Indecipherable Upper Tribunal Headnotes and whether post-decision evidence is admissible in a section 94B Certification judicial review challenge
alicemuzira
Indecipherable headnotes simply thrust at the beginning of important Upper Tribunal decisions are distracting and off- putting.
A recent striking example is R (on the application of Ayache) v The Secretary of State for the Home Department (paragraph 353 and s94B relationship) [2017] UKUT 00122 (IAC). The Headnote is in two parts as follows:
Although paragraph 353 does not refer in terms to certification, a decision certified pursuant to s 94b is plainly a decision on a “human rights claim” albeit a claim regarding temporary removal as opposed to removal for a more lengthy period if a statutory appeal is unsuccessful. In deciding whether to certify under s94B the respondent, and the Tribunal, cannot act in a way which is incompatible with the applicant’s Convention rights. It must follow that further submissions made and considered in accordance with paragraph 353 Immigration Rules would fall within their ambit, including the appropriateness of certification. Certification is a response to the human rights claim, albeit focused upon temporary removal rather than the main claim.
Paragraph 353 Immigration Rules provides the appropriate remedy where further information and evidence is sought to be placed before the respondent, rather than such material being considered in judicial review proceedings.
The concern is with paragraph 1. The meaning of the paragraph is not plain at first glance. Without having regard to the entire judgment, seeking to make sense of that paragraph is quite a task. Struggling to grasp the summary of a case should not be what meets a reader.
PO (Nigeria) v Secretary of State for the Home Department [2011] EWCA Civ 132, makes clear the purpose of an Upper Tribunal Headnote:
“35. …The report of the decision of the AIT, with its country guidance citation and status, begins with a brief summary in headnote form of the guidance. This has become a common practice and is generally of great assistance, especially where the guidance itself is to be found in a short passage of a very long determination. The headnote is not the product of an external law reporter but is prepared by the AIT itself. Carnwath LJ will have more to say about this practice and procedure in view of his experience as Senior President of Tribunals…..”
“55.Finally I should comment briefly on the status of the “headnote”, which as the Vice-President has shown is inconsistent with the material parts of the determination. The headnote is not part of the determination as such. This is apparent from the fact that it precedes the formal “determination and reasons”. As I understand it, the headnote is normally added by the tribunal’s reporting committee when authorising the reporting of the decision, although it may in practice be drafted by one of the judges responsible for the decision. It is intended to provide a convenient shorthand summary of the effect of the decision, and is likely to be used as such in subsequent cases.
56.It is certainly useful to have a headnote of this kind. However, it is important that it should accurately reflect the relevant guidance as contained in the determination itself. The present case suggests that there may be a need to review the current practice. It may be that the problem would be reduced if, as I have already indicated, more care were taken to identify the “issue” to which the country guidance is intended to relate. It should then be possible for the panel judges themselves to conclude the determination with their own concise summary of the guidance on that issue. That might then provide the text which could be reproduced in the headnote, without the risk of the sense or emphasis being distorted in an attempted summary by the reporting committee”.
Undesirably, it seems that having full regard to the decision itself in Ayache leads to better comprehension of the effect of the case , as opposed to the initial summary headnote.
The issues in Ayache:
The Applicant had a lengthy history of offending in the UK and eventually became the subject of deportation proceedings.
On 10 February 2015, the Applicant was served with a decision to deport. His representations, on Article 8 and 3 grounds, on why he should not be deported were refused for reasons set out in a letter dated 11 September 2015. His Article 8 human rights claim was certified under s94B Nationality, Immigration and Asylum Act 2002 and his Article 3 claim was certified under s94 of the 2002 Act as clearly unfounded.
On 15 September 2015, the deportation order was signed and served on 18th September 2015 and the decision maintained in the Pre-Action protocol response letter. On 9 December 2015, the Applicant commenced judicial review proceedings challenging the Secretary of State’s decision to certify his Article 8 claim.
The issue considered by the Upper Tribunal was the lawfulness of the decision to certify under s94B. In considering that issue, three strands of argument also fell under consideration:
The Applicant relied upon post decision evidence and submitted that the Upper Tribunal was not, when considering the lawfulness of the certification of a claim under s94B, confined only to consideration of the material that was before the Secretary of State on the date of the decision but should consider all the material presently before the Tribunal;
Whether as put forward by the Secretary of State, the Applicant should present the new material in the form of further submissions for consideration in accordance with paragraph 353 Immigration Rules;
Whether temporary removal during the appeal period is in itself a disproportionate interference with protected Article 8 rights.
Whether post decision evidence is admissible in determining the lawfulness of a Section 94B certificate:
The factual conclusions drawn by the Secretary of State were as follows:
The Applicant’s daughter was cared for by her mother, Ms Digpal, during his imprisonment and continued to be cared for by her. It was however acknowledged that the Applicant’s absence would result in some negative emotional impact upon his daughter.
The Applicant was not married to Ms Digpal and they were not cohabiting prior to his imprisonment. He did not have a genuine and subsisting relationship with Ms Digpal although contact had been maintained.
There was no evidence that the Applicant’s deportation would result in him losing all contact with his daughter.
The Applicant did not have any contact with his son or his son’s mother.
The grounds relied upon by the Applicant relied on fresh material submitted to the Secretary of State in order to challenge those factual conclusions. It was however observed by the Upper Tribunal that the grounds did not challenge those conclusions made on the basis of the information and evidence that was before the Secretary of State on the date that she made her decision.
The Upper Tribunal considered as follows:
The Applicant did not refer to any authority under which evidence submitted after the decision which was the subject of challenge and not before the decision-maker, whether accompanying the judicial review application or thereafter, could or should be taken into account in the review of the decision the subject of challenge. It was plain that the jurisprudence does not permit of a ‘rolling review’ of evidence. The Upper Tribunal stated that the decision the subject of challenge is that which is challenged. In the absence of a secondary/subsidiary or supplemental decision which looks at any further evidence submitted whether direct to the Secretary of State or within judicial review proceedings which she chooses to consider, the Secretary of State cannot be criticised for failing to take account of information of which she was not aware at the date of the decision under challenge.
It may be that in some cases the Secretary of State is under a duty to investigate or enquire prior to making a decision, but that was not the position in this application. In this application, it was being submitted that the extensive evidence provided after the decision should be taken into account in determining the lawfulness of the certification. This was not accepted by the Upper Tribunal.
That post decision evidence is not at large in a judicial review of a decision to certify was made clear in the observations of Beatson LJ in R (FR & KL (Albania)) v SSHD [2016] EWCA Civ 605. At [56], discussing the decision of the House of Lords in ZT (Kosovo) v SSHD [2009] UKHL 6, he said :– “As to the approach of a court considering a judicial review of certification, it was stated that the court was not to substitute its own view as to whether the claims were “clearly unfounded” but should apply the normal principles of judicial review..”.
Beatson LJ explained at paragraph 49 that the reviewing court must ask itself essentially the questions which would have to be asked by a Tribunal considering an appeal. He referred with approval at [53] of R (FR & KL) (Albania) to the earlier explanation of Lord Phillips that:- “…the test for certifying a claim as “clearly unfounded” is an objective one. It depends not on the Home Secretary’s view but upon a criterion which a court can readily reapply once it has the materials which the Home Secretary had…” At [56]:- “…the court was not to substitute its own view as to whether the claims were “clearly unfounded” but should apply the normal principles of judicial review.” And at [[62]:- “…the jurisdiction remains a supervisory and reviewing one.”
As was made clear in ZT (Kosovo), the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. The way the Tribunal can consider whether the decision by the Secretary of State to certify the human rights claim was a rational one is by asking itself the same question. This does not mean that the Tribunal is substituting its own decision but that the Tribunal is asking itself the same question in order to decide whether the Secretary of State’s decision was rational. In doing so it exercises a supervisory jurisdiction which is why it only considers the materials that were available to the Secretary of State at the date of decision.
In the absence of any reasoned arguments supported by authority that the Tribunal should consider evidence that was not before the Secretary of State on the date she took her decision, the Upper Tribunal was not prepared to consider the evidence submitted either with the judicial review application or subsequently in determining the lawfulness of the s94B certificate.
Suitable forum for submission of the new material- Paragraph 353 of the Immigration Rules:
The Secretary of State submitted that given the Applicant sought to rely upon further evidence then the proper course would be to withdraw the judicial review application, present the new material in the form of further submissions and this would be considered in accordance with paragraph 353 Immigration Rules.
The Applicant however submitted that such a course of action was not one they were seeking- they were not seeking a review of the Article 8 decision but of the s94B certificate and that paragraph 353 does not provide for consideration of a 94B certificate.
The Upper Tribunal considered and concluded as follows as regards the relationship between paragraph 353 Immigration Rules and s94B Nationality, Immigration and Asylum Act 2002:
Although paragraph 353 does not refer in terms to certification, a s94B certificate is plainly a decision on a human rights claim albeit a claim regarding temporary removal as oppose to removal for a more lengthy period if a statutory appeal is unsuccessful. In deciding whether to certify under s94B the respondent, and the Tribunal, cannot act in a way which is incompatible with the applicant’s Convention rights. It must follow that further submissions made and considered in accordance with paragraph 353 Immigration Rules would fall within their ambit, including the appropriateness of certification. Certification is a response to the human rights claim, albeit focused upon temporary removal rather than the main claim( paragraph 18).
The duty imposed upon the Tribunal by s6 HRA is not infringed by it not reviewing post decision evidence which is said to do what the pre-decision evidence failed to achieve, namely establishing that removal would bring about an impermissible infringement of rights protected by Article 8. That is because the nature of the task being performed by the Tribunal is the exercise of a supervisory jurisdiction in respect of an historic decision. If there is more to be said by an Applicant, then the machinery of paragraph 353 provides for it to be considered by the Secretary of State. If the Applicant is correct that the post decision evidence demonstrates that temporary removal would infringe protected Article 8 rights, that infringement does not flow from the decision of the Tribunal that the decision under challenge in the proceedings before it was, at the time it was taken, a lawful one.
It therefore followed that paragraph 353 Immigration Rules provides the appropriate remedy where further information and evidence is sought to be placed before the Secretary of State rather than such material being considered in judicial review proceedings.
Whether temporary removal during the appeal period is in itself a disproportionate interference with protected article 8 rights:
It was accepted by the parties that the Secretary of State had not undertaken an assessment of the proportionality of temporary removal. On the face of it the making of the s94B certificate was legally flawed.
The Secretary of State drew attention to the fact that the certificate in Kiarie and Byndloss v SSHD [2015] EWCA Civ 1020 was upheld despite it being flawed for two legal errors: firstly that he had not been notified in advance that consideration was being given to the certification of his claim and secondly the decision focused erroneously on whether there was serious irreversible harm and failed to address whether removal would be in breach of Kiarie’s procedural or substantive rights under Article 8.
The Upper Tribunal considered that the focus of consideration of a challenge to a s94B certificate was on the Applicant’s protected rights but in the context, as per the Secretary of State’s Guidance, that his appeal will succeed to the extent that removal will be temporary. The Guidance referred to by the Upper Tribunal was that issued on 1 December 2016 which explains to decision makers how to consider certifying a refused human rights claim under s94B. The Guidance provided as follows:
“Summary of steps in the consideration process
You must decide whether to certify based on the individual circumstances of each case. The fact that it has been decided in an individual case that removal from the UK permanently or indefinitely would not breach human rights does not mean that the you can be satisfied that removal for a temporary period pending the outcome of any appeal would not cause serious irreversible harm or otherwise breach human rights. They are different considerations. When considering whether removal pending appeal would breach human rights, you should approach the question on the basis that the claimant’s appeal will succeed, such that the removal will be temporary . You should consider whether serious irreversible harm or other breach of human rights would be caused by that temporary removal from the UK.
…..
How to consider breach of human rights in the context of temporary removal
You can only certify under section 94B if satisfied that removal pending the outcome of any appeal would not be unlawful under section 6 of the Human Rights Act. This means that you need to consider whether requiring a claimant to appeal, or to continue an appeal, from outside the UK would breach human rights.
……
If the human rights claim is based on Article 8 of the ECHR, you must consider the effect of removal not only on the claimant liable to removal, but also on any other person whom the available evidence suggests will be affected (for example, immediate family members such as a partner and/or children).
…
Separation
Where the child will remain in the UK and be separated from the claimant, you must consider whether the temporary absence from the UK of the claimant liable to removal pending his or her appeal would be consistent with the child’s best interests, and if not, whether it would nonetheless be proportionate or whether it could create a real risk of serious irreversible harm to the child or otherwise breach the child’s human rights. A child’s temporary distress due to separation would not usually be enough by itself to demonstrate that the removal of the claimant would cause a child serious irreversible harm or otherwise breach their human rights. Many people are separated from their child for temporary periods (for example, for work reasons or while serving a prison sentence) without the child suffering serious irreversible harm”.
The question before the Upper Tribunal was whether, during that temporary period during which the Applicant is removed and pursuing his statutory appeal there will be an infringement of his Convention rights.
The Upper Tribunal’s considerations and conclusions were as follows:
The Upper Tribunal Judge made it clear that she would not trespass on the statutory appeal because that was not the basis of the application. It was considered that this was why addressing Article 8 generally was not the answer as to whether temporary removal would be disproportionate. Bearing in mind that this was a challenge to a s94B certificate and not to the Article 8 claim against deportation and that the arena for consideration of that claim is the statutory appeal, it was inappropriate for the Upper Tribunal in determining the lawfulness of the s94B certificate to consider and reach conclusions on the issues to be resolved in the statutory appeal, should the Applicant decide to pursue it.
The Upper Tribunal concluded that the underlying merits of the Applicant’s statutory appeal should not be taken into account in any assessment of the proportionality of the temporary removal and therefore adopted the approach that the Applicant was to be treated as a person whose appeal will succeed and his removal will be temporary.
The focus of consideration of a challenge to a s94B certificate was on the Applicant’s protected rights but in the context, as per the Guidance, that his appeal will succeed to the extent that removal will be temporary. The Upper Tribunal was concerned with whether temporary removal during the appeal period is in itself a disproportionate interference with protected article 8 rights
As above, the Upper Tribunal did not take account of the subsequent evidence. The factual conclusions in the decision letter which were not challenged therefore formed the basis upon which the Upper Tribunal Judge considered for herself the proportionality of the making of the s94B certificate and thus whether the decision of the Secretary of State was rational.
The Upper Tribunal concluded that the Applicant was neither married to nor was he cohabiting with Ms Digpal prior to his imprisonment. Although they were in contact with each other they did not have a genuine and subsisting relationship. The Applicant had no contact with his son or his son’s mother. His daughter continued to be cared for by her mother, Ms Digpal. Although his absence from the UK would result in some “negative emotional impact” there was, in fact, no evidence before the Secretary of State that his temporary removal from the UK would be any different or worse for her than when he was removed from society whilst he was in prison. There was no evidence before the Secretary of State which would enable a conclusion to be drawn that the Applicant’s temporary removal would be a disproportionate interference with either his or his daughter’s Article 8 rights.
It was considered that irrespective of whether it is characterised as private or family life or a combination of the two, it could not be concluded that the temporary removal of the Applicant from the UK during the currency of his appeal would be disproportionate and a breach of s6 Human Rights Act 1998. The Upper Tribunal Judge stated that she had considered herself whether there would be any infringement of protected rights of any person during the appeal period but concluded there would not.
It was observed that the Applicant did not assert there was evidence before the Secretary of State such as would make her conclusion irrational. The Upper Tribunal Judge herself considered the evidence that was before the Secretary of State and could find nothing in that evidence that could rationally suggest that either the Applicant or his daughter would be at real risk of serious irreversible harm or that there were any other reasons why the Secretary of State should not exercise her discretion to certify the claim under s94B.
The Upper Tribunal’s conclusions were that the Applicant ought to have made further submissions for consideration in accordance with paragraph 353 Immigration Rules but in any event, although the Secretary of State failed to approach the question of certification under s94B in accordance with the approach laid down in Kiarie and Byndloss, the evidence before the Secretary of State at the date of the decision led rationally to the findings of fact made by her.
Of those findings of fact, considered in the context of the proportionality of temporary removal, (absent those relevant to the applicant’s criminality and the consideration of the great public interest in his deportation), the Upper Tribunal concluded that it was plain that, had the Secretary of State taken a decision whether temporary removal would breach Section 6, she would have reached the rational conclusion that it would not.
