is whether, viewing the decision of the FtT as a whole, its finding of exceptional circumstances is sustainable in law. This, in the context of an error of law appeal, requires us to pose the question of whether the decision is compatible with the Edwards v Bairstow principles. We consider that this invites an affirmative answer. The Judge’s exceptional circumstances conclusion, uncontaminated by any legal misdirection or other error of law, lay within the range of outcomes reasonably available to him, was not contradicted by the evidence but, rather, had a sufficient evidential foundation and did not leave anything material out of account. Or, to borrow again the recent Court of Appeal phraseology (supra), we are satisfied that this conclusion was “open to” the FtT in the circumstances”.
And:
Greenwood (No. 2) (para 398 considered) [2015] UKUT 00629 (IAC) :
“18.The Upper Tribunal has the impression that the Secretary of State, as a matter of routine, applies for permission to appeal in every deportation appeal in which the appellant succeeds before the FtT. Furthermore, the grounds of appeal are frequently formulated in bland and formulaic terms. Thirdly, the grounds of appeal rarely, if ever, engage with the governing principles which we have rehearsed above. We would suggest that these observations be carefully considered by those who compile applications for permission to appeal and the Judges who decide them.
19.If there is indeed a practice of this kind it must be disapproved. To slavishly apply for permission to appeal to the Upper Tribunal in every deportation appeal resolved in favour of the appellant, if this be the practice, is not a proper or legitimate invocation of this Tribunal’s jurisdiction. Decisions on whether to apply for permission to appeal should be the product of conscientious and considered evaluation of the first instance judicial decision in every case. This, we consider, is what was contemplated by the legislature in making provision for this mechanism. Inundation of the Upper Tribunal with permission to appeal applications in every case belonging to a given category cannot be considered harmonious with the Parliamentary intention. Moreover, it is unfair to other tribunal users and undermines the important values of legal certainty and finality, which are two of the cornerstones of our legal system”.
And:
MR (permission to appeal: Tribunal’s approach) Brazil [2015] UKUT 29 (IAC:
“(1)A judge considering an application for permission to appeal to the Upper Tribunal must avoid granting permission on what, properly analysed, is no more than a simple quarrel with the First-tier Tribunal judge’s assessment of the evidence.
(2) When granting permission to appeal to the Upper Tribunal, it is unsatisfactory merely to state that the applicant’s grounds are arguable.
(3) The requirement, emphasised in Nixon (permission to appeal: grounds) [2014] UKUT 368 (IAC), to engage with each and every ground of application, need not involve anything of an unduly elaborate, burdensome or analytical nature. The reasons for granting or refusing permission to appeal, in whole or part, in any given case will almost invariably be capable of being expressed in a concise and focused manner”.
And:
VHR( unmeritous grounds) Jamaica 2014 UKUT 00367 IAC :
“Appeals should not be mounted on the basis of a litany of forensic criticisms of particular findings of the First Tier Tribunal, whilst ignoring the basic legal test which the appellant has to meet.
- In our judgement, the problem with Mr Chelvan’s approach and this appeal is that he has sought to comb through the judgment as if it was a statute and pick bits here and there out of context whilst ignoring the overall findings of the Determination and Reasons and the conclusions.
- We see these sorts of manufactured appeals quite often in the Upper Tribunal and deprecate them. It is not necessary for judges to record, analyse, rehearse and repeat the entire interstices of the evidence. The task of the First-tier Tribunal is to make reasoned findings on the key issues in the case and a clear decision”.
And:
Nixon(permission to appeal): grounds) 2014 UKUT 00368 :
“4. The requirement to secure permission to appeal establishes a pre-condition, or threshold, of real substance…
- 5. UTIAC Guidance Note 2011 No 1 must also be considered. This was introduced in July 2011 and amended in September 2013. It makes clear that the threshold test for granting permission to appeal against appealable decisions of the FtT is whether an arguable material error of law has been demonstrated. The possibility of granting permission in cases where an arguable, but evidently immaterial, error of law has been committed is recognised. The general rule enunciated in Anoliefo (permission to appeal) [2013] UKUT 00345 (IAC) should be noted. The President stated, at [16]:
“Where there is no reasonable prospect that any error of law alleged in the grounds of appeal could have made a difference to the outcome, permission to appeal should not normally be granted in the absence of some point of public importance that is otherwise in the public interest to determine”.
- I announced my decision, with reasons, at the conclusion of the hearing. In brief summary, Mr Smart, representing the Secretary of State, accepted, realistically and correctly, that this is an irrationality challenge. The proportions of the hurdle thereby erected require no elaboration. I am satisfied that the findings and conclusions of the Judge were comfortably open to her, having regard to the documentary evidence (which I have considered) and the oral evidence of those who testified (summarised in the determination). It was plainly open to the Judge to make the omnibus finding that the Appellant and his spouse were living together in a genuine and subsisting relationship. There is no demonstrable error on the face of the determination. Furthermore, sufficient findings are rehearsed, while others can be readily inferred. No piece of material evidence was overlooked by the Judge. Fundamentally, the weight which the Judge determined to accord to certain aspects of the evidence, while attaching correspondingly little or no weight to others, lay comfortably within the bounds of the standard of rationality.
- 14. In my view, permission to appeal should not have been granted to the Secretary of State in this case. The application for permission fell measurably short of the governing threshold and invited a swift and summary refusal”.
Of course, immigration lawyers themselves may at times also be seen to be forwarding unjustified complaints in permission applications, having regard to some issues raised below in R(Iran), a case which also clarifies useful enduring legal principles:
R(Iran) &Others V SSHD 2005 EWCA Civ 982, :
13.The second preliminary matter is this. Adjudicators were under an obligation to give reasons for their decisions (see reg 53 of the Immigration and Asylum Appeals (Procedure) Regulations 2003), so that a breach of that obligation may amount to an error of law. However, unjustified complaints by practitioners that are based on an alleged failure to give reasons, or adequate reasons, are seen far too often. The leading decisions of this court on this topic are now Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119 and English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409. We will adapt what was said in those two cases for the purposes of illustrating the relationship between an adjudicator and the IAT. In the former Griffiths LJ said at p 122:
“[An adjudicator] should give his reasons in sufficient detail to show the [IAT] the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. I cannot stress too strongly that there is no duty on [an adjudicator], in giving his reasons, to deal with every argument presented by [an advocate] in support of his case. It is sufficient if what he says shows the parties and, if need be, the [IAT], the basis on which he has acted, and if it be that the [adjudicator] has not dealt with some particular argument but it can be seen that there are grounds on which he would have been entitled to reject it, [the IAT] should assume that he acted on those grounds unless the appellant can point to convincing reasons leading to a contrary conclusion.”
14.In English Lord Phillips MR said at para 19:
“[I]f the appellate process is to work satisfactorily, the judgment must enable the [IAT] to understand why the [adjudicator] reached his decision. This does not mean that every factor which weighed with the [adjudicator] in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the [adjudicator]’s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the [adjudicator] to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon.”
15.It will be noticed that the Master of the Rolls used the words “vital” and “critical” as synonyms of the word “material” which we have used above. The whole of his judgment warrants attention, because it reveals the anxiety of an appellate court not to overturn a judgment at first instance unless it really cannot understand the original judge’s thought processes when he/she was making material findings.
16.What we have said does not absolve an adjudicator of his/her duty of devoting the intense scrutiny to the appellant’s case that is required of a decision of such importance. What we wish to make clear, however, is that the practice of bringing appeals because the adjudicator or immigration judge has not made reasoned findings on matters of peripheral importance must now come to an end”.
Conclusion
Having regard to the above Upper Tribunal caselaw, it cannot be the case these days that just because the Home office have taken the trouble to prepare and lodge a permission application, it should be taken much more seriously than a permission application lodged by an appellant, so as to routinely grant permission.
On 21 April 2016, the Government published a consultation paper proposing new fees for proceedings in the First-tier Tribunal (Immigration and Asylum Chamber) and Upper. Among other changes in fees, there is also a proposal to introduce a new fee of £455 for an application to the First-tier Tribunal for permission to appeal to the Upper Tribunal. If the First Tier Tribunal give the appearance of almost routinely granting permission applications made by the Home Office, then maybe the implementation of the new appeal fees will deter the very lodgment of such applications.