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Upper Tribunal rebuked for failing to understand its job (again)


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The Court of Appeal has rebuked the Upper Tribunal for reversing an immigration judge’s decision without identifying an error of law. The Upper Tribunal’s jurisdiction to allow an appeal from the First-tier Tribunal depends on having first identified an error of law in the decision. In this case, the Upper Tribunal failed to do so. Regular readers will be familiar with the Court of Appeal correcting the Upper Tribunal for making this type of mistake: see this entry clearance example and this deportation example.

“Mere disagreement”

AE (Iraq) v Secretary of State for the Home Department [2021] EWCA Civ 948 concerned a woman being excluded from Refugee Convention protection over “online statements encouraging jihad”. There was no significant dispute about the law in this area and the Upper Tribunal acknowledged that the First-tier had set out that law correctly. But it nevertheless allowed the Home Office’s appeal on the ground that the lower tribunal had applied incorrect weighting to the evidence. As Lord Justice Warby commented, this is a red flag that an appellate court has strayed beyond its remit:

Language such as this bears the hallmark of appellate error. It is trite, but relevant, to say that mere disagreement is not a ground on which to reverse a decision. The assessment of weight is generally for the court or tribunal of first instance. All of this lends strong support to Mr Mackenzie’s submission that the UT departed from its own self-direction; it substituted its own decision for that of the primary decision-maker, having failed to identify any error of law in the decision of the FTT. Reviewing a multi-factorial assessment, which has been categorised as a question of fact, it reached its own conclusions on individual elements and on the significance of those elements in the context of the applicable law, and then substituted those conclusions for those of the FTT.

Home Office lawyers tried to rescue the Upper Tribunal decision on the basis that it must have identified that the original decision was irrational (i.e. an error of law). This argument failed because the Upper Tribunal had not used the term “irrational”, neither had the Home Office in its grounds of appeal or skeleton argument, and anyway the Court of Appeal was confident that the decision had not been irrational.

Status of sentencing remarks

Although the case focused on the failure of the Upper Tribunal to identify an error of law, there are some interesting obiter comments about the correct approach to sentencing remarks, which are often relied upon by the Home Office in deportation cases. The court highlighted the need to distinguish between factual and evaluative comments made by the sentencing judge:

… the notion of “going behind” the sentencing remarks is a metaphor, which is not a term of art, and seems to me potentially problematic. I have wondered about its status as an error of law. Criminal sentencing is undertaken in separate proceedings, on a legally different basis from the assessment of gravity for the purposes of Article 1F(c). Here, it was sensibly agreed that the sentencing remarks could be relied on for their factual findings. But that may not always be agreed, in which case issues might arise as to the legal basis for asserting that the remarks bind the appellant. In any event, factual assessments may not always be crystal clear, or their precise basis may be debatable. Sentencing remarks may quite properly contain language such as (in this case) “massive scale”, which is evaluative rather than factual in nature. The boundary between fact and comment may not always be obvious.

Potentially helpful comments for appellants in cases where it might be argued that the evaluative comments of the sentencing judge are unnecessarily harsh.

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Alex Schymyck

Alex is a barrister at Garden Court Chambers