[2023] UKUT 00163 (IAC)

The Secretary of State contends the FtT materially erred in law by failing to consider whether one or both of HL’s sons could accompany her to India.

This was not the Secretary of State’s case as expressly advanced at the hearing before the FtT. HL’s elder son and his wife attended. They relied upon short witness statements, neither of which addressed their returning to India with HL. Whilst both witnesses gave oral evidence as to their contact with HL in the United Kingdom, neither were cross-examined about their relocating to Goa to provide HL with support. The Secretary of State’s submissions before the FtT addressed the ability of HL to relocate to Goa, with its large Christian population, but no reference was made to one or other of the sons relocating with her. The only express reference to the sons was their ability to keep in touch with their mother from the United Kingdom and to visit her in India.

Before us, Ms. Gilmour relied upon the Secretary of State’s decision letter of 2 June 2021, a document running to fifty-eight paragraphs over fifteen pages, and its reliance at paragraph 10 upon the starred decision of Devaseelan (Second Appeals - ECHR - Extra-Territorial Effect) Sri Lanka* [2002] UKIAT 00702, [2003] Imm AR 1. Though not expressly stated in the decision letter, the Secretary of State’s position before us was that the starting point for the FtT should properly have been that the younger son, now an adult, could return to India with his mother in accordance with the finding of Judge Haria in February 2016.

We observe the Secretary of State’s position in her decision letter was that she did not accept HL to have genuinely converted. There was no consideration of internal relocation and consequently no express consideration was given to whether the sons could relocate to Goa with their mother.

Attendant to the new digital service adopted by the FtT, where an appellant is represented, the requirement that an ‘appeal skeleton argument’ (ASA) be filed and served has been introduced into the appeal process to answer the question - ‘Why does the appellant say that the decision of the respondent is wrong?’ The appellant is required to set out concisely their objections to the Secretary of State’s reasoning in her decision letter, and the answer to the question is to be given with sufficient particularity to enable the Secretary of State to engage in an active, effective, review of the appellant’s case following the submission of the ASA and before the hearing is listed.

The hearing of this matter pre-dates the coming into force of the Senior President of Tribunal’s Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal and the President of the First-tier Tribunal’s Practice Statement No. 1 of 2022, both dated 13 May 2022. The latter confirms in mandatory terms the requirement placed upon a represented appellant to file an ASA, whether the appeal was brought online using MyHMCTS or not. Further, it details the mandatory requirement that the respondent undertake a meaningful review of the appellant’s case, taking into account the ASA and appellant’s bundle, and provide the result of that review. The respondent is to engage with the submissions made and evidence provided, and to particularise the grounds of refusal relied upon. The same meaningful review is to be undertaken in appeals where appellants are unrepresented and have served an ‘appellant’s explanation of case’.

Case management in this matter proceeded under the terms of the now replaced Presidential Practice Statement No.1 of 2021, dated 22 April 2021, in accordance with the model directions located at Annex 1, the latter establishing ‘within fourteen days of the ASA being provided the respondent must undertake a meaningful review of the appellant’s case, taking into account the ASA and appellant’s bundle, providing the result of that review and particularising the grounds of refusal relied upon.’

Consequent to the appellant having failed to file her ASA, Judge of the First-tier Tribunal O’Keefe dispensed with the requirement that the Secretary of State conduct a review by an order dated 15 December 2021.

The appeal was listed before Judge of the First-tier Tribunal Maka as a remote hearing on 11 February 2022. Mr. Hawkins attended on behalf of HL and Ms. Khan, a Presenting Officer, on behalf of the Secretary of State. Judge Maka was concerned as to the appropriateness of a remote hearing being conducted given HL’s vulnerability and attendant safeguarding issues, so converted it into a case management review hearing. Post-hearing the Judge issued directions that identified the outstanding issues between the parties:

There is no express reference within paragraph 6 of the directions to the role of the sons in respect of the viability of HL internally relocating if a risk on return were to be established.

Complying with Judge Maka’s directions, the Secretary of State filed a review on 28 March 2022. This document has provided limited aid to the panel as HL again failed to file an ASA as directed.

A judge sitting in the FtT can properly expect clarity as to the remaining issues between the parties by the date of the substantive hearing of the appeal. The parties are obliged by rule 2(4) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 to help the Tribunal to further the overriding objective, and to cooperate with the Tribunal generally. The parties are under a duty to provide the FtT with relevant information as to the circumstances of the case, and this necessitates constructive engagement with the FtT to permit it to lawfully and properly exercise its role. The parties are therefore required to engage in the process of defining and narrowing the issues in dispute, being mindful of their obligations to the FtT.

It follows that unless a point was one which was Robinson obvious, a judge’s decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules.

We are satisfied, on consideration of events leading up to the hearing before the Judge, that the Secretary of State had not expressly identified as an issue before the FtT that one or both of HL’s sons could accompany her to Goa to ensure that internal relocation to Goa would not be unduly harsh.

Robust and considered decision-making commences with the identification of core and relevant issues. The Judge undertook this step at [16] of his decision, noting paragraph 6 of Judge Maka’s directions. He then proceeded to work through the identified issues, addressing whether a real risk of persecution existed and whether it would be unduly harsh for HL to relocate elsewhere in India, with relocation to Goa being identified by the Secretary of State at the hearing. At no point in time did the Secretary of State’s counsel request that the sons be considered in the internal relocation assessment, nor was HL’s elder son cross-examined on this issue.

The Secretary of State’s ground of appeal evidences a misconception that it is sufficient for a party to be silent upon, or not make an express concession as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. In simple terms, this amounts to a judge being required to search for and consider an ‘obvious’ point, though not so obvious that it was raised by a party at the hearing. The reformed appeal process that now operates in the FtT has been established to ensure that a judge is not required to trawl through the papers in an appeal to identify what issues are to be addressed. The task of the judge is to deal with the issues that the parties have identified. It is trite that the hearing before the FtT is not a lap in the warm-up for a subsequent appeal in which the party’s case can be differently articulated. Parties are expected to advance their cases to their best advantage, permitting a judge to decide between two competing sets of submissions that identify the full extent of the parties’ positions.

Whilst the Devaseelan guidelines establish the starting point in certain appeals, they do not require a judge to consider all issues that previously arose and to decide their relevance to the appeal before them. A duty falls upon the parties to identify their respective cases, consistent with their obligations under rule 2(4) of the 2014 Procedure Rules. Part of that process, in cases where there have been prior decisions, will be for the parties to identify those aspects of earlier decisions which are the starting point for the current appeal and why.

It is important to appreciate that the parties can properly identify their case on appeal to their opponent and to the FtT at various procedural stages, including the filing of the ASA, the undertaking of a meaningful review, at a case management review hearing, at the commencement of a hearing when a judge requests clarification as to outstanding issues and during closing submissions. If by the conclusion of a hearing, a party has not asserted reliance on an issue, a judge can properly proceed on the basis that it is not a matter upon which they are required to reach a decision, though a judge will be aware of the likely lack of procedural and legal knowledge when an appellant represents themselves and of the incumbent requirement to apply anxious scrutiny in a protection appeal. The latter establishes a need for decisions to show by their reasoning that every factor which might tell in favour of an appellant has been properly considered. The application of anxious scrutiny is not an excuse for the failure of a party to identify through the available procedural requirements those issues which are the principal controversial issues in the case. Indeed, to the contrary, the procedural requirements should drive the parties to identify the principal controversial issues which in turn they consider that it is in the interests of their client for the FtT to apply anxious scrutiny in the determination of the case. At the stage of an appeal from the FtT to UTIAC, it should be rare indeed for there to be a point requiring anxious scrutiny (which is not Robinson obvious in the case of an appellant) to have illuded the reformed FtT appeal procedures. The procedures are specifically designed to ensure that the parties identify the issues and they are comprehensively addressed before the FtT, not that proceedings before the IAC are some form of rolling reconsideration by either party of its position.

We consider that there exists a duty upon the parties to identify relevant issues of their own motion. There is no place for hiding a jewel of a submission in the hope that it will purchase favour on appeal. A party that fails to identify an issue before the FtT that it subsequently asserts to have been essential for a judge to consider is unlikely to have a good ground of appeal before UTIAC. None of this is to say that a FtT judge is to entirely lack curiosity in relation to an aspect of a case that the judge requires further assistance with or which the judge considers should be examined as part of the evaluation of the case. Where, as here, a point has not been identified by the parties, and nor is it one which has independently drawn the attention of the judge, it is not an issue which can be appropriately raised for the first time in the context of an appeal to UTIAC.

We conclude that the Secretary of State’s present reliance before us upon an earlier judicial finding that it would be in the interests of HL’s younger son, whilst a minor, to return to live with his mother in India, was not part of her case before the FtT. As confirmed in AZ (error of law: jurisdiction; PTA practice) Iran [2018] UKUT 00245 (IAC), [2018] Imm AR 1418, at [64], in its application to asylum law, the Robinson approach applies only in favour of the individual, who is seeking asylum; not in favour of the Secretary of State, except in an identified exceptions such as exclusion or the statutory presumptions as to criminality. The exceptions do not arise in this matter.

In the circumstances, the respondent’s appeal is dismissed.