Rajaratnam v Secretary of State for the Home Department

When an appellate tribunal sets aside a first-instance decision for error of law, factual findings are not automatically preserved. The scope of remaking depends on the issues opened by the error-of-law decision. A fresh assessment may include the earlier evidence where it cannot sensibly be separated from updating evidence.

Findings may also be reopened by express agreement, acquiescence or implied agreement. A represented party who allows the hearing to proceed without objection will ordinarily be unable to raise the procedural complaint for the first time on appeal. Rules requiring notice of new evidence do not require advance notice of matters to be explored in cross-examination of existing witnesses.

The appellant challenged his deportation to Sri Lanka following a conviction for conspiracy to rob. His case relied on family life with his wife under article 8 ECHR and was brought in the context of automatic deportation under section 32(5) of the UK Borders Act 2007.

The First-tier Tribunal dismissed the appeal. The Upper Tribunal set that decision aside for error of law and, on remaking the decision, dismissed the appeal again. The appellant appealed to the Court of Appeal, arguing that factual findings about the marriage had been preserved, that the rehearing was procedurally unfair, and that further witness statements should have been admitted. The central issues were the permissible scope of remaking and the fairness of the procedure adopted.

1. Appeal dismissed. Lord Justice Richards gave the leading judgment, with Lord Justices Pitchford and McFarlane agreeing.
2. Reopening factual findings. The broad approach stated in DK (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1246 remained relevant, but the First-tier Tribunal’s findings about the relationship had not been impliedly preserved. The Upper Tribunal’s error-of-law decision identified inadequate reasoning on the Article 8 assessment, insufficient findings about the wife, and a lack of factual material. Those matters opened the factual issues for fresh assessment. The updating evidence could not sensibly be considered separately from the earlier evidence.
3. Agreement and acquiescence. NJ (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 77 supported the proposition that express agreement permits factual findings to be revisited. The same consequence applied to clear acquiescence or implied agreement. The appellant’s counsel had allowed the evidence and cross-examination to cover the relationship without objection and had later made submissions on that evidence.
4. Procedural fairness and evidence. Any complaint about the scope of questioning was too late. If the appellant had been surprised, he was represented and did not object at the hearing. Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 and paragraphs 4.1 to 4.3 of the relevant Practice Direction concerned notice of evidence not previously before the First-tier Tribunal. They did not require notice of the matters to be explored in cross-examination of existing witnesses. The refusal to admit further witness statements was within the reasonable ambit of the judge’s discretion, since oral evidence was complete, the resumed hearing was arranged for the OASys report and submissions, and no earlier unfairness required reopening the evidence.
5. The Court of Appeal did not need to decide whether the Upper Tribunal’s alternative proportionality finding independently sustained the dismissal.

• Court of Appeal (Civil Division) — [2014] EWCA Civ 8: appeal dismissed.
• Upper Tribunal (Immigration and Asylum Chamber) — the First-tier Tribunal decision was set aside for error of law; on remaking the decision, Upper Tribunal Judge Kekić dismissed the appeal in a determination dated 19 November 2012, reference DA/00478/2011.
• First-tier Tribunal — the appellant’s appeal against the deportation order was dismissed in a determination promulgated on 10 October 2011.