Misc re-accreditation topics

Question 1

Byndloss [2017] UKSC 42

Answer 1

The law on certification (re appeals) has been thrown into doubt by the recent Supreme Court decision in Byndloss [2017] UKSC 42. This case suggests that because there are currently limited facilities available to conduct appeals from outside the UK, it would be unfair to expect someone to appeal from outside the UK.

In theory, this means that the SSHD should not be certifying cases unless certifying them as clearly unfounded. A decision to certify may be open to challenge by judicial review. Should the facilities available to the Tribunal change, this position may alter very quickly and on a country by country basis.

Question 2

Section 96 NIAA 2002

Answer 2

The SSHD can certify an appeal under section 96 of the 2002 Act if the appeal could have been brought earlier, or the application relates to a ground that could have been raised in an appeal against an old decision.

Section 96 is intended to prevent claimants raising matters at the last minute to frustrate removal.

Question 3

s82 NIAA 2002

Answer 3

Right of appeal

(1) A person (“P”) may appeal to the Tribunal where—
(a) the Secretary of State has decided to refuse a protection claim made by P,
(b) the Secretary of State has decided to refuse a human rights claim made by P, or
(c) the Secretary of State has decided to revoke P’s protection status.

Question 4

s84 NIAA 2002

Answer 4

Grounds of appeal

(1) An appeal under section 82(1)(a) (refusal of protection claim) must be brought on one or more of the following grounds—
(a) that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention;
(b) that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection;
(c) that removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).
(2) An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.

Question 5

s85 NIAA 2022

Answer 5

Matters to be considered

S.85(5) of the amended 2002 Act, bars the tribunal from considering a new matter ‘unless the SSHD has given the Tribunal consent to do so’, if the matter has not previously been considered in the decision or in an appellant’s response to a NIAA 2002, s.120 statement, in which any additional grounds must be stated.

This limitation appears to give the SSHD, a party to the appeal, a veto over what the tribunal can consider. Currently there is no guidance on how this will operate in practice but it is understood that the tribunal will interpret issues raised in the grounds broadly.
[LS Practice Note]

Question 6

AM (Afghanistan) v Secretary of State for the Home Department & Lord Chancellor [2017] EWCA Civ 1123

Answer 6

New guidance has been given by the Court of Appeal to the First-tier and Upper Tribunal designed to ensure that children, young people and other vulnerable persons including those lacking capacity have an effective right of access to the tribunal and a voice in the proceedings - AM (Afghanistan) v Secretary of State for the Home Department & Lord Chancellor [2017] EWCA Civ 1123. Practitioners should familiarise themselves with this judgment.

Afghan 15yo. Psych report (Sellwood) - moderate learning difficulties - recommendations for arrangements for giving evidence (informality, exclusion of members of public, questions to be open ended where possible and simple/self-contained)

Possible to appoint a litigation friend.

The primary responsibility for identifying vulnerabilities must rest with the appellant’s representatives who are better placed than the Secretary of State’s representatives to have access to private medical and personal information. Appellant’s representatives should draw the tribunal’s attention to the PD and Guidance and should make submissions about the appropriate directions and measures to be considered e.g. whether an appellant should give oral evidence or the special measures that are required to protect his welfare or make effective his access to justice. The SRA practice note of 2 July 2015 entitled ‘Meeting the needs of vulnerable clients’ sets out how solicitors should identify and communicate with vulnerable clients. It also sets out the professional duty on a solicitor to satisfy him/herself that the client either does or does not have capacity.

Question 7

Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367, [2005] INLR 377 at [24] to [25];

Answer 7

Holistic assessment of credibility. It is an error of approach to come to a negative assessment of credibility and then ask whether that assessment is displaced by other material

“24. It seems to me to be axiomatic that a fact-finder must not reach his or her conclusion before surveying all the evidence relevant thereto. Just as, if I may take a banal if alliterative example, one cannot make a cake with only one ingredient, so also frequently one cannot make a case, in the sense of establishing its truth, otherwise than by combination of a number of pieces of evidence.” MR JUSTICE WILSON

Question 8

Practice Direction ‘First-tier and Upper Tribunal Child, Vulnerable Adult and Sensitive Witnesses’, was issued by the Senior President, Sir Robert Carnwath, with the agreement of the Lord Chancellor on 30 October 2008

Answer 8

CIRCUMSTANCES UNDER WHICH A CHILD, VULNERABLE ADULT OR SENSITVE WITNESS MAY GIVE EVIDENCE

2. A child, vulnerable adult or sensitive witness will only be required to attend as a witness and give evidence at a hearing where the Tribunal determines that the
   evidence is necessary to enable the fair hearing of the case and their welfare would not be prejudiced by doing so.
3. In determining whether it is necessary for a child, vulnerable adult or sensitive witness to give evidence to enable the fair hearing of a case the Tribunal should
   have regard to all the available evidence and any representations made by the parties.
   …

MANNER IN WHICH EVIDENCE IS GIVEN
6. The Tribunal must consider how to facilitate the giving of any evidence by a child, vulnerable adult or sensitive witness.
7. It may be appropriate for the Tribunal to direct that the evidence should be given by telephone, video link or other means directed by the Tribunal, or to direct that a person be appointed for the purpose of the hearing who has the appropriate skills or experience in facilitating the giving of evidence by a child,
vulnerable adult or sensitive witness.

Question 9

Koori & Ors v The Secretary of State for the Home Department [2016] EWCA Civ 552

Answer 9

In Koori & Ors v The Secretary of State for the Home Department [2016] EWCA Civ 552 it was confirmed that:

“tribunals are entitled to expect to be referred at the hearing to the relevant law and to hear submissions on it.”

Question 10

Evidencing relationships

Answer 10

bear in mind the fact that Home Office guidance often asks for at least six pieces of evidence from at least three different sources to substantiate relationships

Question 11

Devaseelan

Answer 11

The Devaseelan guidance is set out at §32 of the judgment:

(1) The first adjudicator’s determination should always be the starting-point. It is the authoritative assessment of the appellant’s status at the time it was made. In principle issues such as whether the appellant was properly represented, or whether he gave evidence, are irrelevant to this.
(2) Facts happening since the first adjudicator’s determination can always be taken into account by the second adjudicator.
(3) Facts happening before the first adjudicator’s determination but having no relevance to the issues before him can always be taken into account by the second adjudicator.
(4) Facts personal to the appellant that were not brought to the attention of the first adjudicator, although they were relevant to the issues before him, should be treated by the second adjudicator with the greatest circumspection.
(5) Evidence of other facts, for example country evidence, may not suffer from the same concerns as to credibility, but should be treated with caution.
(6) If before the second adjudicator the appellant relies on facts that are not materially different from those put to the first adjudicator, the second adjudicator should regard the issues as settled by the first adjudicator’s determination and make his findings in line with that determination rather than allowing the matter to be re-litigated.
(7) The force of the reasoning underlying guidelines (4) and (6) is greatly reduced if there is some very good reason why the appellant’s failure to adduce relevant evidence before the first adjudicator should not be, as it were, held against him. Such reasons will be rare.
(8) The foregoing does not cover every possibility. By covering the major categories into which second appeals fall, the guidance is intended to indicate the principles for dealing with such appeals. It will be for the second adjudicator to decide which of them is or are appropriate in any given case.

Question 12

JS and others v SSHD [2019] UKUT 64

Answer 12

In JS and others v SSHD [2019] UKUT 64, the Upper Tribunal underlined that the need for a litigation friend is case-specific, and provided useful guidance in relation to the appointment of litigation friends, particularly in relation to children. However, a litigation friend can also be appointed where adults lack capacity.

The Tribunal’s approach to children aged 12 and over is given below.

Applicants aged 16 or 17 years
In JS, the Tribunal stated (at para.84 of the judgment):
“Accordingly, as a general matter, we consider that applicants aged 16 or 17 years, without any attendant vulnerability or special educational need or other characteristic denoting difficulty, will be presumed to have capacity and so be able to conduct proceedings in their own right. They will generally not require a litigation friend. This is the position even if they are not legally represented.”

Applicants aged between 12 and 15 years
In relation to younger children, the Tribunal noted (at para.85):
“The appointment of litigation friends for applicants between the ages of 12 years and 15 years inclusive (i.e. 12 and over but younger than 16) will need to be considered on a case-by-case basis and the circumstances which should be considered, but which are not exhaustive, are:
(a)whether the applicant is legally represented;
(b)whether there is an assisting parent;
(c)whether there is a local authority involved; and
(d)whether the applicant has any type of vulnerability.”

Question 13

Birch (Precariousness and mistake; new matters) [2020] UKUT 86 (IAC)

Answer 13

In Birch (Precariousness and mistake; new matters) [2020] UKUT 86 (IAC) (at [22]), the Upper Tribunal found that the respondent’s consent was not required in the Upper Tribunal. This was because under s.81 “the Tribunal” is defined as meaning the FTT only.

However, this interpretation has been overturned by the Upper Tribunal in Hydar (s.120 response, s.85 “new matter”, Birch) [2021] UKUT.

In Hydar, the Upper Tribunal concluded that s.85(5) applies to both the FTT and the Upper Tribunal.

Question 14

R (Agyarko) [2017] UKSC 11

Answer 14

These appeals were heard after the Supreme Court’s decision in R (Agyarko) [2017] UKSC 11 (see here) which made it clear that the scheme established by the overhauled Immigration Rules and associated instructions was lawful and compatible with article 8 of the ECHR. Overall, Agyarko not only entitles the Home Office to lawfully apply a test of insurmountable obstacles to the relocation of the family within the rules, it also permits the application of a test of exceptional circumstances outside the rules.

Question 15

Mahmud (s.85 NIAA 2002 – “new matters”) [2017] UKUT 488 (IAC)

Answer 15

the FTT must determine whether something is a new matter.
a new matter is one which constitutes a s.84 ground of appeal and is a factual matrix that has not previously been considered by the respondent in a s.82(1) decision or a statement under s.120.
the matter must be factually distinct from one previously raised by an appellant, as opposed to further or better evidence of an existing matter.
the assessment will always be fact sensitive – if the new factual matrix is considered in a decision letter, it will not be a new matter.

Question 16

Quaidoo (new matter: procedure/process) [2018] UKUT 87 (IAC)

Answer 16

if the FTT is satisfied a matter is a new matter and the respondent seeks an adjournment to consider giving the required consent (in pursuance of the HO guidance on rights of appeal), then it will generally be appropriate to grant such an adjournment rather than proceed without consideration of the new matter.
if the respondent subsequently decides not to consent, then the appropriate remedy is a challenge by way of JR.

Question 17

Oksuzoglu (EEA appeal – “new matter”) [2018] UKUT 385

Answer 17

Oksuzoglu (EEA appeal – “new matter”) [2018] UKUT 385 held that:
a “new matter” also includes a European Economic Area (EEA) ground of appeal, and therefore requires the respondent’s permission to be considered as part of a protection appeal.
This was recently affirmed by the Upper Tribunal in MM (section 117B(6) – EU citizen child) Iran [2020] UKUT 224 (at [31]).

Question 18

OA and others (human rights; “new matter”; s.120) Nigeria [2019] UKUT 65

Answer 18

OA and others (human rights; “new matter”; s.120) Nigeria [2019] UKUT 65 held that:
the fact that an appellant completes ten years’ continuous lawful residence during the course of an appeal on HR grounds will generally constitute a new matter.

Question 19

AK and IK (s.85 NIAA 2002 - new matters) Turkey [2019] UKUT 67

Answer 19

if an appellant relies on criteria in an appeal that relate to a different category of the Immigration Rules from those relied upon in their application for leave to remain or in their s.120 statement [to make good their A8 claim], then this constitutes a new matter – therefore, the SSHD’s consent is required, even if the facts relied upon in the appeal remain the same.

Question 20

SK (guidance on application of Devaseelan) Serbia & Montenegro [2004] UKIAT 282

Answer 20

SK (guidance on application of Devaseelan) Serbia & Montenegro [2004] UKIAT 282 affirmed the Devaseelan principles, the most important being:
the first appeal determination should always be the starting point.
relevant facts personal to the appellant, but not raised in the first appeal, should be treated with the greatest circumspection in the new appeal.
if facts raised in the new appeal are not materially different to those raised in the first appeal, the new judge should regard the issues as settled by the first appeal determination.
an appellant relying on new evidence / facts must provide a very good reason for failing to raise them in the first appeal.

Question 21

SSHD v BK (Afghanistan) [2019] EWCA Civ 1358

Answer 21

SSHD v BK (Afghanistan) [2019] EWCA Civ 1358 provided the following clarification of the Devaseelan principles.
The Tribunal must consider whether findings made in the first determination are so unreliable that they should not be preserved in the current proceedings.
The Tribunal is restricted to material post-dating the first determination or which was not relevant to the first decision, as the Tribunal must conscientiously decide the case in front of them.
Correspondingly, the Tribunal must be alive to the unfairness of an opposing party having to relitigate a point on which they previously succeeded, especially if it was not then challenged on appeal.

Question 22

Kalidas (agreed facts – best practice) Tanzania [2012]

Answer 22

In Kalidas (agreed facts – best practice) Tanzania [2012] UKUT 327 (IAC) the Tribunal held that:
parties should provide written confirmation of issues agreed and concessions made.
if credibility is not in issue, an appellant is not usually required to provide a further statement or give evidence, although the Tribunal should be told why.
any further statement from an appellant should focus on the remaining live issues.
any skeleton argument should address the live issues, rather than just containing general law.
representatives are jointly responsible for drawing the Tribunal’s attention to any agreement reached, and the nature of the decision still required.

Question 23

Hoxha

Answer 23

legal representatives have a professional duty to check the accuracy of medical reports (as affirmed by the Upper Tribunal in Hoxha).

Question 24

R (Iran) [2005] EWCA Civ 982

Answer 24

guidance on what constitutes an error of law

1. Before the IAT could set aside a decision of an adjudicator on the grounds of error of law, it had to be satisfied that the correction of the error would have made a material difference to the outcome, or to the fairness of the proceedings. This principle applied equally to decisions of adjudicators on proportionality in connection with human rights issues;
2. A finding might only be set aside for error of law on the grounds of perversity if it was irrational or unreasonable in the Wednesbury sense, or one that was wholly unsupported by the evidence.
3. A decision should not be set aside for inadequacy of reasons unless the adjudicator failed to identify and record the matters that were critical to his decision on material issues, in such a way that the IAT was unable to understand why he reached that decision.
4. A failure without good reason to apply a relevant country guidance decision might constitute an error of law.
5. At the hearing of an appeal the IAT had to identify an error of law in relation to one or more of the issues raised on the notice of appeal before it could lawfully exercise any of its powers set out in s 102(1) of the 2002 Act (other than affirming the adjudicator’s decision).
6. Once it had identified an error of law, such that the adjudicator’s decision could not stand, the IAT might, if it saw fit, exercise its power to admit up-to-date evidence or it might remit the appeal to the adjudicator with such directions as it thought fit.
7. If the IAT failed to consider an obvious point of Convention jurisprudence which would have availed an applicant, the Court of Appeal might intervene to set aside the IAT’s decision on the grounds of error of law even though the point was not raised in the grounds of appeal to the IAT.

Question 25

R (on the application of Onowu) v First-tier Tribunal (Immigration and Asylum Chamber) (extension of time for appealing: principles) IJR [2016] UKUT 185
(IAC)

Answer 25

Further guidance, based on Mitchell, Denton and Hysaj, is identified in R (on the application of Onowu) v First-tier Tribunal (Immigration and Asylum Chamber) (extension of time for appealing: principles) IJR [2016] UKUT 185
(IAC):
(i) There is no merit in constructing a special rule for public authorities; they have a responsibility to adhere to the court’s rules even if their resources are ‘stretched to breaking point’ [42];
(ii) A solicitor or public body having too much work will rarely be a good reason for failing to comply with the rules [42];
(iii) Particular care needs to be taken in appeals concerning claims for asylum and humanitarian protection to ensure that appeals are not
frustrated by a failure by a party’s legal representatives to comply with time limits. The nature of the proceedings and identification of responsibility for a failure are matters to be considered at the third stage
of the process [42];
6
(iv) The inability to pay for legal representation cannot be regarded as providing a good reason for delay [43], nor can the fact that that the party is awaiting a decision on legal aid.
(v) In most cases the merits of the appeal will have little to do with whether it is appropriate to grant an extension of time. Only in those cases where
the court can see without much investigation that the grounds of appeal are either very strong or very weak will the merits have a significant part to play when it comes to balancing the various factors that have to
be considered at stage three of the process [46].

Question 26

Bhavsar (late application for PTA: procedure) [2019] UKUT 196

Answer 26

Bhavsar (late application for PTA: procedure) [2019] UKUT 196 held that:
although there is nothing in the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 that prevents the FTT from refusing to admit an application for PTA to the Upper Tribunal, where the application is made outside the relevant time limits and the Tribunal does not extend time the appropriate course is to refuse to admit the application.
thereafter, any application to the Upper Tribunal for PTA will be subject to rule 21(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (the 2008 Rules), whereby the Upper Tribunal can only admit the application if the Upper Tribunal considers it in the interests of justice.

Question 27

Durueke (PTA: AZ applied, proper approach) [2019] UKUT 197

Answer 27

Durueke (PTA: AZ applied, proper approach) [2019] UKUT 197 held that:
the evidential basis for granting permission on a ground not raised by the parties must be clear from the grounds of appeal, and/or the FTT’s decision, and/or filed documents.
the permission judge must not assume such evidence was before the deciding judge. Although the Guidance says establishing reasonable prospects of success is a relevant criterion for granting permission, it is not a precondition for granting.
a point of law may be of sufficient general public importance to justify the grant of permission, even though the appellant’s prospects of success may not be substantial.

Question 28

Rule 15(2A) of the 2008 Rules

Answer 28

Rule 15(2A) of the 2008 Rules deals with the procedure for adducing evidence before the Upper Tribunal that was not before the FTT.

In such circumstances, the Upper Tribunal and any other party must be notified of the nature of the new evidence, with an explanation of why it was not submitted to the FTT.

When considering whether to admit such evidence, the Upper Tribunal must consider whether there has been unreasonable delay in producing that evidence.

Question 29

Kabir v SSHD [2019] EWCA Civ 1162

Answer 29

In Kabir v SSHD [2019] EWCA Civ 1162, the Court of Appeal held that:
the Upper Tribunal was entitled to refuse to admit fresh evidence in an immigration appeal where the appellant had failed to follow the procedure in rule 15(2A) of the 2008 Rules.
the proper practice is to use the standard application notice (form T484) for this purpose.
in accordance with the Ladd v Marshall principle, the new evidence could, with reasonable diligence, have been made available to the FTT on the initial appeal.