Scottish Court of Session Decisions

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 39

[XA134/15]

Lord Justice Clerk

Lady Paton

Lord Drummond Young

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in the APPEAL

under section 13 of the Tribunals, Courts and Enforcement Act 2007

by

ADEBAYO AINA

Appellant;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondents:

Act:  Party

Alt: Gill, Office of the Advocate General for Scotland

1 June 2016

Introduction

[1]        This appeal arises out of the appellant’s application under the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”) for a residence card on the ground of his marriage to a British national.

Immigration history
[2]        The appellant is a national of Nigeria.  On 24 August 2010 he was convicted of two offences in the UK, viz. procuring a false marriage and trying to obtain leave to remain in the UK by deception.  He was sentenced to six months on each charge, the sentences to be served consecutively.  He applied to the Secretary of State to remove him to Nigeria in exchange for commuting his sentence under the facilitated return scheme.  The Secretary of State accepted that application and issued a deportation order under section 32(5) of the UK Borders Act 2007.  He was removed from the UK on 31 January 2011.  In March 2011 in Lagos he married a British citizen with whom he had been in a relationship since 2007.  He (and his wife) returned to the UK at an unknown date, after a short period in Germany.

Application for residence card

[3]        On 14 May 2013 he applied for an EEA residence card on the ground that he was married to a British national.  He was duly issued with a Certificate of Application under the 2006 Regulations.  On 17 December 2013 his application for a residence card was refused.  The refusal was based on an interpretation of the 2006 Regulations, namely Regulation 9 (insufficient evidence that the appellant’s wife had been working or self-employed in another member state (Germany) before coming back to the UK) and Regulation 20 (refusal was justified on the grounds of public policy, public security or public health, as those terms were defined in Regulation 21).  The appellant appealed to the First Tier Tribunal (FTT).  By determination dated 25 March 2014, the FTT upheld the appeal in relation to Regulation 20, but rejected it in relation to Regulation 9.  Leave to appeal to the Upper Tribunal (UT) on the Regulation 9 point was granted.  The UT set aside the decision of the FTT, on a concession that the respondent had failed to follow her usual practice of treating such an application as an application for a residence card and for revocation of the deportation order.  The matter was remitted to the Secretary of State for a lawful decision to be made.

[4]        Pending such a decision, the appellant applied for a second Certificate of Application, refusal of which application has been the subject of separate judicial review proceedings.

[5]        The Secretary of State made a new decision on the residence card on 12 January 2015, quoting as reasoning the original decision of the FTT in relation to Regulation 9, and asserting that the UT had remitted the matter to her solely to enable her to make a decision on deportation without overturning the finding of the FTT relating to Regulation 9.  On appeal against that decision, the FTT held that the deportation order was not lawful and should be revoked.  The basis of the deportation order was that the appellant was a “foreign criminal”, meaning someone sentenced to imprisonment for at least 12 months.  However, by virtue of section 38(1)(b) of the UK Borders Act 2007, the definition of “foreign criminal” did not include someone sentenced to 12 months’ imprisonment only by virtue of separate consecutive sentences.  The FTT concluded that the Secretary of State was thus not entitled to reject the application under Regulation 20.  However, the applicant did not satisfy the requirements of Regulation 9.  It had not been established that the “centre of life of the appellant’s wife” had been transferred to Germany, and the length of residence in that country was considered to be too short for the purposes of the Regulation.  The FTT noted that the residence in Germany had been with a purpose of providing an opportunity to return to the UK under the EEA Regulations.  In addition emphasis was placed on the fact that the appellant had entered the UK in breach of the deportation order (despite the finding that the order fell to be revoked).  Accordingly, on the basis of the FTT’s interpretation of Regulation 9 the appeal was refused.  The FTT issued that determination on 31 March 2015.  In the course of its decision relating to Regulation 20, the FTT had referred (para 73 of the determination) to the findings made in that respect in the previous determination of the FTT.  In relation to Regulation 9, the FTT also (Paras 87-90) referred to the findings made in the earlier determination.

[6]        Permission to appeal to the UT was granted on 22 April.  The judge who granted leave noted that (a) the order revoking the deportation order must stand; (b) that it was arguable that the FTT had erred in applying a version of Regulation 9 which had been amended, rather than the transitional provisions which appeared to apply to someone in the position of the appellant; (c) that the FTT had erred in taking account of the FTT’s findings at the original hearing; and (d) that it was arguable that the FTT had erred in considering the “motives” behind the move to Germany.  The UT found it surprising that the FTT had referred to the appellant having entered the country in breach of the deportation order.

[7]        On 16 July 2015 the UT allowed the appeal and set aside the decision of the FTT.  It noted that the application thus remained outstanding for a lawful decision by the respondent.  In its reasoning the UT upheld the decision that the deportation order had to be revoked.  Further, it considered that the FTT had erred in law in relying on findings in an earlier FTT decision which had been set aside (the determination dated 25 March 2014) (Devaseelan v Secretary of State for the Home Department [2003] Imm AR 1).  Both of these matters had been the subject of concession on behalf of the Secretary of State.

[8]        Those two matters disposed of the appeal, and the UT did not consider the other matters raised in the grounds of appeal to it, as referred to in the leave to appeal decision.

[9]        The appellant sought leave to appeal.  On the face of it, that is surprising, since the decision had been in his favour, but he submitted that the UT should have proceeded to deal with the other matters forming part of the grounds of appeal.

[10]      In the judicial review proceedings to which reference has been made, Lord Glennie  noted that the appeals to date had not been entirely unprofitable, since:

(a)        it had now been established that the deportation order was not lawful;

(b)        it was now clear that the application must be decided upon the basis of the
Regulations as they were in force at the time of the application and not as subsequently amended;

(c)        that the question was now effectively focused on whether the respondent
could rely on Regulations 20 and 21 for refusal of the application.

On that last matter, his lordship noted that this would be a matter for the respondent in the first instance, but that her decision would be constrained by the principles governing such a decision, set out in Regulation 21(5), and subject to appeal in the event that she reached a decision which did not satisfy the criteria there laid down.  She might also wish to have regard to what the FTT has said on the matter, on two separate occasions.

[11]      In the course of his decision about the matter before him relating to the question whether the appellant had been entitled to be issued with a Certificate of Application, and to damages for the failure to issue him with one, the Lord Ordinary made further observations in relation to Regulation 9 (at paras [69]-[72]) of his opinion.  He considered that the relevant test under the Regulation was fully satisfied and that:

“There is, to my mind, no doubt at all that the petitioner’s case satisfies the conditions of regulation 9 as it applied at the time. It is difficult to see any basis from which he would not be entitled to a residence card under the EEA regulations”

These observations were obiter since the issue of Regulation 9 was not one which the Lord Ordinary had to decide.  His opinion was issued on 24 November 2015.

[12]      The UT refused leave to appeal its decision of 16 July 2015 and the appellant sought leave from this court.  Leave was granted by Lord Malcolm on 17 December 2015.  In granting leave, he noted that on 2 November 2015 the Secretary of State made a fresh decision and again refused the application on substantially the same bases as the earlier decisions.  The appellant had not lodged a timeous appeal against the decision of the Secretary of State, but at the hearing on 17 December 2015 Lord Malcolm was advised that an application to appeal out of time had been made.  We were advised that leave to appeal out of time had been granted but that the appellant subsequently abandoned his appeal against that decision.

[13]      In granting leave Lord Malcolm considered that it was arguable that the UT erred, in the circumstances of this case, in simply setting aside the decision of the FTT on the ground conceded and not deciding the remaining grounds, since a decision on the other matters – specifically Regulations 20 and 21 – might have provided guidance to the Secretary of State on the important and substantial legal issues which had been raised.  Accordingly, Lord Malcolm concluded that “in the very unusual and particular circumstances of this case, I am persuaded that there is a compelling reason to grant leave to appeal to this court.”

Submissions

Appellant

[14]      The appellant tabled four grounds of appeal.  First, he averred that the UT had erred in law in failing to deal with all of the grounds of appeal on which leave had been granted.  That, it was said, was contrary to section 86 of the Nationality, Immigration and Asylum Act 2002.  Second, it was averred that the UT had failed properly to adopt the concession made at the hearing of the appeal before the UT on behalf of the respondent.  The concession concerned the reliance by the FTT upon the conclusions of the earlier FTT determination dated 25 March 2014 which had been set aside by the UT (“the Devaseelan point”; Devaseelan v Secretary of State for the Home Department [2003] Imm AR 1).  Third, in purporting to offer guidance to the respondent on the proper application of Regulations 20 and 21, the UT had re-opened, wrongly, for the respondent’s consideration a matter which was closed and not susceptible to a new decision.  That matter had not been part of the subject matter of the appeal.  Fourth, the UT had failed to address the appellant’s contention that it would be a disproportionate interference with article 8 for the appellant to be removed from the United Kingdom.

Respondent

[15]      The respondent’s written note of argument was augmented by oral submissions.  The respondent’s decision of 2 November 2015 rendered these proceedings moot, and the proper course of action would have been for the appellant to proceed with his late appeal against that decision.  In any event the decision of the UT contained no error in law.  It did not re-open the issue concerning Regulations 20 and 21.  The effect of its decision merely meant that the respondent would require to reconsider the matter afresh.  In doing so, she would require to consider Regulations 20 and 21, but that was not because the UT had made any determination thereanent.

[16]      Counsel explained that the Devaseelan point was conceded at the outset of the hearing of the appeal to the Upper Tribunal on 25 June 2015.  The basis of that concession lay in paragraphs 87 – 90 of the determination, in which the Immigration Judge (IJ) had relied on various conclusions of the FTT in its prior determination of 25 March 2014.  The UT, in its determination of 16 July 2015 recorded the concession only as relating to paragraph 73 of the FTT’s decision.  That was simply an error.  The grant of permission to appeal had stated that: “at paragraphs 73, 87, 89 and 90 [the IJ] took account of [the earlier] findings”.  The decision of the UT ought to have been restricted to paragraphs 87–90, these being the paragraphs upon which the concession had been based.  Counsel referred to an affidavit by Paul Morris Duffy, the Home Office Presenting Officer, who appeared before the UT.  At paragraph 5, he deponed:

“I conceded this very discrete point only, namely that Judge Bradshaw at paragraphs [87] to [90] had relied on findings in a previous determination that had, in fact, been set aside in dismissing the appeal under the EEA Regulations and article 8 ECHR and that this was an error on his part.  That was the extent of the concession made.  In paragraph [10] of its determination, the Upper Tribunal refers to paragraph [73] of the determination of Judge Bradshaw in relation to the concession I made.  Whilst paragraph [73] deals with the setting aside of the deportation order which was not challenged, it still relies upon previous findings made by Judge McGrade which were set aside.  I suspect that it is nothing more than carelessness that Judge Doyle has referred to the wrong paragraph”.

[17]      The UT found that the principle in Devaseelan had been incorrectly applied and the FTT’s determination could not stand.  It thus allowed the appellant’s appeal against the respondent’s decision to refuse his application for a residence card.  That was the proper course for the UT to follow.  It was proper for a tribunal “to determine that, because an appellant succeeds on one or more of his grounds, it is unnecessary to consider the others”; that is “an effective, economical and (despite s. 86) proper way of the Tribunal’s performance of its duties” (Secretary of State for the Home Department v Greenwood [2014] UKUT 342 (IAC), para. 14).

[18]      Counsel continued to maintain that there had not been an error in law in the determination of the UT, but in recognition of the arguments advanced in relation to the UT’s error in relation to the concession, submitted that if the court found otherwise it could remake the decision in relation to Regulation 9. If the court were to conclude that this would be the only way to give effect to the principle of effectiveness, the Secretary of State would not disregard the decision, notwithstanding the terms of her letter of 2 November 2015. A similar result would follow were the court to adopt the alternative solution of remitting the matter to the UT to consider the appeal afresh.

Decision

[19]      In its determination dated 31 March 2015, the FTT relied upon the conclusions of the previous FTT in its determination dated 25 March 2014. Before the UT, it was conceded (correctly) that this was contrary to the Devaseelan principle and the determination fell to be set aside. In setting aside the FTT determination, the UT referred to paragraph [73] of the FTT determination.  That paragraph was concerned with the validity of the deportation order and Regulations 20 and 21.  That is reflected in paragraph [11] of the UT’s determination which found that the respondent still had to decide, in accordance with the law, the appellant’s application for a residence card applying the discretion contained in Regulation 21.  However, the stated position of the respondent was that the concession was based on paragraphs [87] – [90]. Those paragraphs were concerned with Regulation 9.  There was no mention of Regulation 9 in the UT’s findings and its determination suggested that the concession was restricted to the validity of the deportation order and Regulations 20 and 21.  Together, paragraphs 10 and 11 of the UT determination contained an error of law, as they suggested that the only live issues were the validity of the deportation order and Regulations 20 and 21.  Paragraphs 10 and 11 suggested that the UT considered the Regulation 9 issue to be finally determined.  Had the UT appreciated that a lawful decision was awaited also in respect of Regulation 9, it would, in allowing the appeal, have given guidance in relation to that Regulation, as it did in relation to Regulations 20 and 21.

[20]      For the foregoing reasons, this appeal is allowed and the determination of the UT dated 16 July 2015 is set aside.  The matter is remitted to the UT, with the direction that the appeal is heard by a judge different to the judge against whose decision this appeal was directed, and all of the judges who have previously considered this case (2007 Act, section 14 (2)(b)(i) and (3)(a)(i)).  Additionally, we direct that the UT shall determine all of the grounds of appeal upon which permission to appeal was granted by Judge McCarthy in his determination dated 22 April 2015 (2007 Act, section (14(5)).