Upper Tribunal (Immigration and asylum chamber), 2023-06-14, [2023] UKUT 00164 (IAC) (TC (PS compliance, “issues-based” reasoning))
| Judge | THE HON. MR JUSTICE DOVE, UTIAC PRESIDENT, JUDGE MELANIE PLIMMER, FTTIAC PRESIDENT |
| Status | Reported |
| Date | 14 June 2023 |
| Published date | 19 July 2023 |
| Hearing Date | 26 May 2023 |
| Appeal Number | [2023] UKUT 00164 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | PS compliance, “issues-based” reasoning |
UT Neutral Citation Number: [2023] UKUT 00164 (IAC)
TC (PS compliance - “issues-based” reasoning) Zimbabwe
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Heard at Field House
THE IMMIGRATION ACTS
Heard on 26 May 2023
Promulgated on 14 June 2023
Before
THE HON. MR JUSTICE DOVE, UTIAC PRESIDENT
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
JUDGE MELANIE PLIMMER, FTTIAC PRESIDENT
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
TC
(ANONYMITY ORDER MADE)
Respondent
Representation:
For the Appellant: Ms Ahmed, Senior Home Office Presenting Officer
For the Respondent: Mr Pipe, Counsel
Order Regarding Anonymity: Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and members of his immediate family are granted anonymity.
No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant and his family members. Failure to comply with this order could amount to a contempt of court.
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Practice Statement No 1 of 2022 (‘the PS’) emphasises the requirement on the part of both parties in the FTT to identify the issues in dispute and to focus on addressing the evidence and law relevant to those issues in a particularised yet concise manner. This is consistent with one of the main objectives of reform and a modern application of the overriding objective pursuant to rule 2 of the Tribunal Procedure (FTT)(Immigration and Asylum Chamber) Rules 2014. It ensures that there is an efficient and effective hearing, proportionate to the real issues in dispute.
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A PS-compliant and focussed appeal skeleton argument (‘ASA’) often leads to a more focussed review, and in turn to a focussed and structured FTT decision on the issues in dispute. Reviews are pivotal to reform in the FTT. The PS makes it clear that they must be meaningful and pro-forma or standardised responses will be rejected. They provide the respondent with an important opportunity to review the relevant up to date evidence associated with the principal important controversial issues. It is to be expected that the FTT will be astute to ensure that the parties comply with the mandatory requirements of the PS, including the substantive contents of ASAs and reviews.
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The identification of ‘the principal important controversial issues’ will lead to the kind of focussed and effective FTT decision required, addressing those matters, and only those matters, which need to be decided and concentrating on the material bearing upon those issues. The procedural architecture in the FTT, including the PS under the reformed process, is specifically designed to enable these principal important controversial issues to be identified and for the parties’ preparation, as well as the hearing to focus upon them.
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FTT decisions should begin by setting out the issues in dispute. This is clearly the proper approach to appeals under the online reform procedure where at each major stage there is a requirement to condense the parties’ positions in a clear, coherent and concise ‘issues-based’ manner.
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The need for procedural rigour at every stage of the proceedings applies with equal force when permission to appeal to the UT is sought and in the UT, including a focus on the principal important controversial issues in the appeal and compliance with directions. The requisite clear, coherent and concise ‘issues-based’ approach continues when a judge considers whether to grant permission to appeal. This means that the judge should consider whether a point relied upon within the grounds of appeal was raised for consideration as an issue in the appeal.
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The reasons for the permission to appeal decision need to focus upon, in a laser-like fashion, those grounds which are arguable and those which are not. To secure procedural rigour in the UT and the efficient and effective use of Tribunal and party time in resolving the issues that are raised, it is necessary for the grant of permission to clearly set the agenda for the litigation for the future.
DECISION AND REASONS
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The SSHD has appealed against a decision of the First-tier Tribunal (‘FTT’) dated 5 December 2022, allowing TC’s appeal on all grounds. In this decision we refer to the parties as they were before the FTT, i.e., TC as the appellant and the SSHD as the respondent.
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We have maintained the anonymity order granted by the FTT because the appellant continues to rely upon his international protection claim. The importance of facilitating the discharge of the obligations of the United Kingdom (‘UK’) under the Refugee Convention outweighs the principle of open justice.
Background
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The appellant is a national of Zimbabwe, who was born in 1990. He came to the UK in 2014, when he was 14, with indefinite leave to enter on the basis that his mother had been recognised as a refugee. The appellant was granted refugee status ‘in line’ with his mother.
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The appellant commenced a relationship with his current partner in March 2018. They have a 2-year-old son, who was born in February 2021.
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On 25 May 2018 the appellant was convicted of kidnapping and actual bodily harm. He received concurrent sentences of imprisonment of 42 months and 18 months respectively. Prior to this, he received three cautions between 2008 and 2017. In addition, on 23 February 2017 he was convicted of dangerous driving and on 5 May 2017 he was convicted of possession of a Class B drug and sentenced to six months imprisonment. Following this offence, the respondent wrote to the appellant on 17 May 2017 warning him that if he continued to offend, he may be liable to deportation.
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The appellant was served with a decision to deport him dated 14 June 2018 and a letter dated 11 December 2018 informing him of the respondent’s intention to exclude him from the Refugee Convention protection on the basis of his criminal offending pursuant to s.72 of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’). He was also issued an intention to cease his refugee status on 15 February 2019. In written representations the appellant outlined why he was not a danger to the community and why he continued to be entitled to refugee status. The UNHCR also explained why his refugee status should not cease in a letter dated 22 March 2019.
Refusal decision
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In a decision dated 1 July 2022 (‘the refusal decision’), the respondent inter alia:
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certified that the s.72 presumption applies because the appellant was convicted of a particular serious crime (having been sentenced to a period of imprisonment of two years) and had not rebutted the presumption that he constitutes a danger to the community;
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revoked the appellant’s refugee status under para 339A(v) of the Immigration Rules and Article 1C(5) of the Refugee Convention on the basis that he was no longer dependent upon his mother and the circumstances in Zimbabwe for a person like him (who did not have a significant MDC profile and came from an urban area) had fundamentally and durably changed, such that the circumstances in connection with which he had been recognised as a refugee ceased to exist;
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concluded that the appellant’s medical condition did not meet the severity threshold to engage Article 3, ECHR and that he has sufficient links and access to support in Zimbabwe to obviate any contravention of Article 3;
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concluded that the appellant did not meet the requirements of para 399A of the Immigration Rules on the basis that he was not socially and culturally integrated in the UK and there would not be very significant obstacles to his integration there;
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concluded that there would be no breach of Article 8, ECHR on the basis of the appellant’s relationship with: a) his partner, because they were not in a genuine and subsisting relationship and in any event she could reasonably move to Zimbabwe to live with him, and; b) his son, because it was believed at the time that the appellant did not claim to have a family life with children;
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concluded that the appellant was unable to demonstrate evidence of a very strong Article 8 claim over and above the exceptions to outweigh the very significant public interest in deportation.
Appeal skeleton argument
The appellant has been represented by solicitors and Mr Pipe of Counsel throughout these proceedings. In compliance with directions, his solicitors provided an appeal skeleton argument (‘ASA’) dated 9 September 2022, prepared by Mr Pipe. The ASA complies with the requirements of the Practice Statement No 1 of 2022 (‘the PS’) in that it contain three sections: (i) a brief summary of the factual case; (ii) a schedule of issues; (iii) brief submissions on those issues which state why the appellant disagrees with the respondent’s decision with sufficient detail to enable the reasons for the challenge to be understood [A.4 and A.5]. The ASA also complies with the requirements of [A.6] as it: is concise; is set out in numbered paragraphs; engages...
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