Lata (FtT: Principal Controversial Issues)

The Claimant, a citizen of India, entered the United Kingdom with her children as a visitor in December 2011. In 2015, the Secretary of State for the Home Department refused the Claimant's asylum application. The First-tier Tribunal (‘FtT’) dismissed her appeal against that decision in February 2016. At the time of the hearing, the Claimant's elder son was an adult, and her younger son was aged 16. The FtT concluded that it was in the best interests of the younger son that he be brought up by, and reside with, his mother until he reached adulthood. The elder son was removed to India but subsequently returned to the United Kingdom where he lawfully resided with his wife. The younger son's asylum claim was refused in 2018.

In January 2020, the Claimant submitted further representations, asserting that she could not return to India consequent to her conversion to Christianity. In June 2021 the Secretary of State accepted that the further submissions constituted a fresh claim but refused to recognise the Claimant as a refugee and grant her leave to remain. The Claimant appealed to the FtT. The hearing took place in April 2022. The Claimant's elder son and his wife gave evidence. The focus of the Secretary of State's submissions was the genuineness of the Claimant's conversion to Christianity and, alternatively, that there was no risk to her if she relocated to Goa, which had a large Christian population. The elder son and his wife were cross—examined, but not as to their willingness and ability to relocate to India with the Claimant. In closing submissions, the Secretary of State made no reference to either son being able to relocate to India with their mother. The FtT allowed the appeal in May 2022, finding that the Claimant was a genuine convert to Christianity and would face persecution from non-state agents in India. Moreover, there was no internal relocation alternative available in Goa as the Claimant would be lost in an unfamiliar area of India and would not enjoy access to the support that she required.

The Secretary of State appealed to the Upper Tribunal (‘UT’), submitting that the FtT had materially erred in law by failing to consider whether one or both of the Claimant's sons could accompany her to India. Relying on the guidelines set out in Devaseelan (Second Appeals — ECHR — Extra-Territorial Effect) Sri Lanka*[2002] UKIAT 00702, the Secretary of State's position before the UT was that the starting point for the FtT should properly have been that the younger son, now an adult, could return to India with his mother in accordance with the finding of the FtT in February 2016.

Held, dismissing the appeal:

(1) The parties were under a duty to provide the FtT with relevant information as to the circumstances of the case, and that necessitated constructive engagement with the FtT to permit it to exercise its role lawfully and properly. The parties were therefore required to engage in the process of defining and narrowing the issues in dispute, being mindful of their obligations to the FtT. Upon the parties engaging in filing and serving a focused Appeal Skeleton Argument and review, a judge sitting in the FtT could properly expect clarity as to the remaining issues between the parties by the date of the substantive hearing. The reformed appeal procedures were specifically designed to ensure that the parties identified the issues, and they were comprehensively addressed before the FtT, not that proceedings before the Tribunal were some form of rolling reconsideration by either party of its position. It was a misconception that it was sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that might favourably arise, even if not expressly relied upon. The reformed appeal procedures that now operated in the FtT had been established to ensure that a judge was not required to trawl though the papers to identify what issues were to be addressed. The task of a judge was to deal with the issues that the parties had identified (paras 27 – 31).

(2) Whilst the Devaseelan guidelines established the starting point in certain appeals, they did not require a judge to consider all issues that previously arose and to decide their relevance to the appeal before him or her. A duty fell upon the parties to identify their respective cases. Part of that process, in cases where there had been prior decisions, would be, where relevant, for the parties to identify those aspects of earlier decisions which were the starting point for the current appeal and why. The application of anxious scrutiny was not an excuse for the failure of a party to identify those issues which were the principal controversial issues in the case. Unless a point was one which was Robinson obvious,' a judge's decision could not be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. A party that failed to identify an issue before the FtT was unlikely to have a good ground of appeal before the UT (paras 32 – 34).

(3) The Secretary of State's submission that one or both of the Claimant's sons could accompany her to India was not expressly advanced at the hearing before the FtT. The elder son and his wife did not address their returning to India with the Claimant in their witness statements and the Secretary of State did not raise it on cross examination. The only express reference to the sons was their ability to keep in touch with their mother from the United Kingdom and to visit her in India. Moreover, the Secretary of State's decision letter did not consider internal relocation and consequently no express consideration was given to whether the sons could relocate to Goa with their mother. The Secretary of State's reliance before the UT upon an earlier judicial finding that it would be in the interests of the Claimant's younger son, whilst a minor, to return to live with his mother in India, was not part of her case before the FtT. As confirmed in AZ (error of law: jurisdiction; PTA practice) Iran