Two new Upper Tribunal cases emphasise the importance of the parties to an immigration appeal identifying and addressing all the issues in dispute. Both the cases were decided by a panel that included Mr Justice Dove, the President of the Upper Tribunal (Immigration and Asylum Chamber). In Lata (principal controversial issues) [2023] UKUT 00163 (IAC) he sat with Upper Tribunal Judge O’Callaghan. In TC (PS compliance – “issues-based reasoning”) Zimbabwe [2023] UKUT 00164 (IAC), he sat with the President of the First-tier Tribunal (Immigration and Asylum Chamber), Judge Plimmer.

The practice statement

Both judgments address the requirements of the ‘reformed’ FTT appeal procedure. This was piloted in 2019, was expanded in 2020, and is now set out in a 2022 practice statement. Represented appellants have to submit a skeleton argument containing a summary of the facts, a schedule of issues, and their arguments. It must engage with the decision challenged and identify the evidence and legal principles relied on. Unrepresented appellants must provide a similar document called an Appellant’s ‘Explanation of Case’.

The Home Office must then provide a written response (usually referred to as a ‘Respondent’s review’). It is supposed to engage with the submissions and evidence in the skeleton argument, set out any additional reasons for refusal, and not be ‘standardised or pro forma’.

The idea of this process is that by the date of hearing both parties and the judge understand the matters in issue and the parties’ respective positions. As Lata explains, it has implications for any subsequent appeal to the Upper Tribunal.

Lata

Ms Lata had claimed asylum. The Home Office didn’t believe she was telling the truth or that she would be at risk on return to India, her country of nationality. She had two adult sons in the UK who gave evidence. At no point did the Home Office suggest that the sons could return with her. The First-tier Tribunal believed Ms Lata’s account, finding that she would be at risk in her home area and that relocation to another part of the country would be unduly harsh.

The Home Office then appealed to the Upper Tribunal. It argued that the First-tier Tribunal should have considered whether Ms Lata’s sons could accompany her to India so that internal relocation would not be unduly harsh. It pointed to an earlier human rights appeal by Ms Lata that had found her younger son, who was then a child, could return to India with her. The First-tier Tribunal, the Home Office said, should have treated this as its starting point.

The Upper Tribunal disagreed. The Home Office had never made the argument about the sons in the First-tier Tribunal. Under the reformed procedure, that was fatal:

The Secretary of State’s ground of appeal evidences a misconception that it is sufficient for a party to be silent upon, or not make an express concession as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. In simple terms, this amounts to a judge being required to search for and consider an ‘obvious’ point, though not so obvious that it was raised by a party at the hearing. The reformed appeal process that now operates in the FtT has been established to ensure that a judge is not required to trawl through the papers in an appeal to identify what issues are to be addressed. The task of the judge is to deal with the issues that the parties have identified.

TC

TC was also a Home Office appeal. The case concerned cessation of refugee status and an Article 3 claim based on TC’s mental ill health. As in Lata, the Home Office’s grounds of appeal raised points that had not been argued in the First-tier Tribunal. The Upper Tribunal said that this put the Home Office ‘in real difficulty’. In relation to the Article 3 claim, its failure to engage with TC’s evidence or raise ‘particularised concerns’ about it meant that it wasn’t able to dispel doubts about availability of suitable treatment as required by case law. Its appeal was dismissed on this ground, although allowed on others.

The Upper Tribunal took the opportunity to bemoan the state of the Respondent’s review. The document made ‘no effort whatsoever’ to engage with the evidence referred to in the skeleton argument. This was ‘an unacceptable departure from the requirements of procedural rigour’. The Upper Tribunal continued:

Reviews are pivotal to reform in the FTT. The [practice statement] makes it clear that they must be meaningful and pro-forma or standardised responses will be rejected. They provide the respondent with an important opportunity to review the relevant up to date evidence associated with the principal important controversial issues. It is to be expected that the FTT will be astute to ensure that the parties comply with the mandatory requirements of the [practice statement], including the substantive contents of [skeleton arguments] and reviews.

The Upper Tribunal highlighted the central importance of identifying the ‘principal controversial issues’ in every case. This phrase was also used in Lata.

Comment

The Upper Tribunal’s description of the Home Office’s approach to reviews will resonate with many immigration lawyers. I have seen a lot of respondent’s reviews in the last three years but I could count on one hand those that actually complied with the practice statement. Pointing this out is usually met with Home Office indifference and a judicial shrug of the shoulders. As for the prohibition of proforma and standardised responses, I could recite by heart the three paragraphs that begin most reviews. Despite the practice statement’s claim that such responses ‘will be rejected by the Tribunal’, I am yet to see this actually happen.

The stern words of the Upper Tribunal and the involvement of the First-tier Tribunal President in TC may lead to a more robust approach in future. The main difficulty in ensuring Home Office compliance, though, is likely to be the complete absence of a penalty for breaching the practice statement’s requirements. The First-tier Tribunal has no power, for example, to treat the appeal as unopposed simply because the Home Office has failed to engage. Anxious appellants may well be unwilling, or unable to afford, repeated adjournments for the Home Office to do a proper review, meaning that it gets away with ignoring its obligations. And there is very seldom any costs penalty imposed; none in either of these cases, for example.

A lack of personal accountability within the Home Office also does not help. The decision is made by one official. The review is conducted by another. Yet another official is responsible for defending the Home Office position at the First-tier Tribunal. Another will represent at the Upper Tribunal. This may be cheaper for the Home Office and may seem more efficient but it is all too easy for whoever has current charge of the case to implicitly or explicitly blame their predecessors. It’s always someone else’s fault at the Home Office. The costs of this division of labour tend to be hidden or off-loaded onto the tribunal service or claimants. If responsibility was more clearly assigned then the universal human desire to avoid a good ticking off might lead to a better culture of compliance without the same need for penalties.

The impact of the President’s plea for procedural rigour remains to be seen.