“The UT’s characterisation of the appeal was related to some trenchant observations which it made about what it perceived to be the Secretary of State’s practice of appealing routinely in any case where the FTT allowed an appeal against a deportation order, without any real attempt to identify an error of law as opposed to simply disputing the tribunal’s factual assessment. We are not in a position to comment either way about those observations, beyond saying that we hope that that is not the Secretary of State’s practice now, if it ever was”, so said Lord Justice Underhill in the Court of Appeal recently in Secretary of State for the Home Department v JG (Jamaica) [2019] EWCA Civ 982 (12 June 2019).

The Court of Appeal was reticent in JG to calling out the Secretary of State on this practice. Not so in UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095 (26 June 2019). Having clearly lost patience with the tit-for-tat culture of pursuing endless litigation in immigration appeals, Lord Justice Coulson took a swipe at both the Secretary of State and claimants generally, deprecating the entrenched practice of refusing to accept the finality of decisions.

As it  subsequently emerged in UT:

• the Secretary of State should never have applied for permission to appeal following the FTT Judge’s decision allowing UT’s Article 8 appeal.

• the Upper Tribunal Judge in turn should not have tinkered with the FTT Judge’s decision nor set it aside.

In effect, the Secretary of State should have been gracious in defeat with the consequence that UT should have been allowed entry into the UK to enjoy his family life with his wife and children.

Summary Background

In short, UT:

• a Sri Lankan national with lengthy residence in the UK,

• having been granted indefinite leave to remain in the UK in 2008,

• feeling compelled in 2012 to visit his ill father in Sri Lanka,

• not having a Sri Lankan passport, obtained an emergency travel document from his Embassy but produced a false birth certificate for this purpose,

• using the emergency travel document in Sri Lanka, he applied for entry clearance to the United Kingdom as a returning resident,

• received a decision dated 19 December 2012 refusing his application on the ground that his birth certificate had been found to be false. The application was therefore refused principally under paragraph 320(7A) of the Immigration Rules,

• has remained in Sri Lanka since 2012,

• however appealed the refusal to grant him entry clearance.

Origination of the problem – the Sectary of State’s appeal

The First Tier Tribunal Judge by decision issued on 28 March 2014 dismissed the Appellant’s appeal against the decision of the Entry Clearance Officer (ECO) under paragraph 320(7A), but allowed his appeal under Article 8 ECHR.

Not to be outdone, the Secretary of State appealed to the Upper Tribunal against the decision under Article 8. The Upper Tribunal Judge found that there were errors of law in the FTT decision under Article 8. He therefore set it aside and directed that it be remade in the Upper Tribunal. By a further decision issued on 26 August 2015, the Upper Tribunal set aside the FTT Judge’s decision on Article 8 and substituted a decision that UT’s Article 8 appeal be dismissed.

UT appealed to the Court of Appeal, where permission was granted on limited grounds.

The competing arguments in the Court of Appeal

The following was argued on behalf of UT:

• that there was no error of law in the FTT Judge ‘s decision.

• The FTT Judge had not lost sight of the findings on paragraph 320(7A) or the public interest when conducting the balancing exercise, as she had referred to the tension between those findings and the Article 8 claim.

• The Judge was acutely aware of the circumstances relating to the use of the false birth certificate, having devoted a large part of her written decision to making findings on this very topic, and had mentioned them at the outset of her consideration of Article 8. Accordingly, she must have had them in mind when performing the balancing exercise.

• In relation to justification for considering the application of Article 8 outside the rules, the judge had answered it in favour of UT by making the decision which she made.

• On the question of the reasonableness of UT’s wife and minor children being required to return to Sri Lanka, the judge had referred to the difficulties involved for the family in re-establishing itself in Sri Lanka; by her decision, must have concluded that it would be unreasonable to expect them to do so.

On behalf of the Secretary of State it was submitted:

• that the remade decision of the Upper Tribunal was to be preferred, because its reasoning was fuller.

• the decision of the FTT Judge had failed to engage with the totality of the evidence when addressing the question of whether it was reasonable for the family to return to Sri Lanka. The authorities showed that the consideration of Article 8 outside the rules needed to be holistic and universal. It was not enough to pick out a couple of factors which pointed in the appellant’s favour.

• the FTT Judge had approached the matter from an incorrect perspective. The effect of the decision of the ECO was not to remove the family from the UK, or to separate the family from their father. It was a matter of choice for the rest of the family whether they stayed in the UK or not

The nature of and approach to an appeal to the Upper Tribunal

The Court of Appeal observed the following as regard the nature of and approach to an appeal to the Upper Tribunal:

• The right of appeal to the Upper Tribunal is “on any point of law arising from a decision made by the [FTT] other than an excluded decision” – Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”), section 11(1) and (2).

• If the Upper Tribunal finds an error of law, it may set aside the decision of the FTT and remake the decision- section 12(1) and (2) of the 2007 Act.

• If there is no error of law in the FTT’s decision, the decision will stand.

• Although “error of law” is widely defined, it is not the case that the Upper Tribunal is entitled to remake the decision of the FTT simply because it does not agree with it, or because it thinks it can produce a better one. The reasons given for considering there to be an error of law really matter- as per Baroness Hale in AH (Sudan) v Secretary of State for the Home Department at [30]: “Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently.”

• The question raised by this appeal was whether the FTT Judge decision involved any error of law

• The core issue in the case was whether the decision to refuse UT entry clearance was a justified or a disproportionate interference with the right to respect for family life. The Court of Appeal observed that this was an issue which faces judges of the immigration tribunals on a daily basis, and the paradigm of one on which appellate courts should not “rush to find misdirections” in their decision- making.

• It was noted that in R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19, Lord Hope said (at paragraph 25): “It is well established, as an aspect of tribunal law and practice, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. The appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it.”

• In R v Immigration Appeal Tribunal, ex parte Khan [1983] QB 790 (per Lord Lane CJ at page 794) it was explained that the issues which the tribunal is deciding and the basis on which the tribunal reaches its decision may be set out directly or by inference. If a tribunal fails to do this then the decision may be quashed. He continued: “The reason is this. A party appearing before a Tribunal is entitled to know, either expressly stated by it or inferentially stated, what it is to which the Tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the Tribunal; in other cases it may not. Second, the Appellant is entitled to know the basis of fact on which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in others it may not.”

The Court of Appeal noted that in this case Section 117A of the 2002 Act required the decision maker to have regard to the factors identified in section 117B. Section 117 B (1), “The maintenance of effective immigration controls is in the public interest”, was of importance in the case, and was the principal factor placed in the balance against UT by the Secretary of State. In relation to Section 117B(6), the Court restated that what it is reasonable for a qualifying child to do does not involve a consideration of the public interest, but needs to be decided in the context of where the parents are expected to be. In the present case this reduced to a question of whether it was reasonable to expect the children to join their father in Sri Lanka: KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53.

It was also observed any specialist decision maker approaching the case would know that the best interests of the children were a distinct, primary consideration. What is in the best interests of the children is not dependent on the public interest but needs to be decided in the context of where the parents are expected to be: EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874.

What the First Tier Tribunal Judge did right- no error of law

The Court of Appeal observed the following as regards the FTT Judge’s decision:

• The FTT Judge had not lost sight of her finding that UT had knowingly used a false document to obtain his entry clearance, and the public interest, when conducting her proportionality assessment under Article 8.

• The judge spent the first part of her decision examining, in painstaking detail, the case under paragraph 320(7A) and reaching very clear conclusions on it.

• She reminded herself of the competing considerations of the findings she had made on paragraph 320(7A) as against the consideration of UT’s claim that to refuse him entry was an unjustified interference with the right to family life. She did so in order to remind herself that her finding on the use of a false document was a matter which fell to be placed in the balance as a factor weighing against UT, together with all the other considerations relevant to the proportionality assessment.

• She explained that maintenance of effective immigration control is a “countervailing factor” which must be placed in the balance, and may outweigh the considerations which favour the appellant.

• Whilst the FTT Judge’s ‘s reasoning was compressed, the Court did not find it contradictory, and it was noted that the Upper Tribunal Judge did not, in fact, himself identify any such contradiction.

• Although the FTT Judge ‘s reasoning was not as well-structured or expressed as it might be, if an error of law based on inadequate reasoning is to be identified, one must venture beyond general, literary criticism of this kind.

• Anyone reading the decision as a whole, however, would appreciate that the judge had concluded that the circumstances with which she was confronted in this case required her to conduct an Article 8 proportionality assessment.

• It was implicit in the Judge’s decision that she considered this a case in which it was necessary to conduct an Article 8 assessment independently of the Rules. It was for that purpose that she had explained how such assessments are to be carried out, referring to Razgar and Huang. When the Upper Tribunal came to remake the decision, it also readily concluded that this was a case where the circumstances were such that it would be appropriate to consider the application of Article 8 outside the rules.

• The FTT Judge referred to the difficulties which would be involved in moving the family to Sri Lanka, namely that the children have lived all their lives here, were settled in schools in this country, were British citizens and were at an age where it was questionable whether they could adjust to life in Sri Lanka at all. She also referred to the length of time that the parents had spent in the United Kingdom. The Judge reminded herself entirely correctly that UT’s use of deception to re-enter the UK was a problem which was not of their making. It was clear to a reader of the decision that the FTT Judge had concluded that it was not reasonable to expect UT’s wife and the children to give up their life in the UK and join their father in Sri Lanka.

• The reasons why the FTT Judge held that the refusal of entry clearance was a disproportionate interference with respect for family life were tolerably clear. The factors which were to be put in the balance on either side were all set out in her decision.

• The Court of Appeal noted that not every judge would have decided that the best interests of the children, the family’s ties to the UK, the difficulties of reintegration into Sri Lankan life and the shock to the children of having their education in this country interrupted at the particular stage they had reached were sufficient to outweigh the public interest in firm and consistent immigration control. That, however, was both the decision this judge reached and the reasons for it.

• There was no error of law revealed by reaching that conclusion, or by failing to give “reasons for reasons”.

• It was noted the Secretary of State argued that the FTT Judge had failed to engage with the totality of the evidence when addressing the question of whether it was reasonable for the family to return to Sri Lanka. The Court of Appeal did not accept this argument- it is not necessary for a judge to set out every item of evidence on which he or she relies: the Court saw no basis for supposing that the FTT Judge had not engaged properly with the relatively limited amount of evidence in this case.

• It was not a matter of choice that that UT’s wife and children decided to remain here. From the point of view of the two children, whose best interests lay in continuing their education in the UK and for whom the difficulties of adjusting to life in Sri Lanka were sufficient to make it unreasonable for them to follow their father there, this was indeed a separation case. It was no less so for their mother who was faced with the dilemma of staying with the children in the UK or uprooting the children and joining their father in Sri Lanka. The consequences of the decision appealed against need to be assessed in the real world, and not stripped of their context. The FTT Judge did not commit any error of law by approaching the issues in this way.

• The Upper Tribunal’s decision that there was an error of law in the FTT Judge ‘s decision was flawed. The Upper Tribunal should not have embarked on remaking the decision.

• The Court of Appeal allowed the appeal, set aside the decision of the Upper Tribunal, and reinstated the decision of the FTT Judge.

Fall of the guillotine

Whilst agreeing with Lord Justice Floyd’s judgement, Coulson LJ took the opportunity to emphasis the following:

“36.In my view, this case highlights two unsatisfactory practices or attitudes of the parties in the FTT and the UT which are frequently highlighted in cases before this court.

37.The first is the almost endless citation of authority by the parties’ representatives, which makes many judges so concerned to be seen to be applying all the relevant dicta that any application of those principles to the particular facts of the case is presented almost as an afterthought. Although here the FTT judge’s application of the principles to the facts was adequate, it could have been much clearer. I believe that it would have been, if the parties had relied on fewer authorities and provided more analysis of the balancing exercise on the facts that the judge was being asked to do.

38.The second problem is the erroneous belief that every decision, no matter its provenance, nature or form, is always capable of being appealed or at least reviewed, such that neither side ever regards any decision as final. It follows from the outcome of this appeal that the FTTJ’s decision in 2014 should have been accepted without further argument.

39.In my view, these twin factors serve only to increase the burden on already over-worked judges and diminish the quality and efficiency of justice, particularly in immigration and asylum work”.

Comment

If UT had not pursued an appeal to the Court of Appeal seeking reinstatement of the initial judge’s decision, he would likely not have received justice. He would have been lumbered with a negative Upper Tribunal decision in circumstances where permission to appeal should never have been granted to the Secretary of State – even where permission was to be granted, the First Tier Tribunal Judge’s decision should not have been set aside by the Upper Tribunal as it contained no error of law.

The criticisms in relation to accepting finality of decisions, whilst applicable to the generality of parties to litigation, having regard to the circumstances of this particular case, were surely triggered by the actions of the  Secretary of State.

Of note, the Court of Appeal itself dishes out, with dizzying effect, authority after authority, week after week in the area of immigration and asylum. So far for the month of June alone, six judgments have been published emanating from this Court.

Home Office Presenting Officers have long developed a practice of serving bundles of extracts of paragraphs from authorities relied upon. From these extracts, only one or two cases at most are relied upon in oral submissions. The authorities presented are usually not updated, with more recent caselaw being omitted. Added to all this are further authorities relied upon by the Appellant. It is doubtful there will be a reduction or any long lasting  reduction in the entrenched practice of  presentation of  sometimes voluminous authorities sought to be relied  upon as each such  party does so with a view to advancing a particular point (or points)………..also intended to pursue a further appeal if the case is wrongly  dismissed.  In such instances, it should however also be for the First Tier Tribunal Judge to take the bull by the horns and ask of the parties to explain during oral submissions the relevance of the principles arising from each authority served.