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Outgoing tribunal president criticises Home Office practice of drafting anonymous grounds of appeal
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In Joseph (permission to appeal requirements)  UKUT 00218 (IAC), the appellant was a national of Trinidad and Tobago who had resided in the UK since 2007. She had a costs order of £400 made against her in 2014, following an unsuccessful judicial review. In September 2019 she made an application to stay in the UK based on her health conditions arising from her kidney transplant and continuing need to take immunosuppressant medication in order to avoid end-stage kidney failure and life long dialysis. This application was rejected by the Home Office on suitability grounds, because of the unpaid costs order (“litigation debt”) as well as an NHS debt of £2,831. The Home Office also did not accept that her health conditions were sufficiently serious for a grant of leave on Article 3 grounds, as treatment was available in Trinidad and Tobago, albeit that it would need to be paid for.
The First-tier Tribunal judge found that the appellant was not credible in relation to her claim to have forgotten about the litigation and NHS debts. However there was no evidence that the appellant would be able to access the treatment she needed in Trinidad and Tobago, and her appeal was allowed on both Article 3 and 8 grounds. The Home Office sought and was granted permission by the First-tier Tribunal to appeal this decision to the Upper Tribunal.
Upper Tribunal appeals are about law not opinion
The Upper Tribunal, chaired by President Lane, is critical of the attempt by the Home Office to frame what essentially amounted to a disagreement with the First-tier judge’s finding of facts as an error of law:
In our judgment, “does not meet”, “has not provided evidence”, and “the requirements… are not met” are the language of disagreement, not of an error of law. It is rarely appropriate simply to use the language of disagreement in grounds of appeal that seek to demonstrate an arguable error of law. Where grounds seek to demonstrate that no reasonable judge could have reached the finding(s) that the judge reached, or that there was no evidence to support the findings found, those contentions should be identified expressly. But it is important not to attempt to re-package disagreements as errors of law, or reasons or rationality-based challenges. Simply peppering a series of disagreements of fact and weight with well-established terminology relating to the error of law jurisdiction will not have the effect of bringing such disagreements into error of law territory.Paragraph 47
The Upper Tribunal dismissed the appeal at the hearing, with the written decision following later. It was held that the findings reached by the First-tier judge were open to them, and the reasons given were sufficient.
As indicated in the case name however, the reason this decision was reported is because of some procedural issues that arose, which are addressed at length in the judgment.
Home Office officials should not be anonymous
At paragraphs 8 and 9 of the decision, the Upper Tribunal sets out procedural distinctions between information required for permission to appeal applications made in the First-tier Tribunal as compared to the Upper Tribunal. The Upper Tribunal rules state that an application for permission to appeal must state the name and address of the representative, unlike the the First-tier rules. One of the reasons suggested for these differences is that the Upper Tribunal does not have the information and documents that have been provided to the First-tier during the appeal. Given the move to online appeals, it is unclear why access for the Upper Tribunal to all information that has been provided via MyHMCTS cannot be facilitated.
It seems that in this case the Home Office used an internal appeal form with the wrong time limit written on it for permission to appeal application, instead of the publicly available form IAFT-4. No identifying details were provided of the person completing the application, where the applicant/solicitor’s signature is required, the person had put an “x”.
The UT acknowledges that the lack of identifying details
was not an express breach of a requirement of rule 33 of the FTT Rules as such, we consider that it is hardly an approach that may be said to have been adopted in the spirit of full cooperation with the Tribunal and with the other party, the respondent to these proceedings.
Both the grounds and the decision granting permission to appeal were very brief.
The main reason for the UT’s heavy emphasis on the need for the individual making the application to provide their name seems to be that set out at paragraph 11:
“Where a representative states their name on an application for permission to appeal… the public linkage of that individual with the application may result in greater ownership of, and responsibility for, the contents of the application. In turn, we hope, that may have a positive impact on the quality of the grounds of appeal, and of any ensuing judicial decision concerning permission to appeal”.
This seems a slightly naïve hope, in two different ways. Firstly, it is not unusual to see poor applications that have been made with names on. Secondly, it seems unlikely the Home Office will voluntarily comply with what ultimately amount to a polite request rather than a legal requirement. The request applies equally to those who were the appellants in the First-tier Tribunal as it does to the Home Office.
Judges should give reasons for granting permission
The First-tier itself then also comes in for criticism for granting permission so readily without reasons in this case. The Upper Tribunal at paragraph 21 states that although the Tribunal Rules make express provision for reasons to be given only where permission is refused,
the need for judges to give reasons for decisions is a foundational principle of natural justice. To avoid a grant of permission to appeal being infected by poorly pleaded grounds, the permission judge should briefly state the reasons for granting permission, especially where the grounds of appeal challenge findings of fact reached by the FTT. It is good practice to do so, concentrates the mind, and is a helpful exercise in self-restraint. Giving reasons, even briefly, will require the permission judge to focus on the established appellate restraint to which the UT, in common with all appellate courts and tribunals, is subject when reviewing findings of fact reached by a trial judge. Where, notwithstanding the appellate restraint in relation to findings of fact, a permission judge considers that the findings of fact reached by the judge below arguably involve the making of an error of law, it will be helpful for the tribunal dealing with the substantive appeal to know in precise terms why the permission judge took that view.
This is a sensible request that would be useful for all concerned if adopted.
However neither of the points made by the Upper Tribunal are required under the Rules, as they accept, so I am doubtful as to whether we will see any changes to practice as a result of this decision. We have seen similar points made by previous Presidents and suspect we’ll be seeing them again from future Presidents.