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The case I am about to discuss, is a positive decision from the Upper Tribunal, which reflects the sensible views of the President of the Upper Tribunal, MacCloskey J, which was, as a busy direct access immigration barrister, a pleasure and indeed a relief to read.

The relevance of this decision is that often where an individual wins before an Immigration Judge, the Secretary of State will often appeal, for no other reason, it appears, than the Secretary of State lost and that in itself amounted to an error of law. I recall a story from when I had worked for the Treasury Solicitors Department (back in 1999) when Counsel for the Secretary of State had been asked to draft grounds of appeal against the decision of a Special Adjudicator (the forerunner of an Immigration Judge). One of the grounds that the Home Office wanted included, was that it was an error for the appeal to be allowed. That an Adjudicator could allow an appeal was seen as being an error in itself. Needless to say Counsel advised the Home Office that this was not a proper ground of appeal and it was not appealed.

Matters seem to have moved on, and I have heard from Home Office Presenting Officers, that they regularly appeal any allowed decision, particularly if article 8 is somewhere to be mentioned in the case. I have seen such formulaic grounds. They are entirely unsatisfactory and hardly persuasive. Unfortunately the First Tier Tribunal and indeed the Upper Tribunal grants the Secretary of State permission in cases where it appears part of the reasoning seems to be deference to the Secretary of State as opposed to identifying an error of law.

The President of the Upper Tribunal, the excellent and forthright MacCloskey J seems intent on ensuring that any grant of permission must follow both an identified error of law and be based upon reasons for the grant of leave. He has issued a couple of decisions which more than repay consideration.

The first is Nixon (permission to appeal: grounds) [2014] UKUT 368 (IAC). In this case the Secretary of State appealed on grounds that did not properly identify any error of law and were, in my view simply sour grapes on the part of the Secretary of State. Unfortunately, permission was granted for reasons that were neither clear nor identified any error of law. Again there is a hint of deference by the Tribunal to the Secretary of State in the grant of permission. The Upper Tribunal were not impressed with either the grounds of permission nor the grant of permission and dismissed the appeal.

Paragraph 2 of the decision sets out the grounds and grant of permission:
2. I draw attention to the two grounds upon which permission to appeal were formulated:

[1] “The Judge erred in according no weight to the emails from a local authority social services department to the effect that the Appellant was not living with his wife and child.”

[2] “The Judge erred in assessing the credibility of the three witnesses (besides sponsor, appellant and child) who gave evidence.”

The grant of permission to appeal focused exclusively on the second of these grounds and was couched in the following terms:

“The grounds submit the Judge erred in law in her credibility assessment of the three witnesses …

It is arguable that the Judge erred in law by finding that the three witnesses … gave evidence honestly and using that finding as the basis for finding the Appellant’s evidence credible ….

It is arguable that the Judge gave inadequate reasons for finding that the Appellant lived with his wife in a subsisting relationship.”

The Judge disposed of the Secretary of State’s appeal in the following paragraphs:

10. The application for permission to appeal in the present case did not satisfy the requirements and standards rehearsed above. It made no attempt to specify the error/s of law said to have been committed by the FtT. It employed the vague language of “erred”, without more. This was inadequate and unacceptable. In principle, an error of law may take a number of forms. Inexhaustively, these include a failure to have regard to material evidence; taking into account and being influenced by immaterial evidence; inadequate reasons; unfair procedure; misunderstanding or misconstruction of the law; disregarding a relevant statutory provision; failing to give effect to a binding decision of a superior court; and irrationality. It should not be difficult for those who compile applications for permission to appeal to do so in terms which specify clearly and coherently, with appropriate particulars, the error/s of law said to contaminate the decision under challenge. Terms such as “erred” or “erred in law” or “was wrong in law” or “misdirected itself in law” are unacceptable unless accompanied by a clear specification of the error/s of law alleged and suitable brief particulars. If the application for permission fails to satisfy this standard and the Judge concerned is unable to identify with confidence the error/s of law asserted, the appropriate course will be a refusal.

11. One of the negative consequences of poorly compiled applications for permission to appeal is the inappropriate expenditure of judicial time in attempting to understand the basis and thrust of the application. This occurred in the present case, both in advance of the substantive hearing and at the hearing itself. Given the pressures on Tribunals to process large volumes of cases efficiently and expeditiously, in circumstances where there has been a notable recent increase in applications for permission to appeal to UTIAC, this is unacceptable. Furthermore, it is inimical to the overriding objective enshrined in rule 2(1) of the 2008 Rules. This provides, inter alia, that the Upper Tribunal must be enabled to process cases in a manner which avoids delay. Poorly compiled applications for permission to appeal can have other undesirable consequences. These include undermining the important value of legal certainty and unfairness to the other party. Henceforth, applicants can expect unsatisfactory applications for permission to appeal to be dealt with brusquely and robustly.

12. The nebulous terms of the application for permission to appeal in the present case are reflected in the grant of permission. The former had a contagious effect on the latter. The Judge granted permission, firstly, on the ground that the FtT had arguably erred in law in its assessment of the credibility of three particular witnesses: see the second ground of appeal reproduced in [2] above. It may be observed that it will very rarely be appropriate to grant permission to appeal on this kind of ground. Credibility assessments by first instance fact finding Tribunals will normally be challengeable only on the basis of irrationality (or, as it is sometimes inelegantly termed, perversity): Edwards – v – Bairstow [1956] AC 14. Judges should be very slow to grant permission on such a ground. The second striking feature of the grant of permission is the statement:

“It is arguable that the Judge gave inadequate reasons for finding that the Appellant lived with his wife in a subsisting relationship.”

There was no contention in the application for permission that the FtT’s determination was inadequately reasoned. Thus there was a mismatch between application and grant. It seems likely that the permission Judge was struggling to comprehend the application and was driven to this formulation in consequence. Finally, as regards the first ground of appeal, also quoted in [2] above, it is abundantly clear from the determination that the Judge had considered the emails from the local authority but, on perfectly rational and clearly explained grounds, declined to accord them any weight.

13. I announced my decision, with reasons, at the conclusion of the hearing. In brief summary, Mr Smart, representing the Secretary of State, accepted, realistically and correctly, that this is an irrationality challenge. The proportions of the hurdle thereby erected require no elaboration. I am satisfied that the findings and conclusions of the Judge were comfortably open to her, having regard to the documentary evidence (which I have considered) and the oral evidence of those who testified (summarised in the determination). It was plainly open to the Judge to make the omnibus finding that the Appellant and his spouse were living together in a genuine and subsisting relationship. There is no demonstrable error on the face of the determination. Furthermore, sufficient findings are rehearsed, while others can be readily inferred. No piece of material evidence was overlooked by the Judge. Fundamentally, the weight which the Judge determined to accord to certain aspects of the evidence, while attaching correspondingly little or no weight to others, lay comfortably within the bounds of the standard of rationality.

One would hope that the Secretary of State and indeed Appellants’ representatives would have taken note of the decision. Clearly this did not happen as a similar case came before the President again. Again in MR (permission to appeal: Tribunal’s approach) Brazil [2015] UKUT 29 (IAC) the President was similarly in firm form in considering and rejecting meritless grounds of appeal, grounds which sadly had persuaded a Judge to grant permission. This was a case where the Appellant was the Secretary of State, the Respondent being a successful appellant against a decision to refuse a derivative right of residence under Regulation 15A of the Immigration (European Economic Area) Regulations 2006 (as amended).

The Immigration Judge had made proper findings. MacCloskey J dealt with the Secretary of State’s appeal and the grant of permission in the following paragraphs, needless to say he dismissed the Secretary of State’s appeal.

5. We emphasise that there is no suggestion that the Judge misdirected himself in law. Rather, permission to appeal was sought, and granted, on the basis that the Judge had “diminished” certain aspects of the Respondent’s evidence and, in terms, should have reached a different conclusion. The essence of the complaint advanced in the grounds of appeal is encapsulated in the following sentence:

“The Judge should have found that the Appellant could not satisfy the requirements of the Regulations and dismissed the appeal on this basis.”

Within this passage, considered in tandem with the remainder of the grounds, one finds the key to the application for permission to appeal: a simple quarrel with the Judge’s assessment of the various pieces of evidence considered and ensuing findings, nothing more and nothing less. The grounds of appeal, properly analysed, resolve to this.

6. In Nixon (permission to appeal: grounds) [2014] UKUT 368 (IAC), this Tribunal drew attention to rule 24(5) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, UTIAC Guidance Note 2011 and a series of related “elementary requirements and standards”. We draw particular attention to [6]:

“[6] Given recent experience, it may be timely to formulate some general rules of practice. It is axiomatic that every application for permission to appeal to the Upper Tribunal should identify, clearly and with all necessary particulars, the error/s of law for which the moving party contends. This must be affected in terms which are recognisable and comprehensible. A properly compiled application for permission to appeal will convey at once to the Judge concerned the error/s of law said to have been committed. It should not be necessary for the permission Judge to hunt and mine in order to understand the basis and thrust of the application. While in some cases it will be possible for the permission Judge to engage in a degree of interpretation and/or making inferences for this purpose, this should never be assumed by the applicant and cannot operate as a substitute for a properly and thoroughly compiled application. These are elementary requirements and standards.”

We do so for the purpose of pointing out, with some emphasis, that the application for permission to appeal in the present case did not comply with the governing rules and principles. In passing, we observe that the successor to rule 24(5) of the now superseded 2005 Rules is rule 33(5) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.

7. Next, we draw attention to the terms in which permission to appeal was granted in this case:

“The grounds on which permission to appeal is sought submit that the Judge erred in law in that he failed correctly to interpret and apply the requirement arising from Regulation 15A(2)(c) of the 2006 EEA Regulations that the Appellant’s British citizen daughter would be unable to reside in the UK or another EEA State if the Appellant were required to leave. This is arguable.”

As appears from our assessment and conclusions above, we consider that no arguable error of law was disclosed in the permission application. The fundamental defect in the application was its failure to articulate any identifiable or recognisable error of law. Thus there was no basis for granting permission to appeal. Moreover, the terms in which permission to appeal was granted are unsatisfactory. Neither this formula nor anything kindred is acceptable. In Nixon, it was stated, in [8]

“It may be worth emphasising that, irrespective of whether permission to appeal is granted on all of the grounds advanced or some thereof only, a reasoned decision is always required in respect of each and every ground, which reinforces the necessity of considering all grounds with scrupulous care.”

It is appropriate to add that nothing of an unduly elaborate, burdensome or analytical nature is expected of the permission Judge. The reasons for granting or refusing permission to appeal, in whole or in part, in any given case will almost invariably be capable of being expressed in a concise and focused manner. In most cases, a couple of carefully constructed sentences will suffice. Adherence to this basic, but indispensable, discipline will ensure that only worthy candidates overcome the threshold. We are confident that compliance with this fundamental requirement would have identified the present case as an entirely unworthy candidate for the grant of permission.

8. To conclude, the decision of the FtT in this case was unimpeachable. On behalf of the Secretary of State, the application for permission to appeal was launched on a wing and a prayer. It was manifestly devoid of any substance or merit and should have been exposed accordingly.

What comes out of all of this, for me at least, is that the Secretary of State appealing is not, by any stretch of the imagination, the end of the road. It is often a frustrating and sometimes expensive (though there is now the prospect of recovering costs, see a further post to follow) delay in obtaining a residence permit but should be seen in perspective. I would urge anyone who has succeeded before an Immigration Judge and where the Secretary of State has appealed to consult with their lawyer and see what can be done to submit any further evidence submissions at the earliest stage in order to give their case the best chance of success. I am happy to advise on any such case and it goes without saying that I am happy to attend any Upper Tribunal hearing and indeed am currently in the Upper Tribunal at lest 2 or 3 times a week at present and have extensive experience in that Tribunal

Paul Turner is a highly regarded direct access immigration barrister practising from Mansfield Chambers, the Chambers of Michael Mansfield QC, 5 Chancery Lane, London, WC2A 1LG and a door tenant at 39 Park Square Leeds LS1 2NU and is licensed by the Bar Council to provide advice and representation directly to the public.