Case No. UKUT-00517-(IAC)

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 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