The Upper Tribunal has watered down the effect of a recent decision of the Court of Appeal in the case of AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512. The Upper Tribunal’s judgment reaffirms that where an appellant has not had a fair hearing they will usually remit any appeal to the First-tier Tribunal for a rehearing. But it also confirms that not every finding of unfairness needs to be remitted. The nature of the unfairness and the extent of its impact need to be considered. The case is Begum (Remaking or remittal) [2023] UKUT 00046 (IAC).

A short history

At the end of last year, the Court of Appeal in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1152 confirmed the general position that the Upper Tribunal should generally continue to decide cases itself where an appeal has been allowed against the First-tier Tribunal’s decision. This was a power the tribunal held expressly under section 12 of the Tribunals, Courts and Enforcement Act 2007. You can read more about that case here.

The way that discretion is to be exercised is set out in both Practice Directions and Statements and this is where a slight divergence in approach opened up. The Practice Statement said that the Upper Tribunal would “likely” re-make any decision unless an appellant did not have a fair hearing. The Practice Directions were more directly worded, saying that “the Upper Tribunal will proceed to re-make the decision…”. The Court of Appeal said that if a hearing had been unfair, it disapplied the general rule that the Upper Tribunal was “likely” to retain the appeal. One of the considerations was that the appellant would otherwise be deprived of a two-tier process that is fair throughout. If there was a decision not to remit, that required “cogent” reasons.

The decision

In this case, the appellant was relying on article 8 grounds to remain. Additional evidence had been lodged with the First-tier Tribunal by email, including letters from the appellant’s children that they were not in a financial position to support their mother. In the decision, the judge referred to receiving the material emailed to him but made findings that appeared to directly contradict the evidence. The Home Office accepted that the judge had failed to take into account the additional evidence.

Once it was decided that the appeal was to be allowed, the next question was whether it should be remitted or retained. Ms Begum’s lawyers argued that the error made by the judge was a matter of fairness and the matter should be remitted.

The Upper Tribunal decided that it was necessary to take a holistic approach as to how much the unfairness had actually affected the decision-making process. They said that the fact that the additional evidence was overlooked only impacted a discreet strand of the proportionality assessment. The judge’s conclusions on Ms Begum’s circumstances in the UK, her current medical condition, the impact of that medical condition on her ability to care for herself and her requirement for support, were all soundly made and would stand. The only aspect of the judge’s decision which was affected was whether the appellant could anticipate being supported were she to have to return to Bangladesh.

Although the Upper Tribunal had regard to the fact that Ms Begum would be deprived of a two-stage decision-making process, this was only a factor to be weighed in the balance. It was also necessary to consider:

1. The nature of the error of law
2. The effect of the unfairness on the decision as a whole
3. The nature and extent of the unfairness as part and parcel of the exercise of discretion as to whether the matter should be remitted

The Upper Tribunal therefore retained the appeal and allowed the single issue of the availability of support in Bangladesh, to be redetermined.

Discussion

This is a slightly disappointing decision. If the Practice Statement had intended to set out degrees of unfairness, it could have done so. As it is currently drafted, they simply say that if a party has been deprived of a fair hearing, the Upper Tribunal are not likely to retain the appeal and should instead remit. It doesn’t seem to be of much use to go further than that, adding another layer of complexity by considering how unfair something is. It will usually be obvious as to how unfairness has affected the decision-making process in each case (like in this one).

My main concern is that the effect of this Upper Tribunal decision is to now water down the words of the Court of Appeal in AEB and not treating the two-tier appeals system with sufficient importance. The Court of Appeal had found that it could not be said that the loss of an uncontaminated two-tier decision-making process was not material. That has now been reduced to only being “a factor” to weigh in the balance.

Forcing more appellants to appeal from the Upper Tribunal to the Court of Appeal (or Court of Session in Scotland) is not a good thing. It is likely to add significant time (months or years), expense (sometimes tens of thousands of pounds if an appellant is not legally aided), and unease for appellants who will have already spent a long time in limbo waiting for the decision of their application, the decision of the First-tier Tribunal and the decision of the Upper Tribunal.