[2025] UKUT 00230 (IAC)

The power of the Upper Tribunal to set aside a decision of the First Tier Tribunal under s12 Tribunals, Courts and Enforcement Act 2007 arises where the decision “involved the making of an error on a point of law”. That does not necessarily require any error on the part of the judge who conducted the hearing, as the Upper Tribunal made clear in MM (unfairness; E & R) [2014] UKUT 105. In this case, no criticism can be made of the approach taken by the First-tier Tribunal judge, who correctly applied the law as it was then understood to be to the appeal before him. However, that approach has now been shown by Chaudhry to be incorrect.

As outlined above, it was common ground before us that the First-tier Tribunal had erred in law, and the only question therefore was whether the error was material, i.e. whether the outcome of the appeal would inevitably have been the same regardless of the error (cf AJ (Angola) v SSHD [2014] EWCA Civ 1636 at §49).

We conclude that the First-tier Tribunal’s error was material, for two principal reasons. First, it is clear from the reasoning at paragraphs 40-50 of the decision (cited above) that the judge confined himself to considering merely whether the Respondent’s decision was reasonable, and when assessing the Appellant’s evidence, again his touchstone was whether it “undermined” the Respondent’s decision. Although the judge recognised that a different decision could have been made on the evidence before the Respondent, he did not at any stage direct his mind to how he himself would find on the point. It cannot therefore be said that, had the judge not considered himself restricted by Chimi to a public law review of the deception issue, he would have reached the same conclusion.

Second, the case before the First-tier Tribunal was prepared and presented on the basis that the determination of the precedent fact issue would be limited to a public law review. That impression is fortified by the fact that the Appellant’s solicitors disclosed the unfavourable expert report expressly on the basis of the “duty of candour” that they considered applied. It cannot be said with any certainty (indeed it seems unlikely) that the case would have been presented in the same manner had the parties apprehended that the First-tier Tribunal was required to determine the precedent fact issue for itself.

We therefore conclude that the First-tier Tribunal’s error was material to the outcome of the appeal. Whilst the appellant submitted that it was appropriate for the matter to be remitted to the First-tier Tribunal for redetermination we are not satisfied that in this case this is the appropriate course. We have had regard to the decision of the Upper Tribunal in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 recording the general principle from the Practice Direction that where there has been an error of law the case will be retained in the Upper Tribunal for redetermination. This is not a case where the appellant was deprived of a fair opportunity for his case to be put in the First-tier Tribunal or the nature or extent of any fact finding is such that it is appropriate for the case to be remitted. We note that this is a case in which the error of law consists in the change in the approach to appeals of this type which has been made by the Court of Appeal’s decision in Chaudhry and not any unfairness in the procedure before the First-tier Tribunal. We have reflected on the appellant’s loss of a two tier appeal process and afforded that due weight bearing in mind the observations of Stuart-Smith LJ in AEB v SSHD [2022] EWCA Civ 1512. Nonetheless we consider that this is a case to which the general principle arising from the Practice Direction should apply and that the case should be retained in the Upper Tribunal for remaking in the light of the recent legal developments which have been set out above.