Category Archives: Appeals
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.
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.
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.
As An Immigration Lawyer, Surely I Too Can Approach Matters Like Muhammad Ali?
Muhammad Ali has died. Why should his death have such an effect upon me (and others)? Sometimes, it takes a great mans’ death to seek to know more about him.
It Is for The Party Asserting Bias Against an Immigration Judge To Make Good That Allegation
It appears that there is currently no Tribunal Rule nor other Practice Direction issued in the Upper Tribunal (Immigration and Asylum Chamber) dealing with conduct or alleged bias on the part of an Immigration Judge. The Court of Appeal in Singh v The Secretary of State for the Home Department [2016] EWCA Civ 4, although finding in that particular case that the allegation of bias against an Immigration Judge had not been made out, offered in a postscript, some suggestions stated to be neither prescriptive nor exhaustive on how to address the issues. The Court of Appeal’s view was that if this kind of appeal is to become more prevalent in this context then it would be much better for the Chamber Presidents, with their specialist expertise and their knowledge of the practicalities and in conjunction with the Senior President of Tribunals as appropriate, to decide whether or not to formulate any Practice Direction or Practice Statement or Guidance Note which may be considered necessary or desirable.
In Singh, an appeal reached the Court of Appeal with the argument being focused on an assertion of apparent bias. It was said that the First-tier Tribunal Judge made remarks at the outset of the appeal hearing before him which indicated that he had a closed mind and/or had prejudged the appeal. The argument was that the hearing was in consequence unfair.