Case No. UKUT-00156-(IAC)

[2018] EWCA Civ 1413: “53. …xiv) Mr Gill accepted that the First-tier Tribunal not only has the jurisdiction toconsider whether the proceedings before it are compliant with the procedural obligations of article 8, but the tribunal has an obligation to ensure compliance; and he accepted that the tribunal is the optimal forum for determining such an issue. I firmly agree. The tribunal has advantages over this court – and, indeed, the Administrative Court – in terms of constitution, experience and facilities; and, in these circumstances, the specialist tribunal will be able to look at the details required to ensure an effective appeal (see Kiarie & Byndloss at [104] per Lord Carnwath, and R (W2 and IA) v Secretary of State for the Home Department [2017] EWCA Civ 2146 at [86]-[88] per Beatson LJ in the parallel context of the Special Immigration Appeals Commission). If the tribunal in this case, at any time, considers that the Applicant’s appeal cannot be dealt with effectively out-of-country – or cannot be dealt with effectively out-of-country within a reasonable time – then it can and must say so. The guidance in AJ (Nigeria) suggests that, in these circumstances, a direction to that effect should be given by the tribunal, and the appeal should be adjourned, presumably to allow the Secretary of State to consider his position and for the Applicant to make such application to the High Court as he considers appropriate and necessary. In circumstances in which the tribunal is due to hold a case management conference in the Applicant’s appeal today, that all appears to me to be a powerful reason for not granting now the interim relief the Applicant seeks.”23.It is against this important background that the applicant’s Article 8 procedural submissions fall to be considered. As Mr Kovats submits, the process needs to be considered as a whole. Although Mr Kovats rightly did not submit that there cannot be cases where it is apparent that section 94B certification should not be made or maintained by the respondent, irrespective of the position of the First-tier Tribunal, it is, as a matter of principle, wrong to rely on the hindsight afforded by the Upper Tribunal’s decision of 1 April 2019 that the First-tier Tribunal had erred in law, in order to demonstrate a legal failing on the part of the respondent, in maintaining section 94B certificate. The matter which caused the Upper Tribunal to set aside the First-tier Tribunal’s decision involved a refusal on the part of R’s mother to engage with those concerned to investigate, and report on, the applicant’s relationship with R. That was not something which was evident at the time of the applicant’s removal (when R was not even born) or for some time thereafter.24.At paragraph 32 of the applicant’s skeleton argument, it is contended that it was “pleaded right from the outset in this claim” that there were procedural and legal obstacles preventing the applicant from obtaining evidence from an independent social worker as to the impact on the children. Paragraph 84(3) of the original grounds of judicial review, however, merely make the generic point – common in section 94B cases – that it would not be possible for a social worker “to be able to interview/assess the applicant face-to-face (or, in the case of the ISW, to undertake an observation/assessment of the applicant and his minor children interacting when physically in each other’s [presence] together)”. This is, however, significantly different from the reason why the Upper Tribunal found an error of law in the decision of the First-tier Tribunal. As explained at paragraph 59 of the Upper Tribunal’s decision of May 2019, it had become apparent that the mother of the children was refusing to allow a social worker to see them, in order to prepare a report using connection with the appeal. In order to remedy that, a specific issue order would be required; but the evidence showed that such an application made from Jamaica would have an unrealistic prospect of success in England and Wales. The point was, accordingly, that, so long as he remained in Jamaica, the applicant would be unlikely to be able to get a social work report based on the social worker meeting the children, let alone based the applicant being physically present with them.25.There is no doubt that, for present purposes, the European Court of Human Rights views Contracting States as a single entity. The court does not distinguish between the State’s executive and its judiciary, when determining whether the State has breached an applicant’s ECHR rights. Thus, for example, in