UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095 (26 June 2019): Floyd and Coulson LJJ have provided an outline of the proper approach that the Upper Tribunal should take as regards immigration judgments made in the First-tier Tribunal. The Court of Appeal also flagged up two unsatisfactory practices or attitudes which have the effect of diminishing the quality and efficiency of justice in immigration and asylum cases, namely the almost endless citation of authority by the parties' representatives and the erroneous belief that every decision is capable of being appealed or at least reviewed with the result that neither side ever regards any decision as final. Their Lordships emphasised that the Upper Tribunal is able to set aside and remake a First-tier Tribunal decision if it makes an error of law, but not if it merely thought that it could make a better decision. The appellant, "UT", who the court referred to as "A", was a Sri Lankan who arrived in the UK in 2000 and claimed asylum but no decision was ever made on his asylum application. His wife, also from Sri Lanka, obtained permanent residence in 2003 and they had two children K and S born in 2001 and 2002 respectively. A was granted indefinite leave to remain in September 2008. His application for British citizenship was however refused in August 2010 because of a driving conviction. His family were granted British citizenship. His 94-year old father, who lived in Sri Lanka, became very ill in 2012 and the family planned to visit him.
By 2012 the couple's children were 10 and nine years old, and had spent all their lives in the UK with their parents. The family held British passports but A did not have a passport at all. He thus asked the Sri Lankan embassy for an emergency travel document (ETD) to enable him to travel to Sri Lanka. For identification purposes he produced a false birth certificate and obtained the ETD to go to Sri Lanka. He then applied for entry clearance to the UK as a returning resident. However, his application was refused because his birth certificate had been discovered to be false and paragraph 320(7A) of the Immigration Rules was engaged. His family returned to the UK but he remained stranded in Sri Lanka. In due course of time FTTJ Plumptre heard his appeal and dismissed it on paragraph 320(7A) but allowed it under article 8 of the ECHR. His cross-appeal on paragraph 320(7A) was dismissed by DUTJ Davey and by the same decision the judge held that FTTJ Plumptre's decision on article 8 was flawed and by way of a further decision he set aside her judgment and substituted a decision that A's article 8 appeal be dismissed.
FTTJ Plumptre's decision on article 8 gave weight to the fact that both children were born and raised in the UK that it would be very difficult for the family to re-establish itself in Sri Lanka when both parents had been in the UK for more than 13 years.
Yet strangely DUTJ Davey sided with the Home Office and labelled the decision "confusing and contradictory". Although the FTT had rightly treated the best interests of the children as a primary consideration, DUTJ Davey was of the view that FTTJ Plumptre had not addressed the significance of the outcome of the appeal on paragraph 370(7A), or indeed the public interest, when assessing proportionality. The issue thus was whether FTTJ Plumptre's decision contained an error of law.
The Home Office complained that the FTT had failed to engage with the totality of the evidence when addressing the question of whether it was reasonable for the family to return to Sri Lanka. It was (incorrectly) submitted that the cases showed that the consideration of article 8 outside the rules had to be holistic and universal and it was insufficient to pick out a couple of factors which pointed in A's favour. The FTT had approached the matter from an incorrect perspective. The ECO's decision was not to remove the family from the UK, or to separate the family from their father. Overall, it was a matter of choice for the rest of the family whether they stayed in the UK or not.
The Court of Appeal
Floyd and Coulson LJJ rejected the idea that the FTT had erred in law and they instead held that DUTJ Davey's decisions were flawed. The court articulated the correct approach to tribunal appeals and then addressed the error of law issue.
(i) Nature and approach to appeals
Making two preliminary observations, Floyd LJ stated that the Upper Tribunal could only set aside a First-tier judgment and remake the decision if there was an error of law. The relevant statutory machinery was laid down in section 11(1) and (2) of the Tribunals, Courts and Enforcement Act 2007 and a right of appeal to the Upper Tribunal was available "on any point of law arising from a decision made by the [FTT] other than an excluded decision". Where an error of law is identified the Upper Tribunal may, under section 12(1) and (2) of the 2007 Act, set aside the FTT's decision and remake the decision. Moreover, the term "error of law" has a wide definition but it has to be more than the appellate tribunal disagreeing with the decision or believing that it could make a better one. The reasons given for finding there to be an error of law really matter and as Lady Hale put it in AH (Sudan) [2007] UKHL 49:
30. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently.
Thus Floyd LJ explained that first of the preliminary observations sufficiently answer the Home Office's submissions inviting the court to "prefer" the decision of DUTJ Davey to that of FTTJ Plumptre. Even if the court were persuaded that the DUTJ Davey's decision was far and away the superior of the two decisions, the answer to the crucial question raised by this appeal, i.e. whether the latter decision involved any error of law, remained unanswered. Moreover, his Lordship kept his second observation "firmly in mind when examining the issue of whether there was in fact any error of law which entitled the Upper tribunal to remake the decision." In the present case, the core issue was whether the decision to refuse entry clearance to A was a justified or a disproportionate interference with the right to respect for family life and the court held that:
21. … This is an issue which faces judges of the specialist immigration tribunals on a daily basis, and the paradigm of one on which appellate courts should not "rush to find misdirections" in their decision-making.
(ii) Error of law
In A's case the provision in section 117B(1) of the Nationality, Immigration and Asylum Act 2002 was important because "The maintenance of effective immigration controls is in the public interest." This was the prime factor placed in the balance against A by the Home Office which said it acted to stop entry being gained by the use of deception. To prevent entry from being obtained on a false basis is in the public interest and "this consideration is entitled to appropriate weight in the balancing exercise, often decisive weight." Applying section 117B(2) and section 117B(3), A spoke English and was his family's breadwinner and was thus not a burden on the state. Moreover, section 117B(4) had no application to his case as he was not in the UK unlawfully while in a relationship with a qualifying partner. He had had indefinite leave to remain since 2008 and the Home Office's failure to process his asylum application meant that it was in no position to argue that his relationship with Mrs A was established when he was in the UK unlawfully. Hence, his family life with his wife was to be given proper weight.
It was true that under section 117B(6) does not apply to re-entry clearance, and only to removal, but it nonetheless shows Parliament's position that a parent's relationship with a qualifying child might not assist an application for leave to remain if that relationship could reasonably be carried on abroad. In the present case the question boiled down to whether it is reasonable to expect the children to join their father in Sri Lanka, this was the approach of the Supreme Court in KO (Nigeria) [2018] UKSC 53 (discussed here) and what it is reasonable for a qualifying child to do does not involve a consideration of the public interest, but needs to be decided in the context of where the parents are expected to be. Floyd LJ said that the best interests of the children were obviously a distinct, indeed, primary consideration. As to whether FTTJ Plumptre lost sight of her finding that A had knowingly used a false document to obtain his entry clearance, and the public interest, when conducting her proportionality assessment under article 8, Floyd LJ held that:
25. … I think it would be most unfair to the judge to assume that this was so. The judge spent the first part of her decision examining, in painstaking detail, the case under paragraph 320(7A) and reaching very clear conclusions on it.
The court found it "fanciful to suppose" that FTTJ Plumptre overlooked matters pertaining to the public interest and it was the opinion of Floyd LJ that paragraph 320(7A) was "beginning and the end of the reason why A was not allowed back into the UK, where he had already enjoyed indefinite leave to remain." Moreover, DUTJ Davey's decision was quite dubious because he totally failed to identify any contradiction in FTTJ Plumptre's judgment. While her judgment was compressed, it was not erroneous and a need arose to venture beyond general, literary criticism because in Jones [2013] UKSC 19 it was the view of Lord Hope that:
25. … It is well established, as an aspect of tribunal law and practice, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. The appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it.
In R v IAT, ex parte Mahmud Khan [1983] QB 790, a case concerning a Pakistani national who had allegedly married an English prostitute named Cynthia Mitchell in Bradford out of convenience and was made the target of a deportation order, quashing the decision Lord Lane CJ held that the issues which the tribunal is deciding and the basis on which the tribunal reaches its decision may be set out directly or by inference. A tribunal's failure to do this renders the decision liable to being quashed. The reasoning proffered by Lord Lane rested on the principle that a party appearing before a tribunal is entitled to know, either expressly stated by it or inferentially stated, what it is to which the tribunal is addressing its mind. Sometimes this is obvious and sometimes it is not. Lord Lane also pointed out that the appellant is entitled to know the basis of fact on which the conclusion has been reached and "in many cases it may be quite obvious without the necessity of expressly stating it, in others it may not."
Overall DUTJ Davey found fault with FTTJ Plumptre's decision because she (i) had never answered the question, applying the law she had set out, whether or not article 8 was engaged with outside of the rules, and (ii) failed to reach a clear conclusion on the issue of the unreasonableness of A and the children establishing family life in Sri Lanka when they were born here and spent their formative years here and where their mother was a British national as well. The first criticism was in one sense correct but given that DUTJ Davey also found that A's case was of the type that clearly warranted consideration on article 8 outside the rules, the first criticism did not amount to an error of law. Floyd LJ found the second criticism as "a somewhat puzzling way of stating the point of law" because the facts which the DUTJ emphasised were of the type that "would point towards, rather than contradict, unreasonableness." His Lordship found no substance in the DUTJ's criticism and held that FTTJ Plumptre was correct in her analysis that A's use of deception to re-enter the UK was a problem which was not created by his family and it was not reasonable to expect Mrs A and the children to abandon their life in the UK to be with their father in Sri Lanka.
The Home Office was very quick to try to milk the misconceived findings of DUTJ Davey in the Court of Appeal and their counsel (unwisely) attempted to extract mileage out of DUTJ Davey's findings that FTTJ Plumptre to provide (i) adequate reasons when dealing with the children's best interests, (ii) adequate reasons to deal with the issue of public interest, and (iii) adequate reasons to deal with why the decision was disproportionate. None of these complaints came close to amounting to an error of law and Floyd LJ held that FTTJ Plumptre had been "tolerably clear" in her conclusions that refusal of entry clearance was a disproportionate interference with article 8. Not every judge would have held that the appeal should be allowed but that was FTTJ Plumptre's conclusion and Floyd LJ explained that:
31. … There was no error of law revealed by reaching that conclusion, or by failing to give "reasons for reasons".
Although unopposed other attempts to exploit the situation also backfired for Home Office counsel because all his other points, over and above DUTJ Davey's findings, were totally off target and lacked any legal substance. Floyd LJ rejected the submission that the family had the choice to return to Sri Lanka to be with A and said that events need to be "assessed in the real world, and not stripped of their context." Overall, DUTJ Davey had been wrong to indulge in remaking the decision and the court reinstated FTTJ Plumptre's decision and rejected the unattractive strong-arm tactics employed in this appeal by the Home Office and their counsel.
(iii) Twin factors undermining appeals
Coulson LJ added that the present proceedings highlighted two unsatisfactory practices or attitudes of the parties in both tiers of the tribunal that commonly occur in cases before the Court of Appeal. Such behaviour increases the burden on an already over-worked judiciary and "diminish the quality and efficiency of justice in immigration and asylum work."
First of all, the court was very unhappy with the haphazard manner in which the parties' representatives cite almost endless authority which concerns the judges so much that they find it necessary to "be seen to be applying all the relevant dicta that any application of those principles to the particular facts of the case is presented almost as an afterthought." In the present case, FTTJ Plumptre's application of the principles to the facts would have been much clearer if fewer authorities had been cited and the parties did not overwhelm the judge. More analysis of the balancing exercise on the facts that the tribunal was being asked to perform was needed instead. Moreover, the second problem was the prevalence of:
38. … the erroneous belief that every decision, no matter its provenance, nature or form, is always capable of being appealed or at least reviewed, such that neither side ever regards any decision as final.
The court concluded that the appeal before it demonstrated that FTTJ Plumptre's decision to allow A's appeal in 2014 should have been accepted without any further argument and appeal by the Home Office. The upshot was that the twin factors identified by the court operated to overburden the judiciary and undermine the quality and efficiency of justice in immigration and asylum cases.
Comment
Every time the Home Office loses a "controversial" case (for e.g. involving deception or criminality) in the First-tier Tribunal it automatically appeals to the Upper Tribunal without any pause for thought in a completely senseless and stupid way. Of course most immigration judges are only too happy to grant permission to appeal to the government without any hesitation despite the fact that the grounds of appeal are misconceived. From that angle, the Court of Appeal's judgment in this case is a very welcome development and will come in handy because of the clear point made by Floyd and Coulson LJJ that judges must not be overwhelmed by the production of endless authorities and the parties must only mount appeals against tribunal decisions where an error of law arguably exists and not otherwise.
The outcome in this case also serves as a reminder that it is futile to regurgitate, as the government's counsel did, a litany of weak points because most judges find it much more attractive if a party makes only one good legal point rather than throwing the kitchen sink at them. Interestingly, from the details set out in the court's judgment, A's counsel seems to have outwitted her less experienced counterpart by not opposing his reformulations of DUTJ Davey's criticism of FTTJ Plumptre's decision to allow the appeal on article 8. The court was still quite lenient in its criticism of his tactics given that in the past the courts have excoriated counsel acting for foreign criminals by accusing them of arguing cases on the basis of a litany of forensic criticisms of particular findings of the First-tier Tribunal and a very clear example of this can be found in VHR (unmeritorious grounds) [2014] UKUT 367 (IAC).
So once again, despite the positive outcome for A, this judgment shows that the courts are soft on those representing the Home Office and the judiciary applies a different yardstick for conduct when it comes to measuring the behaviour of lawyers who happen to be representing the Home Office. The double standards in that regard are all too apparent.