[2025] UKUT 029 (AAC)

An appeal to the Upper Tribunal under section 4 of the SVGA 2006 lies only on grounds that DBS has, in deciding to include a person on a list or in refusing to remove a person from a list on review, made a mistake: (a) on any point of law; or (b) in any material finding of fact (cf s 4(2)).

If the Upper Tribunal finds that DBS has not made a mistake of law or fact it must confirm the decision: SVGA 2006, section 4(5). If the Upper Tribunal finds that DBS has made a mistake of law or fact, it must either direct DBS to remove the person from the list or remit the matter to DBS for a new decision: section 4(6). If the Upper Tribunal remits a matter to DBS then the Upper Tribunal may set out any findings of fact which it has made on which DBS must base its new decision and the person must be removed from the list until DBS makes its new decision, unless the Upper Tribunal directs otherwise: section 4(7).

There is no right of appeal against the DBS’s exercise of discretion as to whether it is appropriate to include an individual on a barred list (or to refuse to remove them), since the statute provides that the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact (s 4(3)).

A mistake of fact is a finding of fact that is, on the balance of probabilities, wrong in the light of any evidence that was available to the DBS or is put before the Upper Tribunal; a finding of fact is not wrong merely because the Upper Tribunal would have made different findings, but neither is the Upper Tribunal restricted to considering only whether DBS's findings of fact are reasonable; the Upper Tribunal is entitled to evaluate all the evidence itself to decide whether DBS has made a mistake (see generally PF v DBS [2020] UKUT 256 (AAC), as subsequently approved in DBS v JHB [2023] EWCA Civ 982 at [71]-[89] per Laing LJ, giving the judgment of the Court and DBS v RI [2024] EWCA Civ 95 at [28]-[37] per Bean LJ and at [49]-[51]). A finding of fact may be made by inference (JHB, ibid, [88]), but facts must be distinguished from "value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness [of including the person on the barred list]": AB v DBS [2021] EWCA Civ 1575, [2022] 1 WLR 1002 at [55] per Lewis LJ (giving the judgment of the court).

A mistake of law includes making an error of legal principle, failure to take into account relevant matters, taking into account irrelevant matters, material unfairness and failure to give adequate reasons for a decision. (See generally R (Iran) v SSHD [2005] EWCA Civ 982 at [9]-[11].) On ordinary administrative law principles, accordingly, “an allegation of unreasonableness has to be a Wednesbury rationality challenge, i.e. that the decision is perverse” (Khakh v ISA [2013] EWCA Civ 1341 at [18]).

However, a mistake of law also includes making a decision to include a person a barred list that is disproportionate or otherwise in breach of that individual’s rights under Article 8 of the European Convention on Human Rights (ECHR). In this case, DBS has drawn our attention to three recent decisions of the Upper Tribunal where at first blush it appears that divergent approaches have been taken to the issue of proportionality (KB v DBS [2021] UKUT 325, at [130]-[135], panel chaired by Judge Jones; WW v DBS [2023] UKUT 241 (AAC), at [55], panel chaired by Judge Wikeley; and NV v DBS [2024] UKUT 42, at [38], panel chaired by Judge Wright). A three-judge panel of the Upper Tribunal was accordingly convened earlier this month to consider the proper approach to the question of proportionality in appeals against DBS decisions in the case of KS v DBS (UA-2024-000839-V). It has not, however, been suggested that we should stay consideration of this case pending that decision, and we do not consider it necessary to do so.

Pending the decision in KS, it seems to us (and the parties agree) that we should in this case continue to apply the approach laid down by the Court of Appeal in ISA v SB [2012] EWCA Civ 977, [2013] 1 WLR 308, which was approved and followed by the Court of Appeal in DBS v Harvey [2013] EWCA Civ 180. This was also the approach recently taken by the Upper Tribunal chaired by Judge Brunner KC in MFAG v DBS [2024] UKUT 330 (AAC) at [24]-[27] (also there referring to the decision of the Court of Appeal in Dalston Projects and ors v Secretary of State for Transport [2024] EWCA Civ 172).

Those authorities make clear that the question of whether a decision is disproportionate, and thus incompatible with an individual’s Convention right, is a question for the Upper Tribunal itself to decide. In addressing that question, this Tribunal must give due weight to the views of DBS given its role as the primary statutory decision-maker, a role that is reinforced by the statutory prescription in section 4(3) that the question of whether it is appropriate for someone to be included in a list is not itself a question of fact or law in this context. However, it is ultimately for the Upper Tribunal to determine whether the inclusion of a person on a barred list is or is not proportionate and compatible with their Convention rights in the light of all the evidence that is before us, at least insofar as that evidence relates to circumstances at the time that DBS made its decision.