AEB v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stuart-Smith,Nicola Davies LJ,Underhill LJ |
| Judgment Date | 18 November 2022 |
| Neutral Citation | [2022] EWCA Civ 1512 |
| Docket Number | Case No: CA-2021-000130 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1512
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lady Justice Nicola Davies
and
Lord Justice Stuart-Smith
Case No: CA-2021-000130
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IAC)
Upper Tribunal Judge Keith
HU/22145/2018
Royal Courts of Justice
Strand, London, WC2A 2LL
David Chirico and Eleri Griffiths (instructed by Duncan Lewis Solicitors) for the Appellant
Andrew Byass (instructed by Government Legal Department) for the Respondent
Hearing date: 2 November 2022
Approved Judgment
This judgment was handed down remotely at 10.00am on 18 November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The Appellant (“AEB”) appeals by way of a second appeal against the decision of the Upper Tribunal (“UT”) promulgated on 16 February 2021. By that decision, the UT dismissed his appeal against the decision of the Respondent Secretary of State, dated 17 October 2018, refusing his human rights claim and making a deportation order. Elisabeth Laing LJ gave permission to appeal on two grounds but refused permission on others on the basis that they did not satisfy the second appeal test set out in R (Cart) v Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663.
The Secretary of State made her decision because AEB had on 6 April 2017 been convicted on his own pleas of guilty of offences of dishonesty for which he had been sentenced to four years' imprisonment. That conviction meant that he faced automatic deportation pursuant to section 32 of the UK Borders Act 2007. AEB brought an Article 8 human rights claim, relying on his private and family life, which brought sections 117A–117D of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) into play. The First-tier Tribunal (“FtT”) dismissed AEB's appeal against the Secretary of State's October 2018 decision, but its decision was set aside by the UT without any preservation of findings of fact, on the grounds that there were errors of law including an error which deprived AEB of a fair hearing. The UT decided to remake the FtT's decision itself rather than remitting it to the FtT and later dismissed AEB's appeal. The present appeal is against that decision.
Ground 1 is that the UT misdirected itself as to the applicable principles when deciding to retain AEB's appeal rather than remitting it to the FtT. Ground 2 is that the UT erred in its approach to the question of whether there were “very compelling circumstances” within the meaning of section 117C(6) of the 2002 Act.
The basic legal framework
The powers of the UT on an appeal from the FtT derive from section 12 of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”). Section 12 gives the UT an unfettered discretion:
“12 Proceedings on appeal to Upper Tribunal
(1) Subsection (2) applies if the Upper Tribunal, …, finds that the making of the decision concerned involved the making of an error on a point of law.
(2) The Upper Tribunal—
(a) may (but need not) set aside the decision of the First-tier Tribunal, and
(b) if it does, must either—
(i) remit the case to the First-tier Tribunal with directions for its reconsideration, or
(ii) re-make the decision.
(3) …
(4) In acting under subsection (2)(b)(ii), the Upper Tribunal—
(a) may make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision, and
(b) may make such findings of fact as it considers appropriate.”
The UT's discretion pursuant to section 12 is the subject of Practice Directions and Practice Statements of the Immigration and Asylum Chambers of the FtT and the UT, which explain how the UT will normally exercise the discretion conferred by section 12.2: see JD (Congo) v SSHD [2012] EWCA Civ 327, [2012] 1 WLR 3273 at [35]. The basic distinction between the Practice Directions and the Practice Statements is that the Practice Directions tend to set out steps to be taken by the parties while the Practice Statements tend to refer to what the FtT and the UT themselves will do.
Part 3 of the current Practice Directions deals with the procedure to be followed on an appeal to the UT. Paragraph 3.1 provides:
Where permission to appeal to the Upper Tribunal has been granted, then, unless and to the extent that they are directed otherwise, for the purposes of preparing for a hearing in the Upper Tribunal the parties should assume that:
(a) the Upper Tribunal will decide whether the making of the decision of the First-tier Tribunal involved the making of an error on a point of law, such that the decision should be set aside under section 12(2)(a) of the 2007 Act;
(b) except as specified in Practice Statement 7.2 (disposal of appeals by Upper Tribunal), the Upper Tribunal will proceed to re-make the decision under section 12(2)(b)(ii), if satisfied that the original decision should be set aside; and
(c) in that event, the Upper Tribunal will consider whether to remake the decision by reference to the First-tier Tribunal's findings of fact and any new documentary evidence submitted under UT rule 15(2A) which it is reasonably practicable to adduce for consideration at that hearing.
Paragraph 7 of the current Practice Statements provides:
Disposal of appeals in Upper Tribunal
7.1 Where under section 12(1) of the 2007 Act (proceedings on appeal to the Upper Tribunal) the Upper Tribunal finds that the making of the decision concerned involved the making of an error on a point of law, the Upper Tribunal may set aside the decision and, if it does so, must either remit the case to the First-tier Tribunal under section 12(2)(b)(i) or proceed (in accordance with relevant Practice Directions) to re-make the decision under section 12(2)(b)(ii).
7.2 The Upper Tribunal is likely on each such occasion to proceed to re-make the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:-
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
7.3 Remaking rather than remitting will nevertheless constitute the normal approach to determining appeals where an error of law is found, even if some further fact finding is necessary.
Reading paragraph 3.1 of the Practice Directions and paragraph 7.2 of the Practice Statements together is not altogether straightforward. Paragraph 3.1(b) of the Practice Directions means that, except as provided by paragraph 7.2 of the Practice Statements, the parties to an appeal should assume that, if satisfied that the decision of the FtT should be set aside for an error of law, the UT will remake the decision. That assumption is also reflected in the first words of paragraph 7.2 of the Practice Statements, though it is expressed differently – the UT is “likely” to proceed to remake the decision unless an exception under paragraph 7.2 applies. Where an exception applies, the general assumption (or likelihood) that the UT will remake the decision is inapplicable. As a matter of language, where the exception applies, the UT is not likely to proceed to remake the decision.
Paragraph 7.3 of the Practice Statements provides a qualification of paragraph 7.2(b), tempering any suggestion that the UT should be quick to remit simply on the grounds that some further fact finding is required. The test under paragraph 7.2(b) is relatively stringent: the UT is required to have regard to the overriding objective before reaching a conclusion that the nature or extent of any necessary judicial fact finding is such that it is appropriate to remit the case to the FtT.
The status and effect of the Practice Statements
Submissions were made about the status (or lack of it) of the Practice Directions and Practice Statements in this case. In the light of the concessions made by the Respondent on Ground 1, to which I refer in more detail at [28] below, it is not necessary to determine their precise status in order to decide this appeal. I therefore outline the position relatively briefly.
The 2007 Act makes provision for the making of Practice Directions. Section 23(1) empowers the Senior President of Tribunals (“the SPT”) to give directions as to the practice and procedure of the FtT and the UT. The SPT's power is subject to section 23(4), which provides that such directions may not be given without the approval of the Lord Chancellor. However, that requirement is itself subject to qualification by section 24(6), which relevantly provides that section 23(4) does not apply to “directions” to the extent that they consist of guidance on the making of decisions by members of the FtT or UT. In summary, the power of the SPT to give Practice Directions is conferred by statute; and the effect of section 23(4) where it applies is that Practice Directions are given with the direct authority of the SPT and the Lord Chancellor.
Practice Statements for the FtT and UT are not mandated or given particular status by statute, rule or regulation. They are issued by or on behalf of the SPT. Before us, the authority to issue Practice Statements was identified as arising under powers that are inherent in the SPT by virtue of the holder of that office presiding over the UT and the FtT. This relies upon section 3(4) of the 2007 Act, which states that “the [SPT] is to preside over both of...
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