Upper Tribunal failures see appeal returned to the First-tier Tribunal for a third time

The Court of Appeal has returned an appeal to the First-tier Tribunal to be determined for a third time after a series of errors made in a First-tier Tribunal decision was not dealt with by the Upper Tribunal. The court was clearly unimpressed, stating that “If the UT had carried out its task properly, it seems unlikely that a second appeal to this court would have been necessary.” The case is AA (Morocco) v Secretary of State for the Home Department [2025] EWCA Civ 144.

Background

AA is a Moroccan national who arrived in the UK in May 2016 and claimed asylum on 23 August 2016, on his 17th birthday. His claim was refused on 23 August 2019.

AA appealed the decision and the appeal was heard on 2 November 2020. The appeal was on the grounds that AA was at risk in Morocco because of his political opinions and/or as a person with mental ill health, alternatively that he was in need of humanitarian protection, that there would be a breach of articles 3 and 8 if he was returned to Morocco and that there would be very significant obstacles to his integration into Morocco and so he should be granted leave under paragraph 276ADE(1)(vi) of the immigration rules. His appeal was allowed on the last of these grounds, under paragraph 276ADE(1)(vi) of the rules.

Both parties applied for and were granted permission to appeal to the Upper Tribunal and both appeals were subsequently allowed on 10 May 2021, with the case being remitted to the First-tier Tribunal.

On 10 June 2022 the First-tier Tribunal dismissed the asylum/humanitarian protection appeal and allowed the appeal on the articles 3 and 8 grounds. Both parties appealed again and both parties succeeded again in a decision made on 4 December 2023, with the Upper Tribunal again ordering the appeal back to the First-tier Tribunal for fresh consideration.

The Court of Appeal

The appellant applied for permission to appeal to the Court of Appeal. He sought to challenge the Upper Tribunal’s decision to allow the Home Secretary’s appeal on the human rights grounds, arguing that his grounds for opposing the appeal had not been addressed or determined. The Home Secretary in the respondent’s notice argued that the Upper Tribunal’s decision to remit both the human rights appeal and the asylum/humanitarian protection appeal to the First-tier Tribunal should be maintained.

The Court of Appeal agreed that the First-tier Tribunal’s decision was flawed, saying that:

because differing legal principles applied to the protections and rights relied upon by the appellant, it was necessary for the tribunal to consider each aspect separately, applying the relevant principles to that evidence. The analysis set out below shows why it was an error of law for the FTT to consider claims “in the round”.

The court then set out the different legal tests for each of the claims and said that what was required from the First-tier Tribunal judge was “was a series of proper determinations of each claim in a logical sequence”. Whereas instead the “FTT’s decision jumps from one subject to another without a clear, coherent, and comprehensive legal structure for determining each claim”.

Another reason given by the court as to the need for clear and separate findings for each of AA’s claims was because of the different types of immigration status attached to each of his claims.

The Court of Appeal agreed with AA that the Upper Tribunal had proceeded on the erroneous basis that AA had agreed that the Home Secretary’s appeal should be allowed and the matter remitted. The court noted that if this error had not been made, the tribunal:

would have been obliged to identify and grapple with the legal errors in the decision of Judge Davey, including the failure to comply with the decision of Judge Smith. If the UT had carried out its task properly, it seems unlikely that a second appeal to this court would have been necessary.

However the court also said that there was “no doubt” that the Home Secretary’s appeal against the First-tier Tribunal’s decision on the human rights appeal should also be allowed and the matter remitted to the First-tier Tribunal.

Conclusion

The appeal will now return to the First-tier Tribunal, over five and a half years after AA’s claim was refused, but for different reasons to those identified by the Upper Tribunal. And, presumably because of the previous handling of this appeal, the court said that the case should be placed before the President of the First-tier Tribunal to consider case management directions.

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