In MS (appealable decisions; PTA requirements; anonymity : Belgium) [2019] UKUT 216 (IAC), President Lane and Upper Tribunal Judges Gill and Finch provide important guidance on jurisdiction in EEA deportation and Article 8 appeals and the correct procedure for raising “cross appeals” in the Upper Tribunal.

I represented the claimant at three separate Upper Tribunal hearings, instructed by Duncan Lewis.

Background

The claimant was a Belgian national with a history of criminal offending as a juvenile and several convictions for domestic violence as an adult. The Secretary of State made a deportation order against him under the 2016 EEA Regulations. MS did not appeal and was deported. He re-entered the UK on two occasions in breach of the deportation order, remaining in the UK since his last re-entry.

The claimant’s solicitors sent representations to the Secretary of State seeking to revoke the deportation order under regulation 34. Those representations were refused in a letter that addressed both the EEA Regulations and Article 8, but granted the claimant a right of appeal under the EEA Regulations.

The claimant appealed to the First-tier Tribunal where his appeal was allowed on the basis that he had acquired permanent residence following five years of continuous residence in the UK and that he had been rehabilitated. The judge did not deal with the Article 8 appeal in any substance.

The Secretary of State sought and was granted permission to appeal to the Upper Tribunal due to numerous defects in the First-tier Tribunal’s determination.

The claimant’s solicitors filed a Rule 24 response (under the Upper Tribunal Procedure Rules 2008) seeking to defend the tribunal’s conclusions on the EEA appeal, and to “cross appeal” on the ground that it had failed to consider the claimant’s Article 8 appeal.

The Upper Tribunal proceedings

Until the morning of the first error of law hearing in the Upper Tribunal, the parties had assumed that the tribunal had jurisdiction to hear the claimant’s EEA appeal. That, however, was incorrect on the face of the EEA Regulations, which prohibit in-country applications to revoke deportation orders (by regulation 34(4)) and prevent refusals of such applications from giving rise to an in-country right of appeal (by regulation 37(1)(d)). I raised the jurisdiction point in my first skeleton argument because it seemed to me a rather large elephant in the room.

Several hearings later, the issues crystallised as follows: (i) whether the tribunal has jurisdiction to hear in-country appeal by an EEA national against a refusal to revoke a deportation order, and if so on what basis; and (ii) whether the claimant could cross appeal in the Upper Tribunal on the Article 8 ground without having sought permission to appeal from the First-tier Tribunal, considering the guidance in EG and NG (UT rule 17: withdrawal; rule 24: scope) Ethiopia [2013] UKUT 00143 (IAC).

The jurisdiction point

This unfolded over 3 stages.

1. Was there jurisdiction to hear in-country appeals against refusals to revoke EEA deportation orders?

The claimant argued that there was jurisdiction because the restrictions in regulations 34 and 37 of the EEA Regulations should be read down so as to be compatible with human rights legislation.

The claimant cited certain comments of Michael Fordham QC, sitting as a deputy judge of the High Court, in BXS v Secretary of State for the Home Department [2014] EWHC 737 (Admin), where he discussed (at paragraphs 23 to 24) the need for the restrictions on revocation applications and appeals in the predecessor 2006 EEA Regulations to be applied flexibly if their enforcement would result in breaches of Article 8 or EU law.

But the Upper Tribunal accepted the Secretary of State’s argument that the 2016 Regulations have a built-in mechanism for preventing removals that breach human rights. Thus regulation 33 limits the circumstances in which removal can take place when an appeal is pending. It set aside the First-tier Tribunal’s decision on the EEA appeal and dismissed it for lack of jurisdiction.

2. The Article 8 appeal

That was not the end of the matter. The Secretary of State’s decision to refuse to revoke the EEA deportation order was, in effect, two decisions in one (with a decision under the EEA regulations that did not have an in-country right of appeal, and a decision on the Article 8 claim which did attract an in-country right of appeal). 

This analysis was in keeping with Lord Justice Sales’ discussion of the pre-Immigration Act 2014 appeal framework at paragraph 30 of Amirteymour v Secretary of State for the Home Department [2017] EWCA Civ 353, which the claimant cited.

To avoid future misunderstandings, the Upper Tribunal made recommendations to the Secretary of State’s decision-makers:

It would be desirable if, henceforth, the Secretary of State were to make it plain in decision letters of the present kind that he is not only deciding an application by reference to 2016 Regulations but also refusing a human rights claim under section 82(1)(b) of the 2002 Act. Such an approach may well have assisted the parties and the judge in the present case.

3. Is a judge’s refusal to make a decision an appealable “decision” in itself?

The Secretary of State tried to raise a further hurdle to the claimant’s appeal being heard by arguing that the First-tier Tribunals refusal to deal with the Article 8 claim was not in fact a decision at all. The claimant refuted this on the basis that a “decision” for the purposes of section 11(1) of the Tribunals, Courts and Enforcement Act 2007 must include a refusal or failure to address a claim. 

If the Secretary of State were correct, individuals would have no right of appeal against a wrongful decision by the tribunal not to deal with their appeals, with judicial review as the only a remedy. The Upper Tribunal concluded that the Secretary of State’s submission would lead to “complexity, delay and expense” and did not reflect the will of Parliament, and rejected it (at paragraph 47). In summary:

A decision by the First-tier Tribunal not to decide a ground of appeal constitutes a “decision” for the purposes of s.11(1) of the Tribunals, Courts and Enforcement Act 2007. It may therefore be appealed to the Upper Tribunal [see paragraph 61(i)].

The procedural point

How should the claimant have gone about challenging the First-tier Tribunal’s refusal to deal with his Article 8 appeal given that he had won (albeit erroneously) his EEA appeal? Once the 14 day time limit for the claimant to seek permission to appeal had expired, and once Upper Tribunal proceedings had commenced, it was procedurally awkward for the claimant to ask the First-tier Tribunal for permission to appeal.

The Upper Tribunal quoted at length from previous guidance in EG and NG. In outline, that case suggested:

• A party that has not sought permission to appeal from the First-tier Tribunal in writing cannot obtain permission to appeal directly from the Upper. That was the combined effect of section 11(3) of the Tribunals, Courts and Enforcement Act 2007 Act, the First-tier Tribunal Procedure Rules 2014 (rule 33(1)) and the Upper Tribunal Procedure Rules 2008 (rule 21(2);
• The Upper Tribunal has no power to bypass these requirements and grant permission to appeal directly;
• A respondent in the Upper Tribunal cannot rely on a Rule 24 response as an alternative to seeking permission to appeal as the rules require;
• If a respondent wishes to argue before the Upper Tribunal that the First-tier judge should have reached a materially different outcome (including, in protection cases, that the appeal should have been allowed on a different ground) then the respondent must obtain permission to appeal in compliance with the rules;
• A written application for permission to appeal could, in theory, be decided by the Upper Tribunal if it re-constituted itself as Judge/s of the First-tier Tribunal. However, this was likely to be disruptive and could lead to adjournment applications where permission was refused.

The Upper Tribunal then departed from a central tenet of EG and NG and held that it can grant permission to appeal directly to a party that has not complied with the rules. It cited in support the general power in Rule 7(2)(a) of the 2008 Procedure Rules to waive any requirements to comply with the rules. Rule 7 was used in Ved and another (appealable decisions; permission applications; Basnet) [2014] UKUT 150 (IAC) to allow the appellants to seek permission to appeal from the Upper Tribunal directly.

The Upper Tribunal accepted the claimant’s submission that academic appeals (which confer no material benefit on a person) should be discouraged as contrary to the overriding objective and the finality principle in litigation. The key test is now whether there would be a material benefit to a person if they succeeded on the relevant, alternative ground.

For example, where a person seeks leave as a refugee and has their asylum appeal refused but their Article 8 appeal allowed, the Upper Tribunal would expect that person to seek permission to appeal from the First-tier Tribunal on the asylum ground within the relevant time limit because there would be a material advantage to the person if they were successful on their asylum appeal and recognised as a refugee compared with the grant of leave on the basis of Article 8.

The Upper Tribunal would be “very unlikely to be sympathetic” in its use of Rule 7 to people who: 

• win in the First-tier Tribunal on an inferior ground of appeal; 
• could and should seek permission to appeal on a more advantageous ground within the relevant time limit but fail to do so; and
• only seek to challenge the refusal of the more advantageous ground of appeal after the Secretary of State has been granted permission to appeal to the Upper Tribunal.

In the end, the Upper Tribunal allowed the claimant to use a Rule 24 response to challenge the Article 8 ground on which he had not been successful in the First-tier Tribunal, notwithstanding the absence of permission to appeal.

That was because having succeeded initially (though erroneously) on his EEA appeal, there was no material benefit to him pursuing the Article 8 appeal. Challenging the refusal of his Article 8 appeal would have been academic (until the Secretary of State had been granted permission to appeal to the Upper Tribunal).

The Upper Tribunal allowed the claimant’s Article 8 appeal for the simple reason that the First-tier Tribunal had failed to deal with it. The First-tier Tribunal’s decision was set aside and will be remade by the Upper Tribunal.

Comment

Where an appellant succeeds on one of their grounds of appeal, it is common practice for First-tier Tribunal judges to omit dealing with any alternative grounds. MS confirms that such omissions are, nevertheless, appealable decisions. If the alternative grounds that have not been dealt with would offer a benefit to the appellant compared to the ground on which they have won, the Upper Tribunal will expect the appellant to seek permission to appeal within the relevant time limit.

It is open to argument whether the mechanism in regulation 33 of the 2016 EEA Regulations provides sufficient protection against breaches of Article 8, given that it only applies where a person has filed an appeal. For those who do not have a pending appeal against an EEA deportation order, like the claimant, the 2016 EEA regulations offer no such protection from removal.

The Upper Tribunal has given itself the power to deal with permission to appeal directly, despite the rules (and primary legislation) suggesting it cannot do so. This was not an outcome that either party to the appeal contended for but a product of the Upper Tribunal’s making. Whether Rule 7(2)(a) of the 2008 Procedure Rules provides a reliable foundation for circumventing section 11(3) of the 2007 Act is questionable, to say the least. 

It will be interesting also to see how the “materiality” test weathers over time given the ever-proliferating forms of leave and “settled status” and the fact that what is considered more or less advantageous may depend on personal circumstances.

For now, MS offers clarity on when permission to appeal should be obtained by a party that has partially won in the First-tier Tribunal, and when a “cross appeal” can be argued by a respondent via a Rule 24 response in the Upper Tribunal without any prior permission to appeal.

This article has been changed to remove the appellant’s name, in line with an anonymity order granted in the Upper Tribunal’s subsequent judgment remaking the decision in his case.