UK: Immigration Appeal Disposal: Should The Upper Tribunal Remake Or Remit?

The "disposal" of an appeal by the Upper Tribunal, namely whether the appeal should have been remitted to the First-tier Tribunal rather than retained at the Upper Tribunal for remaking, was at the heart of the issues that the Court of Appeal had to consider in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512.

Procedural History in AEB

The Appellant, AEB, had been convicted of offences of dishonesty in 2017 and had been sentenced to four years' imprisonment. For that reason, he faced automatic deportation under section 32 of the UK Borders Act 2007. He brought a human rights claim against his deportation, relying on his private and family life under Article 8 ECHR, which was refused by the Secretary of State for the Home Department ("SSHD") in 2018.

AEB appealed against the refusal of his human rights claim. The First-tier Tribunal ("FtT") dismissed his appeal. AEB appealed against this decision to the Upper Tribunal ("UT"). The UT set aside the FtT's decision on the grounds that there were errors of law, including a decision to refuse an adjournment application that deprived AEB of a fair hearing. No findings of fact by the FtT were preserved. The UT decided that it was appropriate to remake the decision itself given the narrowness of the scope of the issues as they had developed. In a separate decision, the UT dismissed AEB's appeal.

AEB appealed by way of a second appeal against the UT's decision. Permission to appeal was granted on two grounds: 1) that the UT misdirected itself as to the applicable principles when deciding to retain AEB's appeal rather than remitting it to the FtT, and 2) 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.

Decision of the Court of Appeal

In the context of Ground 1, the legal framework relating to the disposal of appeals by the UT was examined. The Court of Appeal confirmed that section 12 of the Tribunals, Courts and Enforcement Act 2007 gives the UT an unfettered discretion to either remake the decision, once it has set aside a decision of the FtT, or to remit the case to the FtT with directions for its reconsideration. This discretion is the subject of Practice Directions and Practice Statements of the Immigration and Asylum Chambers of the FtT and the UT. The former tend to set out the steps to be taken by the parties, whereas the latter set out what the tribunals will do.

Paragraph 3.1 of the current Practice Directions states:

3.1. 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 Firsttier 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 re-make 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 states:

7 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.

The effect of both paragraphs is that the UT is likely to remake a decision, unless the exception under paragraph 7.2 applies, in which case the UT is likely to remit the case to the FtT.

The status of the Practice Directions and Practice Statements was argued but, ultimately, it was concluded, with reference to Brook v Reed [2011] EWCA Civ 331, that their propositions do not fetter the UT's discretion under section 12, do not seek to lay down immutable rules or establish propositions of law. They seek to reflect what is likely to occur in some circumstances and not in others. The Court endorsed the observations in JA (Ghana) v SSHD [2015] EWCA Civ 1031, where it was held that cogent and adequately expressed reasoning is required when the UT takes a different procedural approach to the "normal" approach set out in the Practice Statements.

The Court further endorsed the passage from the UT's judgment in MM (unfairness) Sudan v SSHD [2014] UKUT 00105 (IAC), which held that "where a first instance decision is set aside on the basis of an error of law involving the deprivation of the Appellant's right to a fair hearing, the appropriate course will be to remit to a newly constituted [FtT] for a fresh hearing". This was in view of the constitutional importance of the common law right to a fair hearing, warranting the full enjoyment of a litigant's statutory right of appeal to the FtT, prior to the right of appeal to the UT being triggered.

The SSHD conceded that the UT Judge failed to have regard to paragraph 7.2(a) of the Practice Statements and should have remitted AEB's case to the FtT, in view of the finding that AEB had been deprived of a fair hearing. However, the SSHD contested AEB's assertion that he was deprived of the "normal" two-tier approach, to which he would have been entitled had the case been remitted to the FtT and the FtT retook the decision in a manner that was not procedurally unfair. The SSHD argued that the loss of that two-tier approach was not material to the ultimate outcome of AEB's appeal and therefore neither was the UT's error in failing to remit the case.

The Court of Appeal disagreed. It held that the UT Judge had not only failed to have regard to paragraph 7.2(a), but also misinterpreted paragraph 7.2(b) by conflating the "limited scope of the issues" with the "the nature or extent of any judicial fact finding which is necessary" to which the paragraph refers. This was not addressed in the UT's decisions (the error of law or the substantive decision). It was held that "no good reason has been shown for not following the normal course of remitting a decision where the error of law rendered the hearing below unfair; and a conclusion that all facts would have to be found only serves to support the need to remit."

The Court held that "parties in general, and AEB in particular, should have had and should now have a two tier process that is fair throughout. [...] It does not mean that all cases where the hearing before the FtT have been unfair will necessarily fall to be remitted: but reasons for not doing so must be both cogent and expressed. Here there are none."

It was found that the UT's error was material, in that it deprived AEB of a fair hearing before the FtT, of the right to a first appeal "standard" error of law test in respect of the range of factual findings and evaluative judgments which would have been made by the FtT, and of the right to appeal against an adverse finding on a point of law that does not have to meet the second appeals test. The Court found that it cannot be said that the outcome would have been the same if the case had been remitted, as a different outcome could have fallen within the range of reasonable conclusions to which any Judge could have arrived, especially in such a nuanced case.

In view of the above, the Court found that the UT's errors were material and allowed the appeal on Ground 1.

Ground 2 related to the UT's approach to the question of "very compelling circumstances" within the meaning of section 117C(6) of the 2002 Act. The UT had found that AEB's deportation would be unduly harsh on his three qualifying children but that there was public interest in his deportation as there were not very compelling circumstances going above and beyond that. The arguments on behalf of AEB were that 1) the UT failed to consider that his sentence of 4 years was at the bottom of the range of sentences falling within section 117C(6) and therefore it took little beyond the exceptions in sections 117C(4)&(5) to amount to very compelling circumstances, and 2) the UT failed to give incremental weight to the effect of AEB's deportation being unduly harsh on his three children.

The Court of Appeal disagreed. It held that AEB's notional sentence before reduction for guilty plea was 65 months, and the 25% reduction on account of the guilty plea was not a factor related to the seriousness of the offence, following HA (Iraq) v SSHD [2022] UKSC 22. It was further held that the UT Judge had "fully in mind the fact-sensitive nature of the enquiry into the effects on the individual children", and had followed a consistent and correct approach in bringing the effect of the three children into the balancing exercise, by taking into account the totality of the effects upon the children.

Ground 2 was dismissed. As the appeal was allowed on Ground 1, the Court of Appeal set aside the UT's decision and remitted the case to the FtT to consider the appeal de novo.

Commentary

The disposal of a case following the finding of an error of law by the UT and the setting aside of a decision by the FtT is significant, as this judgment demonstrates. The Court of Appeal has confirmed the importance of the full enjoyment of the two-tier appellate system established by the Tribunals, Courts and Enforcement Act 2007.

The parties and the UT ought to have regard to the Practice Directions and Practice Statements in considering whether a decision should be remade by the UT or remitted to the FtT for a de novo hearing. Whilst the UT has unfettered discretion to decide this, and can therefore depart from the "normal" approach where the circumstances warrant it, cogent and adequately expressed reasons for doing so are required.

It is therefore important for parties to be prepared to address the matter of disposal during an error of law hearing.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.