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President gives guidance on guidance in latest instalment of online training course


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In the latest instalment of the ongoing online training course delivered by President McCloskey via BAILII on the nature, scope and practice of appeal and judicial review proceedings in the Immigration and Asylum Chamber, ONM (Remittal to FtT with directions) Jamaica [2015] UKUT 517 (IAC), we learn the following:

(i) The power conferred on the Upper Tribunal, exercisable upon remittal to the First-tier Tribunal, by section 12(b)(i) of the Tribunals, Courts and Enforcement Act 2007 to give directions is distinct from the power conferred by section 12(3)(b) to give procedural directions.

(ii) Directions under section 12(b)(i) encompass matters such as guidance on the law and the scope of the appeal upon remittal. In formulating such directions, the Upper Tribunal must be alert to the jurisdictional limits of the First-tier Tribunal.

(iii) Directions under section 12(3)(b) relate to matters of procedure concerning the conduct of the remitted appeal.

(iv) Both powers are to be exercised in a manner which promotes the interests of justice and gives effect to the overriding objective.

(v) The decision in PF (Nigeria) v SSHD [2015] EWCA Civ 251 does not rule conclusively that the First-tier Tribunal (and, on appeal, the Upper Tribunal) has no jurisdiction to consider a ground of appeal which canvasses the frustration of a substantive legitimate expectation, bearing in mind the “otherwise not in accordance with the law” statutory ground of appeal enshrined in section 84 of the Nationality, Immigration and Asylum Act 2002.

The procedural background to this course module is a deportation and asylum appeal that began in 2011 with a refusal by the Home Office, continued into 2012 with the appeal being dismissed but then a huge delay until in January 2015 the Upper Tribunal found that there was an error of law. There was a further hearing later in 2015 and then another hearing, which results in the determination under discussion, in which the Upper Tribunal finally orders a remittal to the FTT with directions.

The factual background is more interesting: the appellant was a police informer in the UK and argued this would expose him to danger if removed to Jamaica. A rather unconventional approach to evidence was adopted in the First-tier:

There are striking features of the appeal process conducted by the FtT: the reception of evidence in the form of a letter from the [West Midlands Police] which was undisclosed to any party; the receipt of oral evidence from a WMP police officer in camera; and the receipt of undisclosed evidence from a second police officer in the parties’ absence. Acting on the police evidence, the Tribunal found that the Appellant was registered as a covert human intelligence source (“CHIS”) by the WMP for a period of 15 months in 2006/2007, receiving certain financial rewards in consideration of the provision of information. It made a further finding that the Appellant’s claims about the quantity of information provided by him to the WMP had been “greatly exaggerated”.

The grounds of appeal pleaded that it was unlawful for neither of the parties to the appeal to know the identity of the police witness, to have no idea what the police witness said and to have no opportunity to cross examine that witness.

Well, yes! There were further grounds as well and the Home Office conceded that the determination of the appeal was unlawful. Sadly we do not discover the identity of the judge who adopted this approach. Nor do we learn why it took three years for the Upper Tribunal to deal with this matter given the Home Office concession.

In the directions for the rehearing the President draws attention to new rule 13 of the procedure rules, which permits secret evidence, and the grant of permission to the Immigration Law Practitioners Association to challenge that rule and suggests that the Home Office might like to instruct Counsel rather than rely on a Presenting Officer.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.