[2025] UKUT 86 (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 section 4(2)).

There is no right of appeal against 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: section 4(3).

There is also no right of appeal to the Upper Tribunal against a failure by DBS to afford a person a right to make representations, or against any refusal by DBS to extend time for making representations.

If the Upper Tribunal finds that DBS has not made a mistake of law or fact in deciding to include a person on a barred list, or in deciding on a review not to remove a person from the barred list, 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). The Court of Appeal has held that unless the only lawful decision DBS could come to in a case, in the light of the Upper Tribunal’s decision, is removal, the Upper Tribunal must remit the case: AB v DBS [2021] EWCA Civ 1575, [2022] 1 WLR 1002at [72]-[73] per Lewis LJ. 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).

Mistakes of law come in many forms. The classic list is to be found in [9] of Brooke LJ’s judgment in R (Iran) v SSHD [2005] EWCA Civ 982 as follows:-

i)

Making perverse or irrational findings on a matter or matters that were material to the outcome (“material matters”);

ii)

Failing to give reasons or any adequate reasons for findings on material matters;

iii)

Failing to take into account and/or resolve conflicts of fact or opinion on material matters;

iv)

Giving weight to immaterial matters;

v)

Making a material misdirection of law on any material matter;

vi)

Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;

vii)

Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.

A mistake of law also includes making a decision to include a person on 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). Where proportionality is raised as a ground of appeal, it is for the Upper Tribunal to decide for itself, giving appropriate weight to DBS’s view as the primary decision-maker, whether the decision to bar is proportionate: see KS v DBS [2025] UKUT 045 (AAC).

As will be noted from the list in R (Iran) above, there are ways in which a mistake of fact may amount to an error of law, but in an appeal under section 4 of the SVGA 2006 the Upper Tribunal does not need to concern itself with where that sometimes slippery line is crossed because the statute gives the Tribunal jurisdiction over mistakes of fact whether or not they would amount to errors of law. Case law has established that a mistake of fact in this context is a finding of fact that is, on the balance of probabilities, wrong in the light of any evidence that was available to 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, [2024] 1 WLR 4033 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).