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Court of Appeal: UT should normally re-make decision instead of remitting case to FTT

Written by
Asad Ali Khan
Date of Publication:
09 January 2023

AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 (18 November 2022)

In this deportation case, Underhill, Nicola Davies and Stuart-Smith LJJ held that where, on an appeal from the First-tier Tribunal (FTT), the Upper Tribunal (UT) found that where the FTT's decision involved an error of law, it would normally re-make the decision instead of remitting it to the FTT, unless it was satisfied that the error had deprived a party of a fair hearing before the FTT. Where the UT was so satisfied, it would normally remit the decision to the FTT. If the UT chose instead to re-make the decision itself, it would have to give cogent reasons for doing so. "AEB" appealed against a decision of the UT upholding a deportation order made by the respondent SSHD. The appellant was a Nigerian national who had been in the UK for 30 years and who was separated from his partner but helped to care for their three children, all of whom had significant disabilities and special needs. In 2017, he was convicted of dishonesty and sentenced to 4 years' imprisonment. As a result, the SSHD served a deportation decision under the automatic deportation provision set out in section 32 of the UK Borders Act 2007. AEB appealed to the FTT relying on article 8 of the ECHR, which brought into play the provisions of Part 5A of the Nationality, Immigration and Asylum Act 2002. But the FTT dismissed his appeal and UT set aside that dismissal on the basis that the FTT had made errors of law which had deprived AEB of a fair hearing.

But rather than remitting the decision to the FTT, it exercised its discretion under section 12(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 to re-make the decision and it upheld the deportation order, making the finding that there were no "very compelling circumstances" within the meaning of section 117C(6) of the 2002 Act so as to outweigh the public interest in deportation. AEB submitted that the UT had (i) misdirected itself as to the principles to be applied when deciding whether to retain or remit a decision, and should have remitted the decision and (2) erred in its approach to what amounted to "very compelling circumstances". The Court of Appeal allowed the appeal and held as follows. As to the general principles on re-making or remitting, the court observed that the UT's discretion under section 12(b)(ii) to re-make or remit a decision was the subject of a series of Practice Directions and Practice Statements. The Practice Statements aimed to provide guidance and encourage consistency and they did not lay down immutable rules, establish propositions of law or fetter the UT's broad discretion. The basic distinction between the Practice Directions and the Practice Statements is that the Practice Directions tend to set out steps to be taken by the parties while the Practice Statements tend to refer to what the FTT and the UT themselves will do.

Rather, they tried to reflect what was likely to happen in various circumstances as held in Brook v Reed [2011] EWCA Civ 331. In JA (Ghana) v SSHD [2015] EWCA Civ 1031, Sir Ernest Ryder, with whom Arden and Briggs LJJ agreed, was "troubled by the submission that the UT judge was required to consider the criteria in [7.2] of the Practice Statement and that by failing to do so he was guilty of a procedural irregularity sufficient to amount to an error of law ie the process amounted to an unfair hearing. That is a bold submission when shorn of its substantive context." With that in mind, Stuart-Smith LJ held that:

15. I respectfully endorse the observations of Richards J in Brook v Reed and of the Court of Appeal in JA (Ghana). The purpose of a Practice Statement such as those with which we are concerned is to provide guidance, both to Tribunal Judges and to Tribunal users, so as to encourage consistency of approach and understanding. The terms of paragraph 7.2 do not seek to lay down immutable rules; still less do they seek to establish propositions of law or to fetter the broad discretion afforded to the UT by section 12 of the 2007 Act. But they do seek to reflect what is "likely" to happen in some circumstances and not in others. And, as the SPT observed in JA (Ghana), the general obligation upon a Judge exercising a discretion to give adequate reasons for the course they decide to adopt is all the more important when they are proposing to adopt a course that departs from the "normal" approach.

It was said by the UT in MM (unfairness) Sudan v SSHD [2014] UKUT 00105 (IAC):

26. We consider that, as a fairly strong general rule, where a first instance decision is set aside on the basis of an error of law involving the deprivation of the Appellant's right to a fair hearing, the appropriate course will be to remit to a newly constituted [FTT] for a fresh hearing. This is so because the common law right to a fair hearing is generally considered to rank as a right of constitutional importance and it is preferable that the litigant's statutory right of appeal to the [UT] should be triggered only where the former right has been fully enjoyed.

Use of the term "a fairly strong general rule" in the above authority was not suggesting the existence of a rule of law or procedure rather than an observation on what would be the usual outcome. The word "presumption" should only be used with extreme care, and qualitative expressions such as "strong presumption" needed to be avoided wherever possible. Accordingly, where an error of law had deprived a party of a fair hearing below, the normal procedure was and should be to remit. The appeal was allowed and the case was remitted accordingly.

Read together, paragraph 3.1 of the current Practice Direction and paragraph 7.2(a) of the current Practice Statement set out a general assumption that where the UT found that an FTT decision involved an error of law, it would re-make the decision instead of remitting it, unless it was satisfied that the error had deprived a party of a fair hearing before the FTT. Where it was so satisfied, it would normally remit the decision to the FTT and if it chose instead to re-make the decision, it had to give cogent reasons for doing so.

And as to the UT's decision to re-make rather than remit it, the UT had departed from the guidance in paragraph 7.2(a) of the Practice Statement without giving sufficient reasons. The reasons the UT gave focused on paragraph 7.2(b), which provided that a decision was likely to be remitted where the nature or extent of any judicial fact-finding necessary to re-make the decision made that appropriate.

The UT had shown no good reason for departing from the normal course of remitting a decision that was flawed by an error of law which had rendered the hearing below unfair. The failure to remit was a material error which deprived the appellant AEB of the normal two-tier system whereby he could—if necessary—appeal to the UT against the FTT's re-made decision.

In other words, it deprived him of the benefit of a first appeal, which meant that he had to meet the criteria for a second appeal. Affording access to the two-tier system was one of the aims underlying paragraph 7.2(a), and so the AEB's first ground of appeal succeeded. As to the existence of "very compelling circumstances" AEB submitted, first of all, that because his four-year sentence was at the low/bottom of the bracket of sentences which rendered an offender subject to automatic deportation, it would take relatively little to find "very compelling circumstances" for the purposes of section 117C(6).

However, although a sentence of less than four years would not trigger the operation of section 117C(6), it did not naturally follow that a four-year sentence should be treated as demonstrating minimum or borderline seriousness. His second submission was that, in failing to regard the prospect of his being separated from his children as "very compelling circumstances", the UT had failed to give proper weight to the fact that he had three children, and not just one. Overall, in determining whether there were very compelling circumstances which outweighed the public interest in deportation, the UT had to take account of the offender's family situation and the best interests of any children.

The Court of Appeal followed HA (Iraq) v SSHD [2020] EWCA Civ 1176, see here and Hesham Ali v SSHD [2016] UKSC 60 and held that in case, it had to take account of the effect on three children, not just one, but there was nothing to suggest that it had not done so or that it had conducted the weighing exercise in a way that disclosed a material error of law. Indeed, it expressly stated that it had considered the totality of the children's needs as well as their needs individually. Accordingly, the second ground of appeal failed and Stuart-Smith LJ held:

58. In the light of these authorities, I would accept that the effect on three children as opposed to one would be a material factor for the UT Judge to have considered in the present case. However, I am quite unable to accept that he did not do so, or that he applied the relevant principles in a manner that discloses a material error of law. At the outset, he identified that the core issues included "the impact of the individual complexity and seriousness of the children's needs, and the fact that all three children had such needs"His summary of the relevant principles … is a suitable summary that discloses no error of law. Of most significance for Ground 2 is his acceptance that "every assessment of 'unduly harsh' must have as its focus the effects on the specific relevant children taking into account their best interests"; and that, in the context of the public interest "the focus remains on the effects on the children" with his recognition that the effects will be "highly fact-specific, particularly as they centre on the effects on individual children." … It is therefore clear beyond argument that, at least when identifying the principles that he intended to apply, the Judge had fully in mind the fact-sensitive nature of the enquiry into the effects on the individual children.

Key in this ruling is the principle that where the UT finds that where the FTT's decision involved an error of law, it will normally re-make the decision instead of remitting it to the FTT, unless it was satisfied that the error had deprived a party of a fair hearing before the FTT. Where the UT is so satisfied, it will normally remit the decision to the FTT.