AA (Ghana) v Secretary of State for the Home Department

An appeal becomes academic where the respondent accepts that the lower tribunal erred and agrees to a remittal which will provide the necessary remedy. The appellate court should decide only issues that have arisen between the parties and are necessary to resolve the appeal. It should not give advance guidance on the merits of issues reserved for the remitted hearing, including the precise scope of the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009. The tribunal must apply its procedural rules when deciding whether an oral hearing is required, including having regard to a party’s request for one.

The appellant challenged a deportation order made after his conviction and 12-month custodial sentence. The First-tier Tribunal dismissed his appeal. The Upper Tribunal identified an error of law, remade the decision, and dismissed the appeal without an oral hearing.

Permission to appeal to the Court of Appeal was granted on the procedural issue. The Secretary of State accepted that the Upper Tribunal had failed to have regard to the appellant’s request for an oral hearing and agreed that the appeal should be allowed and remitted. The appellant nevertheless sought guidance on the procedure for oral hearings and on the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009. The central issue was whether further guidance was necessary before remittal.

1. Appeal allowed and remitted. The appeal was academic because the Secretary of State accepted the Upper Tribunal’s procedural error and agreed that the matter should be reconsidered by a differently constituted tribunal.
2. Oral-hearing procedure. The Upper Tribunal’s rules provide the necessary framework for a fair determination. Rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008 requires regard to the overriding objective of dealing with cases fairly and justly. Rule 34(2) requires regard to any views expressed by a party when deciding whether to hold a hearing and what form it should take. Since the appellant’s request had not been considered, the procedural exercise had to be repeated on remittal.
3. No advance merits guidance. The Court of Appeal’s function was to decide issues necessary to resolve the appeal. It was not appropriate to determine in advance the precise ambit of the Secretary of State’s section 55 duty, or the evidence required for the Article 8 assessment, because those matters were for the Upper Tribunal on remittal. The court considered the guidance in HK (Afghanistan) v SSHD [2012] EWCA Civ 315, including the need for the Secretary of State to obtain reasonably available information relevant to the children’s best interests, but did not decide how that duty would apply on the remitted facts.
4. Final order. The matter was remitted to the Immigration and Asylum Chamber of the Upper Tribunal for consideration by a differently constituted tribunal. The form of that consideration, including whether an oral hearing should take place, remained for the Upper Tribunal.

• Court of Appeal (Civil Division): Allowed the appeal and remitted the matter to the Immigration and Asylum Chamber of the Upper Tribunal for reconsideration by a differently constituted tribunal.
• Upper Tribunal (Immigration and Asylum Chamber): On 31 October 2011, after finding an error of law in the First-tier Tribunal’s determination, remade the decision and dismissed the appeal without an oral hearing.
• First-tier Tribunal: On 3 March 2011, dismissed the appeal against the deportation order.