In the case of VV (grounds of appeal) [2016] UKUT 53 (IAC) (13 November 2015) the Upper Tribunal yet again criticises Home Office conduct of appeals to the Upper Tribunal against decisions of the First-tier. This case comes on top of Nixon (permission to appeal: grounds) [2014] UKUT 368 (IAC) (FM post: Contrasting cases on grounds of appeal) and MR (permission to appeal: Tribunal’s approach) Brazil [2015] UKUT 00029 (IAC) (FM post: “Wing and a prayer” grounds of appeal criticised by President).

This time, the tribunal criticises first the general approach to the drafting of Home Office appeals:

Experience in this and other appeals by the Respondent leads us to express concern as to whether, before formulating grounds of appeal, sufficient care is being taken within the Home Office to apply well-established principles for identifying an error of law and to appraise fairly and realistically the manner in which judges of the First-Tier Tribunal have expressed their conclusions.

The practice at the Home Office of having civil servants who do not conduct advocacy draft grounds of appeal is a very, very poor one and it means that day to day feedback in the form of judicial approval or disapproval of grounds of appeal simply does not reach those responsible for drafting them. The fact that the drafters only have the judge’s determination and not the full file is also profoundly problematic. The Home Office drafters basically operate in a hermetically sealed vacuum.

The tribunal then moves on specifically to criticise the approach of the Home Office to challenging the reasons given by judges in human rights cases:

Again we feel bound to question whether those responsible for launching grounds of appeal of this nature are correctly applying in each case the law on what must be demonstrated in order to vitiate an appeal decision for legal inadequacy of reasoning.

Finally, the tribunal turns to the general Home Office practice of abandoning the rubbish grounds of appeal (on which permission was nevertheless somehow granted) and trying to argue something different and perhaps (but certainly not always) more sensible at the actual hearing:

In this case, and in others, we have observed the Secretary of State obtaining permission to appeal on grounds which are not pursued at the hearing in the Upper Tribunal, because it is eventually acknowledged that they are unarguable.

This is, of course, an outcome from using the hermetically sealed drafting factory.

The determination ends with a general plea that the resources of the tribunal not be wasted. Here, it is hard to understand what on earth the tribunal thinks it is doing. With claimant representatives acting in alleged breach of their professional duties and wasting court time, the tribunal starts summoning to the tribunal, referring to the regulator and making costs orders. With the Home Office, we have repeated pleas for moderation and still no enforcement. On the contrary, the tribunal continues to bend or break the rules for the Home Office and keeps on granting permission!

If the tribunal wants to control poor Home Office litigation conduct, the tribunal will need to actually do something about it rather than wringing its hands. Refusing rubbish applications for permission would be a good start. The prevalent view seems to be that claimant lawyers are venal crooks who need to be watched carefully and Home Office officials honest and hard pressed public servants who need to be given every assistance. The issue of institutionalisation at the Home Office is not one that concerns the tribunal, it seems, despite some interesting work by the SRA on the influence of institutional clients on lawyers and the remarkable recent case of Babbage.

Anyway, the rather bland official headnote:

(1)    An application for permission to appeal on the grounds of inadequacy of reasoning in the decision of the First-tier Tribunal must generally demonstrate by reference to the material and arguments placed before that Tribunal that (a) the matter involved a substantial issue between the parties at first instance and (b) that the Tribunal either failed to deal with that matter at all, or gave reasons on that point which are so unclear that they may well conceal an error of law.

(2)    Given that parties are under a duty to help further the overriding objective and to co-operate with the Upper Tribunal, those drafting grounds of appeal (a) should proceed on the basis that decisions of the First-tier Tribunal are to be read fairly and as a whole and without excessive legalism; (b) should not seek to argue that a particular consideration was not taken into account by the Tribunal when it can be seen from the decision read fairly and as a whole that it was (and the real disagreement is with the Tribunal’s assessment of the evidence or the merits); and (c) should not challenge the adequacy of the reasons given by the First-tier Tribunal without demonstrating how the principles in (1) above have been breached, by reference to the materials placed before that Tribunal and the important or substantial issues which it was asked to determine in that particular case.

(3)    Where permission to appeal is granted, an Appellant should review whether the grounds of appeal are genuinely arguable in the light of any response from the Respondent to the appeal. Whether or not the original grounds are pursued, it is generally inappropriate to seek to raise new grounds of appeal close to the date of the hearing if, for example, that would cause unfairness to a Respondent or result in the hearing being adjourned.