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DISPOSAL
DISPOSAL
If the UT sets aside a decision of the FTT, it must either remit the case to the FTT with directions for its reconsideration or remake the decision – see s. 12(2) of the 2007 Act.
Paragraph 3 of the current Practice Directions of the Immigration and Asylum Chambers of the FTT and the UT, as amended on 18 December 2018, deals with the procedure on appeal to the UT from the FTT. Paragraphs 3.1 and 3.2 state:
‘3.1 Where permission to appeal to the Upper Tribunal has been granted, then, unless and to the extent that they are directed otherwise, for the purposes of preparing for a hearing in the Upper Tribunal the parties should assume that:
the Upper Tribunal will decide whether the making of the decision of the First-tier Tribunal involved the making of an error on a point of law, such that the decision should be set aside under section 12(2)(a) of the 2007 Act;
except as specified in Practice Statement 7.2 (disposal of appeals by Upper Tribunal), the Upper Tribunal will proceed to re-make the decision under section 12(2)(b)(ii), if satisfied that the original decision should be set aside; and
in that event, the Upper Tribunal will consider whether to re-make the decision by reference to the First-tier Tribunal’s findings of fact and any new documentary evidence submitted under UT rule 15(2A) which it is reasonably practicable to adduce for consideration at that hearing.
The parties should be aware that, in the circumstances described in paragraph 3.1(c), the Upper Tribunal will generally expect to proceed, without any further hearing, to re-make the decision, where this can be undertaken without having to hear oral evidence. In certain circumstances, the Upper Tribunal may give directions for the giving of oral evidence at the relevant hearing, where it appears appropriate to do so. Such directions may be given before or at that hearing…’
Section 7 of the Practice Statements of the Immigration and Asylum Chambers of the FTT and the UT, dated 11 June 2018 (‘Practice Statement’), concerns the disposal of appeals in the UT, and states:
‘7.1. Where under section 12(1) of the 2007 Act (proceedings on appeal to the Upper Tribunal) the Upper Tribunal finds that the making of the decision concerned involved the making of an error on a point of law, the Upper Tribunal may set aside the decision and, if it does so, must either remit the case to the First-tier Tribunal under section 12(2)(b)(i) or proceed (in accordance with relevant Practice Directions) to re-make the decision under section 12(2)(b)(ii).
The Upper Tribunal is likely on each such occasion to proceed to remake the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:
the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or
the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
Remaking rather than remitting will nevertheless constitute the normal approach to determining appeals where an error of law is found, even if some further fact finding is necessary.’
The exercise of discretion as to whether to remit a case to the FTT or to retain for remaking in the UT was considered in AEB v SSHD [2022] EWCA Civ 1512. The case concerned a decision of the UT to retain and remake a decision where it had found that the FTT’s refusal to adjourn AEB’s hearing in order to obtain an expert’s report had been procedural unfair. The Secretary of State had conceded that the UT had thereby fallen into error by not following the guidance in Practice Statement 7.2, but argued that the error was immaterial.
The Court of Appeal held at paragraph 45 that unfairness ‘is not just important because it is referred to in paragraph 7.2(a): it is of fundamental importance for the reasons set out by the UT in MM (unfairness) Sudan’. In that case (MM (unfairness) Sudan v SSHD [2014] UKUT 00105 (IAC)), the UT said at paragraph 26:
‘We consider that, as a fairly strong general rule, where a first instance decision is set aside on the basis of an error of law involving the deprivation of the Appellant’s right to a fair hearing, the appropriate course will be to remit to a newly constituted [FtT] for a fresh hearing. This is so because the common law right to a fair hearing is generally considered to rank as a right of constitutional importance and it is preferable that the litigant’s statutory right of appeal to the [UT] should be triggered only where the former right has been fully enjoyed.’
At paragraph 47 of AEB, the Court of Appeal held:
‘It seems to me to be illogical and wrong to accept the rationale for the exception in paragraph 7.2(a) as expressed in MM (unfairness) Sudan and yet to assert that the loss of an uncontaminated two tier decision-making process (with the possibility of a second appeal thereafter) is not a material consequence of the UT’s failure to remit. If, which I do not accept, there is a tension between what was said in JD (Congo) and in MM (unfairness) Sudan, that tension should be resolved in favour of ensuring that parties in general, and AEB in particular, should have had and should now have a two tier process that is fair throughout. That, in my judgment, is the very purpose that lies behind paragraph 7.2(a). It does not mean that all cases where the hearing before the FtT have been unfair will necessarily fall to be remitted: but reasons for not doing so must be both cogent and expressed. Here there are none.’
We had, as noted above, canvassed with the parties their views on our retaining this appeal for remaking were we to find (as we have) that the FTT decision had involved the making of an error of law. We had considered that an appropriate course of action for the following reasons. The appellant appeared in person and has not indicated at any point in proceedings a desire to secure representation. Remittal would have caused further delay when the case required a straightforward application of the law to the evidence on a narrow point i.e. the appellant’s residence in the United Kingdom prior to the specified date. The parties agreed with the proposed course of action. Consequentially, we were of the view that retaining the case in the UT and proceeding directly to remake the decision furthered the overriding objective. However, that view was informed critically by our understanding that there would be only one PCI to be resolved, in relation to which the appellant had been put on notice and with which he had confirmed his ability to deal.
However, when giving his oral evidence, the appellant indicated that he resided in the United Kingdom from November 2020 to April 2021, when he returned to Romania to renew his passport, and did not return to the United Kingdom until January 2023. In these circumstances, Mr Tan accepted that the appellant was resident in the UK on the specified date, but a new issue arose regarding his continuity of residence after that time.
The respondent was therefore now opposing the appeal on a different basis, and indeed was conceding the previously agreed PCI. The issue had now become whether there had, since the relevant period, been an interruption to the appellant’s continuous qualifying period to which none of the exceptions contained within the term’s definition applied. Whilst the issue arose very late, the evidence provided by the appellant raised an obvious concern that a key requirement of Appendix EU may not have been met, and in these circumstances, Mr Tan was entitled to raise the issue.
Although the appellant gave some evidence on the point, and had a theoretical opportunity to answer Mr Tan’s submissions on this new issue, we have concluded that it is necessary to reconsider our initial decision to retain the case for remaking in the UT. Our conclusion that the FTT decision contains an error of law such that it should be set aside was reached on grounds of procedural fairness. As the matter unfolded before us, the appellant had not been on notice until Mr Tan’s submissions that the new point on continuity of residence was going to be taken against him. In all the circumstances including the unusual way in which the now materially different PCI has emerged, we are not satisfied that we can fairly decide the merits of his case in the UT.
Consequently, we have decided that it is necessary to remit the appeal to the FTT to be reheard by another judge, who we direct should be a salaried FTT judge. We record that the only PCIs currently identified by the respondent relate to the appellant’s continuous qualifying period, and whether this was broken by his return to Romania, or alternatively (if the appellant has grounds so to argue) whether he is excused from the requirement that hiscontinuous qualifying period must continue until the date of application, in accordance with Appendix EU and the relevant guidance.
This means that the appellant needs to provide a written statement outlining the precise period or periods he has been outside the United Kingdom since 31 December 2020 with the reasons for any absence or absences. Therefore, when the matter is remitted to the FTT, it would be helpful, if the appellant’s evidence does not appear to address fully those PCIs, for a legal officer to ask any relevant ‘clarifying questions’ regarding the continuity of residence point.