NN (South Africa) & Anor v Secretary of State for the Home Department

Under rule 34, the Upper Tribunal may determine an appeal without an oral hearing where the issues can fairly be resolved on the written material. A party must show that the decision fell outside the legitimate bounds of the discretion; misleading directions alone do not establish an error of law.

In an Article 8 appeal, factual criticism is insufficient where the tribunal applied the law, considered family and private life, addressed the child’s best interests and balanced the competing factors. A child’s best interests are paramount, but ordinary disruption and inconvenience caused by removal do not themselves establish an Article 8 breach.

The appellants, a South African mother and her daughter, challenged removal after applications for leave to remain outside the Immigration Rules and under Article 8. They relied on family and private life with the mother’s settled parents in the United Kingdom, and on the child’s best interests.

The First-tier Tribunal dismissed the appeals. The Upper Tribunal dismissed the appeal without an oral hearing. The central issues were whether that procedure was lawful, whether the First-tier Tribunal had misused Imoh, and whether its Article 8 assessment contained an error of law.

The Court of Appeal dismissed the appeal. Lord Justice Patten gave the judgment, with which Lord Justice Briggs and Lord Justice Leveson agreed.

1. Oral hearing. Rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 had to be exercised consistently with the overriding objective of dealing with cases fairly and justly. The rule conferred a broad discretion. The Upper Tribunal had not adopted an impermissible necessity test. The directions, read as a whole, indicated that written submissions should identify any request for an oral hearing and any further material. The appellants had filed nothing further. Since no new evidence was relied on and the issues could be adequately determined from the written material, the decision to proceed without oral argument fell within the legitimate bounds of the discretion.
2. Jurisdiction. The court proceeded on the Secretary of State’s concession that the decision to dispense with an oral hearing formed part of a composite substantive determination appealable under section 12 of the Tribunals, Courts and Enforcement Act 2007. It did not decide whether that concession was correct.
3. Imoh. The First-tier Tribunal had referred to Imoh in relation to the proposed re-establishment of family life with the child’s father, not when deciding whether family life existed with the settled grandparents. The challenge based on Imoh therefore had no substance.
4. Article 8. The First-tier Tribunal had applied the approach in Kugathas, considered the relationship with the grandparents and extended family, and addressed the child’s best interests. Those interests had to be treated as paramount, as explained in ZH (Tanzania), but judges were not required to elevate the disruption and inconvenience of moving abroad into an Article 8 breach. On the evidence, the mother and daughter’s family life would continue abroad and could include reunification with the father. No arguable error of law was shown.

1. Court of Appeal (Civil Division): appeal dismissed. [2013] EWCA Civ 653.
2. Upper Tribunal (Immigration and Asylum Chamber): appeal from the First-tier Tribunal dismissed on 19 September 2012. The appeal was determined without an oral hearing.
3. First-tier Tribunal: appeal against the Secretary of State’s removal decision dismissed after an oral hearing.