In Greenwood (No. 2) (para 398 considered) [2015] UKUT 629 (IAC), the “Empire Strikes Back” style sequel to Greenwood (Automatic Deportation: Order of Events) [2014] UKUT 342 (IAC), President McCloskey gives guidance on the correct approach to consideration of deportation appeals. This is a hotly contested and highly politicised area of work and his comments are interesting. The comments are all the more interesting when set alongside the contrasting approach adopted by the Court of Appeal in Secretary of State for the Home Department v Boyd [2015] EWCA Civ 1190, a judgment which was to appear on BAILII on the very same day.

Firstly, though, the official headnote for Greenwood No. 2:

(i) The exercise of considering whether there are very compelling circumstances over and above those described in paragraphs 399 and 399A of the Immigration Rules must, logically, be preceded by an assessment that the appellant’s case does not fall within paragraph 399 or 399A.

(ii) At the stages of both granting permission to appeal and determining appeals, it is essential to expose those cases where, properly analysed, the challenge to the First-tier Tribunal’s decision is based on unvarnished irrationality grounds. The elevated threshold for intervention on appeal thereby engaged must be recognised.

(iii) Every application for permission to appeal to the Upper Tribunal should be preceded by a conscientious, considered assessment of the decision of the First-tier Tribunal (“FtT”). Inundation of the Upper Tribunal with permission to appeal applications in every case belonging to a given category is not harmonious with the Parliamentary intention.

(iv) Remittal to the Secretary of State is not one of the disposal powers now available to the FtT, which are threefold: to allow the appeal, to dismiss the appeal or to make a decision the effect whereof is that the Secretary of State either must, or may, make a fresh decision.

(v) The eleventh hour advent of skeleton arguments and Rule 24 Notices is in breach of the Upper Tribunal’s procedural rules and is an unacceptable practice.

The FTT had allowed the deportation appeal in this case and the Home Office had appealed. The Presenting Officer ended up making some bizarre submissions on the nature of the scheme of the Immigration Rules which were obviously wrong and which the Upper Tribunal had no hestitation in dismissing. The correct approach is reiterated, which is to consider

1. Is the person liable for deportation?

2. If so, do the exceptions at paragraphs 399 or 399A apply?

3. If not, are there compelling circumstances “over and above” those described in paragraphs 399 and 399A?

Followers of immigration tribunal jurisprudence will be familiar with the considerable number of cases in which the Upper Tribunal proves very willing in appeals by the Home Office to detect errors of law that are imperceptible to others. Citing Edwards v Bairstow [1956] AC 14 President McCloskey seems to recognise and also deplore the development of this practice:

It requires no manipulation or distortion of the text of the FtT’s decision to conclude that the Judge, in deciding the appeal, gave effect to the approach which we have espoused above and to that contained in Chege. Mr Melvyn, on behalf of the Secretary of State, was driven to accept that the Judge’s decision is replete with correct self-directions in law. We remind ourselves of the scope for intervention of an appellate tribunal in cases of this kind. This, it may be observed, is sometimes overlooked. In particular, in practice, it is not addressed in the Secretary of State’s grounds of appeal. Nor is it routinely addressed in grants of permission to appeal to this Tribunal. Indeed one may also observe, with deference, that in a number of recent decisions of the Court of Appeal the governing principles do not feature.

The President goes on to criticise the Home Office practice of “slavishly” applying for permission to appeal against all decisions in which a deportation appeal is allowed:

18. The Upper Tribunal has the impression that the Secretary of State, as a matter of routine, applies for permission to appeal in every deportation appeal in which the appellant succeeds before the FtT. Furthermore, the grounds of appeal are frequently formulated in bland and formulaic terms. Thirdly, the grounds of appeal rarely, if ever, engage with the governing principles which we have rehearsed above. We would suggest that these observations be carefully considered by those who compile applications for permission to appeal and the Judges who decide them.

19. If there is indeed a practice of this kind it must be disapproved. To slavishly apply for permission to appeal to the Upper Tribunal in every deportation appeal resolved in favour of the appellant, if this be the practice, is not a proper or legitimate invocation of this Tribunal’s jurisdiction. Decisions on whether to apply for permission to appeal should be the product of conscientious and considered evaluation of the first instance judicial decision in every case. This, we consider, is what was contemplated by the legislature in making provision for this mechanism. Inundation of the Upper Tribunal with permission to appeal applications in every case belonging to a given category cannot be considered harmonious with the Parliamentary intention. Moreover, it is unfair to other tribunal users and undermines the important values of legal certainty and finality, which are two of the cornerstones of our legal system.

Personally, I doubt the Home Office will heed this advice. Home Office practice is ever more motivated by politics, not law. I also doubt that the Home Office gives a fig about the needs of other tribunal users than itself. In fact, I suspect the Home Office is very happy for tribunal time and resources to be expended in considering the supposed error of its ways in allowing deportation appeals rather than in timely consideration of other categories of case. Delay in achieving justice has, like the complexity of immigration law, become part of the “hostile environment” for migrants in the United Kingdom.

The tribunal needs the self respect to defend its own time and resources against those that would monopolise and misuse it. This has been sorely lacking in times past.

The President goes on to reiterate that there is no power in immigration appeals to “remit” appeals to the Home Office for consideration. This practice and language has been creeping back into fashion with judges in recent years despiute clear authority to the contrary. Examining the new statutory landscape under the Immigration Act 2014, the President concludes that a judge can in an appeal can still allow an appeal on the basis that the decision was unlawful which will have one of the folliwng two consequences:

(a) if the decision of the Secretary of State involved a determination of an application made by the litigant, a lawful decision remains to be made by the Secretary of State – and it is preferable that the FtT say so clearly;

(b) alternatively, if the challenge in the appeal was to an “own motion” decision of the Secretary of State, it would be a matter for the Secretary of State to decide whether a further decision should be made in the wake of the FtT’s decision.

As a footnote, little did the President know, perhaps, that the same day Greenwood (No. 2) appeared on BAILII, so too would Secretary of State for the Home Department v Boyd [2015] EWCA Civ 1190. I am not sure that Sir Stanley Burton is fully signed up to the mission to restore self respect within the Immigration and Asylum Chamber, nor to the need to identify a clear error of law:

I have set out at length the reasons given by the First-tier Tribunal and the Upper Tribunal because I frankly find them deficient. I have to say that I entirely fail to see how the determination of the First-tier Tribunal or that of the Upper Tribunal can be supported. This was a very clear case for upholding the deportation order. The offence committed by the Respondent was extremely serious. He had been in this country for a considerable time, but his presence was unlawful, which means that little weight can be attached to it. He had no child or partner, and therefore no nuclear family life to take into account. The Respondent had not committed any offence since his release from prison, but the period since his release was not substantial, and the risk of further offending is only one of the factors to be considered by the Secretary of State and the Tribunals on appeal. The First-tier Tribunal seems simply to have weighed the interests of the Respondent against the decision of the Secretary of State, with no appreciation of the important public interest in the deportation of a serious criminal. It regarded the circumstances of the Respondent as exceptional, but Mr Rene was unable to identify any factor in his case that could be regarded as exceptional, and there is no such factor. For this reason, the Upper Tribunal erred in finding that the First-tier Tribunal had correctly applied either an exceptionality test or that there were very compelling reasons for him to be allowed to remain in this country.

Sir Stanley definitely does not cite Edwards v Barstow. Or, as a colleague puts it, “Turns out CA can overturn FTT and UT because it disagrees with the outcome.”