Case No. UKUT-00118-(IAC)

(Section 55/Public Interest Interface) [2017] UKUT 14 (IAC). In MK , this Tribunal held that where a breach of section 55(1) is canvassed, the onus rests on the Appellant to establish this on the balance of probabilities and there is no onus on the Secretary of State. This is not contested by these Appellants. 32. In JO Nigeria , this Tribunal, having drawn attention to the twofold duties enshrined in section 55, stated at [13]: “ The question of whether the duties imposed by Section 55 have been duly performed in any given case will inevitably be an intensely fact sensitive and contextual one. In the real world of litigation, the tools available to the court or tribunal considering this question will frequently, as in the present case, be confined to the application or submission made to the Secretary of State and the ultimate letter of decision …. ” Reflecting this Tribunal’s assessment in MK Sierra Leone of where the onus rests, in SS (Nigeria) v SSHD [2013] EWCA Civ 550 Mann J added, at [62]: “ In this appeal Counsel for the appellant placed considerable emphasis on the need for the Tribunal to satisfy itself as to the interests of the child in such a way as suggested an inquisitorial procedure. I agree with Laws LJ that the circumstances in which the Tribunal will require further enquiries to be made, or evidence to be obtained, are likely to be extremely rare. In the vast majority of cases, the Tribunal will expect the relevant interests of the child to be drawn to the attention of the decision maker by the individual concerned. The decision maker would then make such additional enquiries as might appear to him or her to be appropriate. The scope for the Tribunal to require, much less indulge in, further enquiries of its own seems to me to be extremely limited, almost to the extent that I find it hard to imagine when, or how, it could do so. ” 33. This Tribunal examined this issue in a little detail in JO Nigeria ( supra ), at [10] – [13]. It seems to us that given the particular course and contours of the Secretary of State’s decision making processes in these appeals, considered in tandem with the full factual and legal context, the observation of Mann J applies a fortiori in the instant context. While the possibility of a duty of proactive enquiry on the part of the Secretary of State in a given context was also canvassed in JO Nigeria , at [14], this Tribunal declined to determine this discrete issue on a hypothetical basis, through recognizing its potential to arise in a specific, concrete fact sensitive context. We shall explain below why we consider that no such duty arose in any of these cases. 34. The context in which the decisions of the Supreme Court and the Court of Appeal noted in Kaur were made, is of some significance. These were all cases involving decisions having final, permanent or long term consequences, by which the individual was compelled to leave the United Kingdom with no further decision to follow. The context enveloping the Secretary of State’s decisions underlying these appeals is to be contrasted, as demonstrated above. Furthermore, issues of the kind canvassed under the banner of this ground of appeal are to be evaluated realistically and, where appropriate, robustly, as the following passage in