[2024] UKUT 00066 (IAC)

RR did not attend the hearing, nor was he represented. The panel is still unaware of any explanation for this. We are, however, satisfied that he was given due notice of the time, date and venue of the appeal and in all the circumstances of the case, we were satisfied that, bearing in mind the overriding objective, it would be fair and in the interests of justice to proceed to determine the appeal.

On 21 January 2020, RR was granted indefinite leave to remain under the EUSS. On 13 July 2022 he was sentenced to 2 years imprisonment in respect of acquiring, using, or possessing criminal property an offence with a start date of 12 October 2021. He was at the same time sentenced to a month’s imprisonment in respect of each of two counts of possession of a prohibited weapon, all three sentences to be served concurrently.

On 9 August 2022, the Secretary of State wrote to RR, informing him that she had decided to make a deportation decision against him as a foreign criminal, pursuant to the 1971 Act and the 2007 Act as he had not shown that any of the exceptions set out in section 33 of that Act applied to him. He was also informed of his right of appeal under reg. 6 of the CRA and of the possible grounds of appeal.

In his grounds of appeal, RR, said that the deportation order breached his right to private and family life under article 8 of the Human Rights Convention, and that his deportation is not conducive to the public good.

On 17 October 2022, RR was served with a section 120 notice. On 25 October 2022, his solicitors wrote to the Secretary of State, explaining that he has lived in the United Kingdom since 2005, has a subsisting relationship with his partner who has ILR and that they have two British Citizen children.

RR’s appeal was heard on 8 February 2023. In a decision dated 14 February 2023, the judge set out reg 27 and parts of Schedule 1 to the EEA Regulations and gave a self-direction with respect to article 8 of the Human Rights Convention. At [16] and [17], the judge wrote this:

The judge concluded at [22]:

The Secretary of State sought, and was granted permission to appeal on the grounds that the judge had erred by :

Permission to appeal was granted on 29 March 2023.

As with any appeal, the starting point for any consideration is the decision made. In this case, it is a decision to make a deportation order pursuant to section 5 (1) of the 1971 Act which, by operation of reg. 6 of the CRA Regulations grants a right of appeal on the grounds set out in reg. 8 of those regulations.

The decision is manifestly not a decision under the EEA Regulations, and it is not a refusal of a human rights claim. Although, arguably, the grounds of appeal do raise such a claim, there is no decision on that issue. That said, the human rights issue was raised in response to a section 120 notice, and is thus potentially a new matter. The decision under appeal is not, however, a human rights decision for the purposes of section 113 of the 2002 Act.

Mr Buley had nothing to say about whether the decision in this case involved the making of an error of law but relied on his skeleton argument, arguing that by operation of section 7(1) of the Human Rights Act, the First-tier Tribunal had the jurisdiction to consider the compatibility of the Secretary of State’s actions, and to consider if the actions were unlawful in terms of section 6 of that Act.

Regrettably, we conclude that the judge’s decision in this appeal was fundamentally misconceived. There is no reference to the CRA Regulations, nor any indication why, wrongly, it was thought that the EEA Regulations were relevant given that they had been revoked. Given that the criminal conduct that gave rise to the decision post-dated 31 December 2020, RR could not benefit from the protections offered by article 20 of the WA. Similarly, at best, the raising of human rights issues was a new matter, an issue not addressed, and the correct procedure was not followed; there was no written consent to the issue being raised and so as a matter of law, it could not be considered.

We turn next to section 7 of the Human Rights Act which, materially provides:

RR cannot rely on sub-section (1)(a) because it is restricted to the "appropriate court or tribunal", defined in subsection (2) to mean "such court or tribunal as may be determined in accordance with rules…". The only tribunals upon which section 7(1)(a) jurisdiction has been conferred by rules are the Special Immigration Appeals Commission and the Proscribed Organisations Appeals Commission. No provision has been made for the First-tier Tribunal. 

In R (A) v B [2009] UKSC 12 the Supreme Court addressed that subsection, and how it differs from sub-section 1 (a). Lord Brown held [45]:

It is perhaps surprising that the AIRE Centre’s submissions on section 7 simply do not engage with this decision or R v Kansal, let alone seek to distinguish Supreme Court authority. Section 7(i)(b) operates as a shield, not a sword. There is thus no question of any rights under section 7 being infringed by the CRA.

It follows from this that the decision of the First-tier Tribunal involved the making of an error of law, as the judge applied the wrong law, and failed to identify the relevant legislation under which the appeal could be brought, nor did he identify the relevant ground of appeal. On that basis alone, it must be set aside. Further, there is no arguable basis on which he could have considered whether the deportation decision was a disproportionate interference with Mr RR’s article 8 rights.

Accordingly, we answer the issues raised in RR’s appeal as follows:

We therefore set it aside, and remit the appeal to the FtT as it will be necessary to remake the decision. In doing so, we note Ms Smyth’s request that the human rights claim raised under the section 120 notice should be considered by the First-tier Tribunal.

The three appeals are to be de-linked and will be remade in separate hearings. We therefore set out below separate directions in respect of each appeal.