Case No. UKUT-00517-(IAC)

[2015] EWCA Civ 251 does not rule conclusively that the First-tier Tribunal (and, on appeal, the Upper Tribunal) has no jurisdiction to consider a ground of appeal which canvasses the frustration of a substantive legitimate expectation, bearing in mind the “otherwise not in accordance with the law” statutory ground of appeal enshrined in section 84 of the Nationality, Immigration and Asylum Act 2002. DECISION AND DIRECTIONS INTRODUCTION 1. In order to comprehend this decision it is necessary to outline the somewhat chequered and protracted history of this appeal. In summary: (i) The Appellant, who is a national of Jamaica, was the subject of a decision by the Secretary of State for the Home Department (the “ Secretary of State ”), dated 02 September 2011, to make a deportation order against him qua foreign criminal under section 32 of the UK Borders Act 2007. Simultaneously, his asylum claim was refused. (ii) By its determination dated 10 February 2012, the First-tier Tribunal (the “ FtT ”) dismissed the Appellant’s ensuing appeal. (iii) Permission to appeal having been granted, there were several listings before the Upper Tribunal and, during this phase, the West Midlands Police (“ WMP ”) became involved as an interested party. This arose out of the Appellant’s quest to acquire certain documents and information from this source. This yielded certain evidence, including the oral testimony of two police officers. (iv) This rather sluggish phase culminated in an order of the Upper Tribunal dated 28 January 2015 setting aside the decision of the FtT for error of law and making further directions. (v) This further interlocutory hearing was conducted on 16 July 2015. APPEAL TO THE FtT 2. The Appellant is a national of Jamaica, aged 42 years. He was lawfully present in the United Kingdom between 2001 and 2003, when his leave to remain expired. This appeal originates in deportation action taken against him by the Secretary of State, in September 2011, precipitated by the Appellant’s convictions in respect of certain drugs offences. Previously, in response to the customary “minded to deport” notification, the Appellant had made a human rights and asylum claim. This is described in the ensuing decision notice in these terms: “ Your claim for asylum is based upon your fear that if returned you would face mistreatment due to being a drugs informant in the UK, which you claim is part of a social group in Jamaica. Your claim for humanitarian protection is based upon your fear that you would face unlawful killing if returned to Jamaica …. You claim to have acted as an informant from 2006 until 2008, giving information against members of [a named group]. You met [A&B] whom you previously knew in Jamaica …………… who asked you to be a drugs courier for them. You went to the police in the UK for help and gave them information. This led to [CD] being convicted and removed from the UK. You provided information about other individuals too …… On the last case you worked on you were set up by the drug gang as they suspected you of being a mole …….. The gang then knew you had been acting as an informant. You were threatened by members of the gang ….. [who] …. got into your house on one occasion …. they then beat and raped [your partner] ….. [later] the gang found you and took you to a location where they tortured you for three days …. They told you that you had to pay off your debt for acting as a police informer by carrying drugs … You state that you would be found if returned to Jamaica as it is a small island and [X and Y] run drugs from the airport and nothing would get past them. You state that you could not approach the police in Jamaica as they would not help you … The people you informed on are either in Jamaica or travel back to Jamaica. ” All of the ensuing litigation developments have unfolded against this background. 3. The Secretary of State’s decision has the following principal ingredients: (a) Drug informants who return to Jamaica do not form part of a specific social group, lacking an immutable social characteristic. (b) In any event, there is adequate state protection through the Jamaican Government’s Witness Protection Scheme (“ WPS ”). (c) The Appellant’s bare assertion that protection would not be available from the Jamaican police was disbelieved. (d) The Appellant’s claim to have acted as a police informant in the United Kingdom was not considered credible. (e) He could safely relocate in Jamaica in any event. (f) The Appellant had secured atonement, having acted as a drug courier in response to and in compliance with the threat alleged by him, there was no evidence that he was of any enduring interest to those whom he claims to fear. His claims for humanitarian protection and discretionary leave were also refused. 4. There are striking features of the appeal process conducted by the FtT: the reception of evidence in the form of a letter from the WMP which was undisclosed to any party; the receipt of oral evidence from a WMP police officer in camera; and the receipt of undisclosed evidence from a second police officer in the parties’ absence. Acting on the police evidence, the Tribunal found that the Appellant was registered as a covert human intelligence source (“ CHIS ”) by the WMP for a period of 15 months in 2006/2007, receiving certain financial rewards in consideration of the provision of information. It made a further finding that the Appellant’s claims about the quantity of information provided by him to the WMP had been “ greatly exaggerated ”. This is followed by further findings: “ … We accept the police version as they are under a duty to keep accurate records. We note that there is no suggestion on police records that the Appellant would have been known as an informant. We find that the Appellant, if he wishes to, can keep that former relationship with the police private …. There is no suggestion that his involvement with the significant crime for which he was convicted was in any way directly connected to his former role as a police informant. We find that there is no evidence that the people with whom he conspired to supply Class A drugs were persons on whom he had informed. ” The Appellant’s claim that he was known to be a police informant by a major Jamaican drugs dealer was disbelieved. Ditto his claim about the attack on his partner. The incongruity highlighted in the Secretary of State’s decision regarding the Appellant’s willingness to reside in the United Kingdom but not Jamaica was adopted. So too was the Secretary of State’s assessment of the availability of state protection in Jamaica. The Tribunal also accepted the Secretary of State’s assessment of the availability of internal relocation, considering the Appellant’s asserted fear of prosecution to be “ localised to his home area ”. His appeal was rejected on all grounds accordingly. SUBSEQUENT PROCEEDINGS 5. The subsequent course and progress of the Appellant’s appeal to this Tribunal are charted in [1] above. At this juncture we draw attention to the grant of permission to appeal to the FtT which contains the following material passages: “ The determination makes no mention that another police officer gave evidence …. The officer was unnamed and remained anonymous throughout the hearing. The evidence of this unnamed officer was given only to the panel in the absence of the parties …. [and] has therefore been hidden from the Appellant …. [who] was denied any opportunity of cross examining that unnamed witness. Additionally, when [the identified police witness] gave evidence it was in the form of a statement which was read by the panel in private and was not shown to either of the parties. ” In summary, permission to appeal was granted on account of the procedurally unfair process whereby the FtT conducted the appeal and made its decision. 6. We have also paid attention to the “ Further Grounds of Appeal ” document. It would appear that this was generated following a change of legal representation. This advances three additional complaints: (a) The FtT erred in law in accepting unsubstantiated assertions on behalf of the Secretary of State regarding convictions of the Appellant in 2005/2006. (b) The FtT further erred in law in failing to engage with an important aspect of the Appellant’s case, namely that “ … at a meeting with his handler and an immigration official, he had been promised that leave to remain would be granted to him and his family ”, the Secretary of State having failed to respond to this assertion. (c) The FtT committed the further error of law of finding that the WPP would be available to the Appellant in Jamaica, as this does not extend to police informants in the United Kingdom and provides inadequate protection in any event. 7. At a hearing on 28 January 2015 the Upper Tribunal set aside the decision of the FtT. It did so by concession on behalf of the Secretary of State. The FtT’s decision was set aside on the basis of the grant of permission to appeal rehearsed in [5] above. It was determined that the case would be remitted to a differently constituted FtT for fresh hearing. However, the terms of the remittal were not finalised as the Appellant wished to rely upon more extensive grounds. This resulted in the subsequent provision of a submission entitled “Permission to Advance Additional Grounds”. The proposed further grounds