Case No. UKUT-00330-(IAC)

[2014] EWCA Civ 1292 at [36] - [39]. (ii) In cases where the public interest favouring deportation of an immigrant is potent and pressing, even egregious and unjustified delay on the part of the Secretary of State in the underlying decision making process is unlikely to tip the balance in the immigrant’s favour in the proportionality exercise under Article 8(2) ECHR. DECISION Preamble The provisions of the Nationality, Immigration and Asylum Act 2002 and the Immigration Rules are assembled in Appendix 1 and Appendix 2 to this judgment. Introduction 1. It is a regrettable truism that from time to time one encounters an appeal which has been in the Tribunal system for an indefensibly lengthy period. Sadly, the present case is a paradigm illustration of this thankfully rare phenomenon. It provides an important reminder of the overarching importance of expeditious justice, the ever present need for robust case management and the avoidance of certain practices which are antithetical to both. Chronology 2. The chronology speaks for itself: (a) The impugned decision of the Secretary of State, whereby the application of the Appellant for asylum and his human rights claim were refused, in the context of a deportation decision, is dated 04 September 2012. (b) The First-tier Tribunal (the “ FtT ”) heard the appeal on 09 May 2013 and promulgated their decision some two weeks later. The appeal was dismissed. (c) Prior to the hearing on 09 May 2013, there had been a total of four case management review (“ CMR ”) hearings conducted by FtT Judges, spanning the period October 2012 to March 2013. On each occasion the decision taken was that the hearing of the appeal should be deferred having regard to ongoing Family Court proceedings involving the Appellant. (d) At the fourth of these CMRs the appeal was listed to be heard on 09 May 2013. This hearing did not result in the determination of the appeal. Rather, it yielded a somewhat unorthodox judicial decision purporting to require the Secretary of State to grant the Appellant a period of discretionary leave pending completion of the Family Court proceedings. The FtT has no power to make such an order. (e) The Secretary of State appealed against this decision. The Upper Tribunal heard the appeal on 21 August 2013 and, on 27 September 2013, it set aside the decision of the FtT and remitted the appeal to that forum, giving rise to the substantive dismissal of the Appellant’s appeal by a decision of the FtT promulgated on 26 November 2013 ( supra ). (f) Next, the Appellant’s application for permission to appeal, made timeously, was refused by a Judge of the FtT. (g) By its decision dated 11 March 2014 the Upper Tribunal granted permission to appeal. Pausing, at this stage the appeal proceedings (in their totality) were of some 18 months’ vintage. Regrettably, three further years were to elapse until the listing of the appeal before Deputy Upper Tribunal Judge Mandalia and me. (h) The initial listing of the appeal before the Upper Tribunal was on 02 October 2014. The appeal was delisted in somewhat opaque circumstances, one feature of which was that the Appellant and his counsel attended the relevant venue on the scheduled date only to learn of this development. (i) The manifestly unjustifiable delay which has characterized this appeal throughout continued. The appeal was not relisted until 30 April 2015. By its decision promulgated on 29 May 2015 the Upper Tribunal set aside the decision of the FtT. The Upper Tribunal did not proceed to remake the decision. No explanation for this is provided in its decision. It directed that the appeal be relisted in the Upper Tribunal “ on the next available date ”. It would appear that no proper regard was had to either the Upper Tribunal Practice Directions relating to the remaking of FtT decisions or the vintage of the appeal which, by this stage, was approaching its third anniversary. (j) The appeal was next listed in the Upper Tribunal on 07 September 2015. A hearing ensued. However, this did not give rise to a judicial decision. Instead, on 01 October 2015 written directions were issued requiring the parties’ representatives to make further written submissions relating to the significance of the decision in Bah (EO-Turkey-Liability to Deport) [2012] UKUT 00196 (IAC) (hereinafter “ Bah ”). Pausing again, some 1 ½ years later, the appeal remains uncompleted, for reasons which will emerge below. (k) Both parties’ representatives duly complied with the time limit (29 October 2015) for the provision of further submissions. The terms of the final paragraph of the Upper Tribunal’s directions suggest that, following receipt, the appeal would be decided without further hearing. The next development suggests that an assessment that a further hearing would be convened. (l) By further Directions dated 12 November 2015 it was directed that the appeal “ … will be set down for oral hearing, submissions only on the first available date ” and made a further direction regarding possible fresh evidence under Rule 15(2A). [Emphasis added]. (m) On 15 December 2015 the parties’ representatives were notified of a resumed hearing to proceed on 22 January 2016. However, by Notice dated 07 January 2016, the hearing was postponed for reasons which are unclear. (n) This was repeated in respect of a rescheduled hearing date of 15 February 2016. (o) At this stage, the chronology struggles and staggers on to 14 April 2016 when the appeal was relisted. A hearing ensued. However, once again, this did not yield a decision. Rather, the outcome was a judicially devised and signed “Adjournment and Directions”, which included: “ I adjourn this hearing part heard to be relisted before me on the first available date after 07 July 2016. ” The reason for this course was recorded as “…………. the potential unlawfulness of a decision taken to remove the Appellant under section 10 of the Immigration and Asylum Act 1993 dated 13 June 2003 …. ” [my emphasis], coupled with a desire on the part of the Secretary of State “ to seek further instructions ”. (p) The parties were directed to provide written submissions as to the lawfulness of the June 2003 removal decision and a further hearing was to be reconvened before the same Judge after three months. (q) The Appellant’s representatives then made further representations to the Secretary of State. (r) The Secretary of State failed to comply with the aforementioned directions. 3. The appeal was relisted for hearing on 13 October 2016. The decision made on that date records that counsel for the Appellant applied for an adjournment on the ground that (a) the Judge who had adjourned the appeal on 14 April 2016 had directed that it be relisted before them, (b) the Home Office Presenting Officer claimed not to have seen the directions made arising out of the aborted hearing on 14 April 2016 (notwithstanding that they had been pronounced orally in the presence of the parties) and (c) there were ongoing Family Court proceedings relating to the Appellant’s daughter (then aged 14) which had given rise to an order dated 24 August 2016 and were progressing to a “contact” hearing listed to be heard on 24 October 2016. The assigned Deputy Judge of the Upper Tribunal stated: “ In these circumstances it is only right and proper that this matter be adjourned. ” and directed that the Upper Tribunal directions of 14 April 2016 “ are given full effect .” The Deputy Judge further directed that the relisting would give effect to the convenience of the Appellant’s Counsel. 4. On 17 January 2017 there was a CMR conducted by the medium of telephone. The outcome was the relisting of this appeal for hearing on 17 March 2017. 5. The appeal was eventually relisted before this panel of Judges on 17 March 2017. Significantly, on this occasion there was no suggestion that the hearing should not proceed on the basis that it was retained exclusively by a particular judge. 6. It is necessary to mention some even more distant dates and events. The sole conviction underpinning the Secretary of State’s deportation decision of September 2012 was a conviction for wounding with intent to do grievous bodily harm dating back to 2001 , generating a 4-year term of imprisonment. This was followed by service of the conventional removal notices on the Appellant, on 13 June 2003, based on his asserted status of illegal entrant. This gave rise to an appeal, resulting in a decision of the FtT promulgated on 11 September 2003. This decision records that the Secretary of State had also , on the same date, decided to refuse to grant the Appellant asylum. This was not a decision on the merits: it was, rather, a decision based on the Appellant’s asserted failure to provide supporting evidence and attend for an interview when requested to do so. The FtT decision of September 2003 records the absence of any conceivable basis for an asylum claim. The only live issue was the Appellant’s case based on Article 8 ECHR. The appeal was dismissed on both asylum and human rights grounds. 7. This was followed by seven years unexplained inertia on the part of the Secretary of State. This somnambulance was disturbed only by a second asylum claim made by the Appellant in November 2010. This followed seven years after his unsuccessful appeal to the FtT in September 2003 against the Secretary of State’s refusal of his first asylum claim. A screening and asylum interview was completed on 30 January 2012. No explanation of the Secretary of State’s failure to interview the Appellant until January 2012 (14 months after his claim) or to determine the Appellant’s second asylum claim until 04 September 2012 has been proffered. At the end of this discrete period of almost two years, the Secretary of State’s decision stated, inter alia : “ Your claim is based on your fear of gang violence. These are not reasons for claiming a well-founded fear of persecution under the [Refugee Convention] …. ” In other words, the claim was quite hopeless. No appeal ensued. Rather, the quite separate decision stimulating the five year appeal documented laboriously above was the Secretary of State’s decision to make a deportation order based on the Appellant’s conviction of the offence of wounding with intent to cause grievous bodily harm made on 20 September 2001 , generating a sentence of four years imprisonment. 8. The completion of this judgment was delayed pending a response by the Appellant’s solicitors to the multiple issues raised by the chronology dated in [2] above. That this discrete phase of delay was confined to a handful of days only is attributable to the commendably quick, thorough and comprehensive response which was made. Having considered the further materials thus provided, it is clear that the Appellant’s representatives have not been responsible for any of the successive delays noted above. Lessons 9. The lessons to be learned are the following: (i) Experience has frequently shown that “reserving to self” orders/directions of Upper Tribunal Judges simply do not work efficiently in practice. These are not readily accommodated by this Chamber’s work allocation systems and practices. (ii) A part-heard appeal is to be distinguished from one in which a hearing has not taken place at all. That is not to say that there may not be good reason for a “reserve to oneself” order/direction in either case. However, there is a very broad spectrum of part (or incomplete) hearings, many of which do not require a “reserve to self” direction. Where a Judge considers that this course is appropriate, it must always be followed by proactive and assiduous post-direction monitoring. (iii) “First available date” relisting directions are understandable. However, in practice, they rarely deliver efficiency or expedition. Best practice dictates that a concrete rearranged hearing date be specified in directions of this kind. (iv) Strict and rigorous case management timetables are required in every case. (v) A claim by a representative at a resumed hearing, many months later, that previous directions have not been seen might be true: however, it must be vigorously probed, particularly in circumstances where the earlier directions were pronounced orally in the presence of both parties’ representatives. (vi) It is entirely unacceptable for a Tribunal to be informed on a hearing date that there are/have been relevant proceedings in some other judicial forum having a possible impact upon the Tribunal proceedings. A failure to proactively and timeously bring this to the attention of the Tribunal will require a compelling explanation. (vii) Tribunals do not conduct rolling appeals. An adjournment of specified and brief proportions may be unavoidable from time to time. However, the guillotine will fall at an appropriate stage as soon as it appears that the overarching values of expedition and finality are being unacceptably threatened, the more so where there are indications of misuse (or abuse) of process. (viii) The duty of co-operation with the Tribunal imposed upon representatives by the overriding objective cannot be over - emphasised. Determining this Appeal 10. It is convenient at this point to reproduce [19] of this Tribunal’s rather elderly error of law decision: “ The panel did not take into account in assessing proportionality in respect of Article 8, the respondent’s delay of 10 years in issuing the deportation decision after the appellant’s conviction on 20 September 2001 in determining proportionality. The panel did not have a discussion as to the consequences of the fact that the appellant claimed asylum in January 2000 and his application was refused on 3 August 2001 and his appeal against that decision was dismissed on 11 September 2003. The appellant reapplied for asylum on 10 November 2010 and his interview did not take place until 30 January 2012. If the panel had taken the respondent’s inordinate and unexplained delay into account, they might have possibly reached a different decision.” This sole basis upon which the decision of the FtT was set aside was the Judge’s flawed Article 8 proportionality assessment. 11. The most egregious of the multiple incremental discrete periods of delay in the history of this appeal was stimulated by an earlier assessment that further written argument addressing the implications of the Bah decision should be provided. This occurred some 18 months ago. We juxtapose this with a passage in the decision of the FtT which, having recorded that the Secretary of State had ordered the deportation of the Appellant on the “ conducive to the public good ” ground in section 3(5) of the Immigration Act 1971 (in circumstances where the UK Borders Act 2007 did not apply), stated at [21]: “ We are obliged to consider the section 72 Certificate first. Having received a sentence of four years’ imprisonment, the Appellant is presumed to be a danger to the community and that [sic] his deportation is conducive to the public good. If it were the case that the Appellant is a danger to the community, it is difficult to see how the public good or public interest is served by waiting for over 10 years before consideration is given to the issue of deportation. The delay itself suggests that the presumption may not be appropriate or justified in the Appellant’s case. ” And at [22]: “ The Appellant’s offence is a one-off. He has no prior convictions and no subsequent convictions either. This is not a case where the Appellant has spent time seeking to evade deportation or to delay such proceedings. The delays are entirely of the Home Office’s own making and there is no explanation for them. The Appellant has kept out of trouble without the threat of deportation hanging over him and so his good behavior cannot be said to have been influenced by the need to make a good impression on that score. ” The FtT continued, at [23]: “ The presumption under section 72 can be rebutted. The Appellant’s behaviour against the significant delays, none of his making, in which he has been out of trouble for over 12 years lead us to find that the Appellant is not a danger to the community and that the presumption in his case is inappropriate. ” [Our emphasis.] The FtT continued, at [24]: “ The presumption is that the Appellant’s deportation is in the public interest and under paragraph 398 it is only in exceptional circumstances that the public interest in deportation is outweighed by other factors. In this case the delays are inordinate, unexplained and entirely the fault only of the Home Office .” [Emphasis added.] 12. At this juncture we must identify the legal framework applicable to the remaking of the decision of the FtT which we hereby undertake. By virtue of the decision in YM (Uganda) [2014] EWCA Civ 1292, we must apply the