may be
summarised as follows: (i)
The Secretary of State’s assessment that the police would not agree to engaging the Appellant as an informant without first investigating the background is flawed. (ii)
“ Secondly, the Home Office together with the law enforcement agencies responsible for engaging the Appellant as a CHIS owed him a pre-existing duty of care, by reason of his status, for his well being and safety ….. [which] incorporates an obligation not to send him back to Jamaica …
This duty of care is consistent with the duty owed by the Home Office to the Appellant under Articles 2, 3 and 8 ECHR ”. (iii)
The enforced return of the Appellant would frustrate a substantive legitimate expectation generated by the promise made to him that in consideration of acting as an informant he “ .. would be provided leave to remain in the UK indefinitely or lawfully ”. (iv)
The proposed enforced return of the Appellant to Jamaica without first conducting a proper risk assessment breaches his rights under Articles 2, 3 and 8 ECHR. (v)
The application of sections 117A – 117C of the Nationality, Immigration and Asylum Act 2002 (“ the 2002 Act ”) militates against the Appellant’s deportation. (vi)
The deportation order is in breach of the Secretary of State’s duties under section 55 of the Borders, Citizenship and Immigration Act 2009 (the “ 2009 Act ”). 8. By section 82(3A) (a) and (b) of the Nationality, Immigration and Asylum Act 2002 a decision that section 32(5) of the UK Borders Act 2007 (the “ 2007 Act”) applies is an appealable immigration decision. Under section 84(1) the permitted grounds of appeal include: “ (c)
that the decision is unlawful under section 6 of the Human Rights Act 1998 …
(e)
that the decision is otherwise not in accordance with the law …
[and]
(g)
that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights.”
9. In [1] of the determination of the FtT, it is recorded that the Appellant’s appeal was against the Secretary of State’s decision dated 02 September 2011 to make a deportation order against him. This is incorrect, as appears from the Secretary of State’s Notice of Decision dated 06 September 2011, bearing the title “Decision that section 32(5) of the UK Borders Act 2007 applies”. Within the text of the latter the Appellant’s asylum claim is considered and rejected. It is clear from the ensuing Notice of Appeal [Form IAFT-1] that the Appellant’s challenge was focused mainly on the asylum refusal aspect. In its “Summary of Decisions”, the FtT stated, inter alia : “ We dismiss the Appellant’s appeal against deportation….
We uphold the section 72 certificate in respect of the asylum claim …. ”
This must be considered in the context of the decision of the Secretary of State adverse to the Appellant against which he was appealing. We consider the correct analysis to be the following: (a) The Appellant was appealing against a decision that section 32(5) of the 2007 Act applies to him. (b) As a result, all of the grounds of appeal listed in section 84(1) and (3) of the 2002 Act were, in principle, available to him. This continues to apply, given that the appeal is to be remitted to the FtT. 10. The next stage in the analysis requires consideration of the Upper Tribunal’s powers. These are contained in section 12 of the Tribunals, Courts and Enforcement Act 2007 (the “ 2007 Act ”). Having already found the decision of the FtT to be vitiated by material error of law, the following provisions apply: “ (2)
The Upper Tribunal - …
(b)
… must either - (i)
remit the case to the First-tier Tribunal with directions for its reconsideration, or (ii)
remake the decision. (3)
In acting under subsection (2)(b)(i), the Upper Tribunal may also -
(a)
direct that the members of the First-tier Tribunal who are chosen to reconsider the case are not to be the same as those who made the decision that has been set aside;
(b)
give procedural directions in connection with the reconsideration of the case by the First-tier Tribunal. ” Having already decided that remittal is appropriate, at this stage we are empowered, upon remittal, to give both “ directions ” and “ procedural directions ” to the FtT. We consider that these are the powers engaged by the Appellant’s application to advance additional grounds of appeal to the FtT. 11. In our judgment, these powers are to be exercised in a manner which promotes the interests of justice and gives effect to the overriding objective. We consider that the legislature has made a conscious decision between “directions” and “procedural directions”. In our view, the former encompass matters such as guidance on the law and the scope of the appeal upon remittal. This is supported by the statement in Sarkar v SSHD
[2014] EWCA Civ 195 that the Upper Tribunal “… has power to give directions which limit the scope of the reconsideration” by the FtT: see [15]. In contrast, “ procedural directions” are clearly directed to matters of procedure, relating to the conduct of the remitted appeal. 12. Having regard to the highly unusual features of this case and given that we find nothing frivolous or vexatious in those additional grounds which are, in principle, viable we propose to exercise our discretion to make directions which will enable the FtT to consider those aspects of the Appellant’s challenge to the Secretary of State’s decision which it has jurisdiction to determine . We give effect to this approach in the following way, with reference to our summary of the six additional grounds which the Appellant wishes to advance in [7] above: (i)
We consider the first proposed additional ground inappropriate for two reasons. First, it does not disclose any arguable material legal defect in the Secretary of State’s decisions. Second, it is overtaken in any event by the FtT’s finding that the Appellant was an informant (albeit in considerably narrower terms than he would wish) and the reality that there is no longer any challenge to this fact on behalf of the Secretary of State. (ii)
We reject the second of the proposed additional grounds for the fundamental reason that the FtT is not empowered to consider and determine a claim by the Appellant that the Secretary of State owed him a duty of care and, in making the impugned decisions, has acted in breach thereof. This is a claim which, in our estimation, can be pursued by the Appellant only by a private law action against the Secretary of State based on torts such as negligence and misfeasance in public office. These lie outwith the jurisdictional remit of the FtT. (iii)
We permit the Appellant to advance his substantive legitimate expectation ground since, in our judgment, it is at least arguable that an immigration decision which frustrates a substantive legitimate expectation is embraced by the “ otherwise not in accordance with the law ” statutory ground of appeal enshrined in section 84(1)(e) of the 2002 Act. In thus deciding we acknowledge the decision of the Court of Appeal in PF (Nigeria) v SSHD
[2015] EWCA Civ 251. It is unnecessary for us to decide whether that decision imposes a blanket prohibition on the canvassing of a substantive legitimate expectation upon appeal to the FtT, restricting such challenge exclusively to an application for judicial review: [32]-[34] of the judgment suggest otherwise. The alternative construction of the Court of Appeal’s decision may be that in that particular case the decision of the FtT could not have erred in law on this ground since this was not one of the Appellant’s original grounds of appeal. We are mindful that the “ otherwise not in accordance with the law ” statutory provision does not feature in the decision of the Court of Appeal. Furthermore, the Secretary of State’s decisions belong to the realm of public law (