When feeding my son, I sometimes have to heap the spoon up with something he likes to eat, to disguise something he does not.

This is what the Home Office did when applying for permission to appeal in Secretary of State for the Home Department v Barry [2018] EWCA Civ 790.

The resulting judgment of the Court of Appeal is the legal equivalent of his usual reaction: that is, to grab the spoon and attempt to redecorate the nearby furniture.

Aside from the spectacle of the Secretary of State getting a kicking in the higher courts, the judgment is noteworthy for what it says about the Home Office approach to litigation, and for demonstrating how hard it is to win a deportation appeal.

The “systemic failure”

The Home Office made a deportation order against Thierno Barry, who had committed a serious crime and was imprisoned for three years.

Mr Barry appealed against the deportation order to the First-tier Tribunal. He was married to a British woman, and had two young British children. If he were deported, it would mean the end of his relationship with them. The tribunal found in his favour:

the FTT concluded that there were exceptional circumstances in this case which outweighed the public interest in deportation (para. 165). It also emphasised that this was a “very strong” Article 8 claim and that it was a “rare case”.

The Secretary of State’s appeal to the Upper Tribunal was dismissed. Undeterred, a further application was made to the Court of Appeal for permission to appeal on the grounds that

that there may be a “systemic failure” by the UT when applying paras. 398 and 399 of the Immigration Rules

Applying the “second appeals test” derived from section 13(6) of the Tribunals, Courts and Enforcement Act 2007 — where permission is only granted where the appeal would raise some important point of principle or practice, or where there is some other compelling reason to hear the case — permission was granted.

Punitive costs order

At some stage, the Secretary of State decided that the sole ground upon which permission to appeal was granted was no longer arguable. This was not made clear to the court until the day of the hearing.

Like an audience member on BBC Question Time, straining with hands up to ask a really important question, the Secretary of State was called upon only to belch loudly down the microphone.

The Court of Appeal reacted much like one imagines David Dimbleby would in that situation: with a kind of bemused contempt, and an order to pay costs on the indemnity basis.

There was no issue of general importance other than the suggestion that there was a “systemic” problem in the UT. That was an unusual allegation and a serious one… Having obtained permission on that basis, the Appellant failed either to make the submission good with evidence or to pursue the argument. She abandoned it without even explaining why. In my view, in all the circumstances of this case, the Appellant’s conduct was indeed unreasonable to a high degree.

This means that the legal team for Mr Barry can charge their full commercial rates for his representation, and the bill will be picked up by the taxpayer.

The house that Hugo built

This judgment shows that, in the current climate, it is not enough to simply win a deportation appeal at the First-tier Tribunal.

You need a judge who can write, knows this corner of the law inside and out, and properly records the proceedings and any concessions made by the Secretary of State on the day of the hearing.

To paraphrase the title of the excellent 2010 report by the immense Bail for Immigration Detainees, you need a good judge, on a good day.

The determination of the First-tier Tribunal needs to be so perfect, so utterly watertight, that it can survive the scrutiny (in this case) of

• An Upper Tribunal judge at permission
• Two Upper Tribunal judges at an error of law hearing
• A Court of Appeal judge at permission
• Two Court of Appeal judges at full hearing

Fortunately for Mr Barry, he got Judge Norton-Taylor, who appears to have constructed a tribunal determination of such unspeakable fairness that not even the grounds-smuggling Home Office senior appeals team could touch it.

The “hostile environment” in the courts and tribunals

It is ironic that the Secretary of State complained of a “systemic” issue with the Upper Tribunal’s treatment of deportation cases.

It has long been the Secretary of State’s approach to challenge every allowed deportation appeal, notwithstanding the merits of the case, arguing at almost every turn that determinations of the immigration tribunals refuse to exhibit sufficient cap-doffing to the “public interest” in booting out foreign criminals.

As ever in this area, decisions are driven as much by politics as they are the law, with no apparent concern for the consequences. The Court of Appeal’s punitive costs order is the least it could have done.