England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[Appeal No: DA/01043/2010]

		Royal Courts of Justice Strand London WC2A 2LL
		21 May 2013

Lord Justice Tomlinson:

1. The appellant is a citizen of Ghana. He is 24. He arrived in this country in March 2007 with the benefit of entry clearance as a student. His leave to remain as a student was extended until 2013. He is married to a naturalised British citizen and has one child from that marriage, now aged 2. He has another child, now aged 4, from a previous relationship.
2. On 11 November 2010 a deportation order was made against him pursuant to section 32 of the United Kingdom Borders Act 2007 following his conviction for criminal offences of dishonestly making false representations to make gain for himself or causing loss to another and of making articles for use in fraud. In respect of those offences, he received a total sentence of 12 months' imprisonment.
3. As appears from the remarks of the sentencing judge, he was involved in a banking identity fraud. The sentencing judge described it in this way:

"You allowed an identity fraud team to use your own bank account to fleece a wholly innocent man of money, then you made it worse by both obtaining and using stolen credit card and bank card personal information, sufficiently to make between 10 and 20 fraudulent transactions over a three month period. In the first you made £300 and cost the bank four times that; in the second you made £3,000 and caused loss on your own account of £5,000 to others, almost certainly to the banks."

4. It was in the light of that that a custodial sentence was imposed rendering the appellant liable to automatic deportation under the provisions to which I have already referred.
5. The appellant appealed against the making of the deportation order. On 3 March 2011 the First-tier Tribunal dismissed his appeal. He appealed to the Upper Tribunal, obtaining leave from that court.
6. The determination of the Upper Tribunal was made by Upper Tribunal Judge Gleeson on 31 October 2011. The Upper Tribunal found that, although there had been an error of law in the determination of the First-tier Tribunal, on remaking that decision, the same conclusion was reached and the appeal was dismissed.
7. The circumstances in which the matter reaches this court is that an application for permission to appeal against the decision of the Upper Tribunal was made essentially, although not solely, on the ground that the Upper Tribunal had made a procedural error in determining the appeal to it without an oral hearing. Permission to appeal to this court on that and other grounds was refused both by the Upper Tribunal and by the single Lord Justice on consideration of the papers, but, at a renewed application for permission before Pill LJ, permission to appeal was granted. Pill LJ delivered a full judgment on the permission application, the neutral citation of which is [2012] EWCA Civ 816.
8. The principal ground upon which Pill LJ gave permission to this court was on the basis that the Upper Tribunal, when deciding not to hold an oral hearing of the appeal, had not, as it was required to do by rule 34(2) of the Upper Tribunal Rules of Procedure, had regard to the appellant's request that his appeal should be determined at an oral hearing. That request had been made when he requested permission to appeal by means of a cross being placed in the relevant box in the application for permission to appeal at section G, where the applicant is asked "If you are given permission to appeal by the Upper Tribunal, do you want that appeal to be dealt with at an oral hearing?", in respect of which the applicant or his advisers put a cross in the box marked "Yes".
9. It was on that basis, as I have indicated, that Pill LJ gave permission to appeal to this court. Pill LJ did not deal with the underlying merits of the substantive appeal beyond observing that the applicant wished to rely upon what he said was the failure of the Secretary of State properly to perform her duty under section 55 of the Borders, Citizenship and Immigration Act 2009, which requires the Secretary of State, when exercising her functions in relation to immigration and asylum, to have regard to the need to safeguard and promote the welfare of children.
10. On 1 August 2012, the Secretary of State having been notified of the outcome of the application before Pill LJ, at which she was not represented, the Treasury Solicitor on her behalf wrote to the applicant's solicitors indicating that the Secretary of State was willing to agree that the appeal be allowed by consent on the terms of an attached consent order. The proposed consent order provided by paragraph 1:

"The appeal be allowed and the matter remitted to the Upper Tribunal of the Immigration and Asylum Chamber for consideration by a differently constituted Tribunal."

11. There was attached to the draft order a Statement of Reasons prepared by the Secretary of State. That Statement of Reasons records in paragraph 3 that on 19 April 2011 Senior Immigration Judge Gleeson, sitting in the Upper Tribunal, had granted to the appellant permission to appeal the decision of the First-tier Tribunal on the basis that she considered it arguable that the First-tier Tribunal gave insufficient weight to the advantages that would accrue to the appellant's baby son by reason of his alleged British citizenship. The Statement of Reasons continues at paragraph 4:

"On 3 October 2011 Senior Immigration Judge Gleeson gave directions to the effect that:

(1) no further oral evidence was necessary and that if a hearing was required she would expect it to be limited to submissions;

(2) the Appellant's baby son's nationality must be proved by the appellant filing and serving a full statement with appropriate references to foreign law by no later than 15 October 2011;

(3) each party to file and serve supplementary witness statements or documents relevant to the matters identified in the grant of permission or the grounds of appeal by no later than 15th October 2011. The [Upper Tribunal] will then consider whether to determine the appeal without a hearing.

[emphasis added]

5. On 25th October 2011 the matter came back before SIJ Gleeson, who in a determination dated 31st October 2011 remade the decision and dismissed the Appellant's appeal without a hearing."

12. The Statement of Reasons then continues with a chronology as to the applications made both to the Upper Tribunal and to this court, before turning at paragraph 9 to the decision of Pill LJ. At paragraph 9 the Statement of Reasons says this:

"It is apparent from the judgment of [Pill LJ] that the concern which led to the grant of permission to appeal was not in relation to the matters pleaded in the Appellant's appeal grounds (in relation to which [Pill LJ] stated: 'I do not give any assurance whatever about the eventual outcome'), but instead centred on the fact that the appeal in the [Upper Tribunal] was determined by Senior Immigration Judge Gleeson without an oral hearing. At paragraph 16 of his judgment [Pill LJ] states:

'A basic point arises as to whether the applicant has had a fair hearing. Points arise as to the procedure which ought properly to be followed by the Upper Tribunal in circumstances such as these and I regard that as an important point of practice.'

10. The Respondent recognises the concern expressed by [Pill LJ] in relation to the procedure adopted by the Upper Tribunal and further accepts that it is a matter of importance.

11. Given the particular procedural circumstances of this case, the Secretary of State agrees that the appeal should be allowed and the case should be remitted to the Asylum and Immigration Tribunal."

13. I would add that, in the proposed consent order, the Secretary of State proposed that there should be no order as to costs, save for detailed assessment of the claimant's Legal Services Commission costs, those costs having of course been incurred in the making by the appellant of the ultimately successful application for permission to appeal to this court. That, as I say, was sent by the Treasury Solicitor on 1 August 2012.
14. On 18 September 2012 the appellant's solicitors, Messrs Burton & Burton, responded to the effect that, whilst the appellant accepted that the appeal needed to be remitted to the Upper Tribunal for further consideration and would be willing to consent to that, the appellant was of the view that it was still necessary and desirable for the matter to be heard by the Court of Appeal for two reasons: first, that it was necessary for the Court of Appeal to give guidance as to how the Upper Tribunal's discretion ought to be exercised when considering whether or not to conduct an oral hearing; and, secondly, that since the appellant maintained that the respondent Secretary of State had failed to discharge her statutory duty pursuant to section 55 of the 2009 Act, this court ought to give guidance to the Upper Tribunal "for the purposes of determining this appeal upon remittal".
15. On 28 September the Treasury Solicitor wrote to the Civil Appeals Office attaching correspondence with the appellant's solicitors and pointing out that, in the view of the Secretary of State, the issues in the appeal had been rendered academic. The Treasury Solicitor suggested that it would be a waste of court time and resources and costs to allow the matter to proceed to a full appeal hearing. The Secretary of State accordingly asked that the matter be taken out of the list and that it be remitted to the Upper Tribunal.
16. On 4 October the Treasury Solicitor wrote again to Messrs Burton & Burton Solicitors, enclosing a copy of the letter which it had written to the Civil Appeals Office and asking that, given the proximity of the hearing, which presumably by then had been fixed, that the appellant and his solicitors should give further consideration to whether it was necessary for a full hearing to take place.
17. The Treasury Solicitor appears to have received no substantive answer to that until sometime in May of this year when again, on 15 May, the appeal having by then been listed to be heard on 21 May, the appellant's solicitors reiterated their point that the guidance of this court was required on (a) the proper procedure that the Upper Tribunal should adopt when considering whether an appeal should be determined without a hearing; and (b) "Determining whether there is a burden upon the respondent to produce evidence before the Tribunal with respect to the welfare and best interests of the appellant's children pursuant to the section 55 duty and the burden of establishing proportionality under article 8; and determining how the Tribunal should approach the determination of the appeal if such evidence is not produced, or there are shortcomings in the evidence produced."
18. Yesterday, at 8.30 in the evening, the appellant produced for the first time, notwithstanding many earlier promises to do so, supplementary submissions directed to the question whether or not it is necessary for a hearing to take place of the full appeal, which is listed before us today. In those supplementary submissions, which Mr Jafferji for the appellant has repeated and expanded upon in oral argument before us today, it is pointed out that the appellant may not have the benefit of public funding in the event that the matter is remitted to the Upper Tribunal. Essentially what is suggested on his behalf is that, in view of that circumstance, it would be appropriate for this court not only to give guidance to the Upper Tribunal as to the manner in which its discretion should be exercised so far as concerns whether there should be an oral hearing of the appeal, but also this court should give guidance to the Upper Tribunal as to the ambit of the duty laid upon the Secretary of State pursuant to section 55 of the 2009 Act. In particular, there is an invitation to this court to indicate to the Upper Tribunal that, in the event that the Secretary of State falls short of what is alleged to be the extent of her duty in that regard, this should lead to the allowing of the appellant's application and the quashing of the decision to deport him.
19. In my judgment, the appeal to this court has, as the Secretary of State has contended, become completely academic. The Secretary of State has accepted that the Upper Tribunal erred in law in its approach to the question of whether or not there should be an oral hearing. It is wholly unnecessary that this court should give any guidance in relation to the exercise of that discretion bearing in mind that rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008 obliges the Upper Tribunal to have regard to the overriding objective set out therein when considering whether to list a hearing in order to deal with cases fairly and justly and, furthermore, that rule 34(2) of the 2008 Rules requires the Upper Tribunal to have regard to any views expressed by a party when deciding whether to hold a hearing and the form any such hearing should take.
20. Since it is common ground that Upper Tribunal Judge Gleeson failed to have regard to the appellant's request for an oral hearing, the matter, it is agreed, must be remitted to the Upper Tribunal for the exercise to be repeated. The statutory framework to which I have referred furnishes tribunal judges with the requisite tools for the fair determination of individual appeals and, in particular for determination of the question whether or not there should be an oral hearing or what other form the appeal should take.
21. Secondly, so far as concerns the question under section 55, this court has relatively recently, in HK (Afghanistan) v SSHD [2012] EWCA Civ 315, referred to the duty, set out in section 55, to which the Secretary of State must have regard when exercising her functions in relation to immigration and asylum. At paragraph 40 of his judgment in that case, Elias LJ said this:

"In my judgment, it is a necessary part of the section 55 duty to give primary consideration to the interests of the children that the Secretary of State should obtain as much information as is reasonably possible to assist her in determining where those best interests lie. If she fails unjustifiably to do that, I do not see how it can properly be said that she has complied with the section 55 duty. Moreover, the regulation 6 duty is in terms said to arise as soon as an asylum application is lodged and it is plainly intimately connected with the determination of that application. This suggests that it should be treated as a necessary element in the determination of an asylum application."

Pill and Rimer LJJ agreed with the judgment of Elias LJ.

22. Essentially what we are being invited to do by Mr Jafferji is to spell out to the Secretary of State in advance of the remitted hearing before the Upper Tribunal what precisely is the ambit of the duty cast upon her and what the Upper Tribunal should regard as the steps which it is reasonable to expect the Secretary of State to take so far as concerns the consideration of her duty. That is not the function of this court. It is the function of this court to determine issues which have arisen between the parties and which are necessary to be decided for the purpose of resolving an appeal. The only question which requires to be resolved on this appeal is the question whether or not the entire matter should be remitted for reconsideration by the Upper Tribunal. It is agreed between the parties that that must take place.
23. Mr Thomann for the Secretary of State has very fairly accepted that this court should approach the current appeal on the basis that the appellant may not have the benefit of legal aid for the purposes of the remitted hearing before the Upper Tribunal and he has also very fairly accepted that, if it should be the position that the appellant is not in receipt of legal aid or other necessary assistance for the purposes of that hearing, that will have an impact upon the ambit of the duty cast upon the Secretary of State under section 55 in order to ensure that in fairness there is material before the Upper Tribunal on the basis of which it can consider the Article 8 point. That is a most helpful concession or acceptance on behalf of the Secretary of State, and in the light of that it is plain, in my judgment, that it would be wholly inappropriate for the court at this stage to anticipate what may transpire before the Upper Tribunal and to attempt to give guidance either to the Secretary of State or to the Upper Tribunal as to what precisely is the ambit of the Secretary of State's duty.
24. For all those reasons, therefore, I would decline to consider the appeal before us to any further extent than I have already done, and I would for my part make the order to which the Secretary of State was prepared to consent as long ago as last August, which is that the appeal should be allowed and the matter remitted to the Immigration and Asylum Chamber of the Upper Tribunal for consideration by a differently constituted tribunal.
25. I would make it clear, for the avoidance of any possible doubt, that it will of course be a matter for the Upper Tribunal to determine what form its consideration of the remitted appeal should take and, in particular, whether or not there should be an oral hearing.

Lord Justice Underhill:

26. I agree.

Lord Justice Longmore:

27. I agree also.

Order: Appeal allowed