Two members of Chambers’ immigration team have had their cases in the Upper Tribunal (IAC) reported this week.
Alexis Slatter represented the Appellant in Ammari (EEA appeals – abandonment) [2020] UKUT 00124 (IAC) and Bronwen Jones the Appellant in MH (review; slip rule; church witnesses) Iran [2020] UKUT 00125 (IAC).
Ammari concerned an appeal under the 2016 Immigration (EEA) Regulations against the refusal to issue the Appellant with a permanent residence card. Prior to the hearing of the appeal, following an application, he was granted settled status under Appendix EU of the Immigration Rules. Neither party drew this to the attention of the First-tier Tribunal Judge, who dismissed the appeal. Following the grant of permission to appeal, the Respondent’s response asserted that the grant of ILR meant that the appeal should be treated as abandoned but this was refuted by the Appellant.
At the hearing of the appeal before the Upper Tribunal, the Respondent conceded that the Judge had erred in law, the decision fell to be remade and the appeal should be allowed; but sought further time to provide a considered response on the issue of abandonment. The Respondent’s written submissions conceded that the appeal did not fall to be treated as abandoned following a grant of leave to remain to the Appellant and that there had never been a legislative mechanism for an EEA appeal to be treated as abandoned.
The Upper Tribunal subsequently held that the First-tier Tribunal and the Upper Tribunal had jurisdiction to determine the EEA appeal notwithstanding the grant of leave to remain to the Appellant. The Respondent’s concessions on error of law and the satisfaction of the requirements for permanent residence were correctly made, the First-tier Tribunal Judge’s decision was set aside and the Upper Tribunal remade the decision concluding that the Respondent’s EEA decision breached the appellant’s rights under EU law.
In this decision, UT Judges Canavan and Norton-Taylor examined the historical appeal and abandonment provisions under the EEA regulations and the NIAA 2002. The Tribunal observed that section 104 of the NIAA 2002 was not one of the provisions that was read across to any appeal under the regulations and the provision to treat NIAA 2002 appeals as abandoned upon issue of EEA documentation had been revoked on 6 April 2015 and not replaced – presumably because of the 2014 amendments to the 2002 Act precluded reliance upon rights under EU law in s82(1) NIAA 2002 appeals.
MH involved a protection claim, based on the Appellant’s conversion to Christianity, which had been refused by the Respondent. In addition, in the First-tier Tribunal’s decision on her appeal, extensive reasons were given for concluding that her claim was a fabrication and her removal to Iran would not place the UK in breach of international obligations. However, in finalising the decision on the appeal, the FTT Judge had recorded their decision as allowing the appeal. The Secretary of State appealed submitting that it was plainly an error in light of the Judge’s reasons. The Appellant also cross-appealed with permission contending that the reasons for disbelieving her account were inadequate.
The Upper Tribunal held that the First-tier Tribunal Judge had materially erred in law when finding that the Appellant was not a genuine convert to Christianity as a result of the Judge’s treatment of evidence from the Appellant’s Church witnesses. Accordingly the decision was set aside and remitted for hearing afresh.
In addition, the President of the Upper Tribunal sitting with UT Judge Blundell held that the Judge had also erred in law in purportedly allowing the appeal when it was his plain intention to dismiss it, but this was not a material error of law. On receipt of an application for permission to appeal, consideration ought to have been given by the First-tier Tribunal to treating it as a different type of application under Rule 36 of the Procedure Rules 2014 and specifically to its power, in Rule 35, to review its own decision – the utility of which had been underlined in Thapa [2018] UKUT 54 (IAC). The Upper Tribunal held that the decision in Katsonga [2016] UKUT 228 (IAC) should be over-ruled as it had been incorrectly decided: there was also jurisdiction for the First-tier Tribunal to use ‘the slip rule’ in Rule 31 of the Procedure Rules 2014.
This case provides a reminder of other remedies available in the First-tier Tribunal following an appeal decision and gives useful practical guidance for representatives when requesting them to be exercised. There is also a useful and interesting discussion of when witnesses can be properly described as ‘experts’.
