The Court of Appeal has found that the Upper Tribunal should not have continued to decide an appeal itself when it set aside a decision of the First-tier Tribunal. The case is AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512.

Background

AEB was convicted of offences for dishonesty and was sentenced to 4 years in prison. That conviction triggered his automatic deportation under section 32 of the UK Borders Act 2007. He made an Article 8 claim in response, relying on his family and private life. AEB has three children, all of whom have significant health issues, and he had been living in the UK continuously since 2005.

When the case came to the First-tier Tribunal, AEB request an adjournment so that he could get an expert social work report. His request was refused and the case was decided without this evidence. The Upper Tribunal took the view that this was procedurally unfair since the case focused on the consequences of the separation between AEB and his children and whether there were “very compelling circumstances” for him to remain in the UK. Once the Upper Tribunal set aside the First-tier Tribunal’s decision in this respect, it continued to decide the appeal itself rather than remitting it to a fresh hearing in front of the lower court. It did not provide reasons for doing so.

The Upper Tribunal dismissed the appeal and AEB subsequently appealed to the Court of Appeal. He claimed that the Upper Tribunal had misunderstood the circumstances in which it should have remitted the appeal to the First-tier Tribunal. And that the Upper Tribunal erred in considering whether there were “very compelling circumstances” for the purposes of section 117C of the Nationality and Asylum Act 2002. The focus of this post is on the Upper Tribunal’s misunderstanding of the circumstances in which it should have remitted the case for a fresh hearing in the First-tier Tribunal. The arguments that the court erred in its decision on the “very compelling circumstances” were dismissed.

Remitting a case to the First-tier Tribunal

Section 12 of the Tribunals, Courts and Enforcement Act 2007 permits the Upper Tribunal, when setting aside a decision of the First-tier Tribunal, to remit the case to the lower court or to remake the decision itself.  

The discretion as to when to remit or retain a case was set out in both the Practice Directions and Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal. The Practice Directions sets out steps to be taken by the parties whereas the Practice Statements tend to refer to what the Tribunal will do themselves. The latter is designed to encourage consistency of approach and understanding between practitioners.

Paragraph 3.1 of the Practice Directions says:

“Where permission to appeal to the Upper Tribunal has been granted, then…

• the Upper Tribunal will decide whether the making of the decision of the First-tier Tribunal involved the making of an error on a point of law, such that the decision should be set aside under section 12(2)(a) of the 2007 Act;
• except as specified in Practice Statement 7.2… the Upper Tribunal will proceed to re-make the decision under section 12(2)(b)(ii), if satisfied that the original decision should be set aside.”

Paragraph 7 of the current Practice Statement states the Upper Tribunal is “likely” to proceed to re-make any decision unless the effect of the error is to deprive the appellant of a fair hearing. The Court of Appeal confirmed that this did not lay down an immutable rule but only reflected on what was likely to happen in some circumstances and not others:

“The Secretary of State accepts that the [Upper Tribunal] departed from the guidance set out in paragraph 7.2(a) of the Practice Statements and that it was therefore incumbent on the Judge to provide reasons for this approach…The Secretary of State accepts that this reason cannot stand because paragraphs 7.2(a) and 7.2(b) should be read disjunctively. In other words, it was insufficient to refer solely to paragraph 7.2(b): the [Upper Tribunal] had also to consider whether paragraph 7.2(a) applied, which it failed to do.”

There was no good reason shown for not following the normal course of remitting a decision to the lower court. The Upper Tribunal had found that the hearing in the First-tier Tribunal had been procedurally unfair because of the decision not to adjourn the case to allow for the expert social care evidence to be obtained by AEB. The unfairness meant that the general position that it was “likely” that the Upper Tribunal would retain the appeal no longer applied.

By retaining the appeal for itself, the Upper Tribunal had also prevented the usual course of an appeal from the First-tier Tribunal to the Upper Tribunal. The first test for an appeal from the First-tier Tribunal to the Upper Tribunal is a far less stringent one, compared to the second appeal test when appealing from the Upper Tribunal to the Court of Appeal. The Home Office resisted this argument because of some apparent tension in case law, but the court was quick to confirm:

“that tension should be resolved in favour of ensuring that parties in general, and AEB in particular, should have had and should now have a two tier process that is fair throughout. That, in my judgment, is the very purpose that lies behind paragraph 7.2(a). It does not mean that all cases where the hearing before the [First-tier Tribunal] have been unfair will necessarily fall to be remitted: but reasons for not doing so must be both cogent and expressed. Here there are none.”

The result might not have been the same if AEB’s case had been remitted to the First-tier Tribunal. But if AEB lost at that point, he would at least have had two possible tiers of appeal above him. The Upper Tribunal erred in its choice to decide the case itself and the court allowed the appeal on this ground.

Comment

This case is a useful reminder that there remains a small subset of cases in which it is appropriate for a matter to be remitted back to the First-tier Tribunal for a fresh hearing. We are accustomed to having the Upper Tribunal decide cases itself and if they find it in our client’s favour, for example based on an error in law, they will usually allow the appeal. No complaints there.

But in cases like AEB’s, where individuals have not had a fair hearing, there is a real danger that when the Upper Tribunal make their own findings, they do so in a way which is adverse to the client. In those circumstances, it becomes more important to have the security of a multi-tier appeal mechanism, where each tier has a different level of test to meet. An appeal to the Court of Appeal also costs a vast amount compared to simply appealing from the First-tier Tribunal to the Upper Tribunal. I have beaten this particular drum on many occasions. Often it is rare for individuals to be able to afford litigation in the higher courts without legal aid funding and having to jump to an appeal of this magnitude in terms of the tests to meet and the costs to bear is not always appropriate.