AK (Zimbabwe) & Ors v Secretary of State for the Home Department

In a renewed application for permission to appeal in a deportation case, an imperfectly structured First-tier Tribunal decision does not disclose a material error of law merely because it uses loose language or refers to a classic Article 8 approach. The decision must be read as a whole. If it has had regard to the relevant provisions of the 2002 Act, paragraphs 398 to 399A of the Immigration Rules, and the exceptional nature of departure from removal, the Court of Appeal will not interfere at the second-appeal permission stage unless the proposed appeal arguably satisfies that test or there is another compelling reason. A generous, fact-specific determination is not, without more, irrational or unsustainable, and should not be treated as a precedent.

The first respondent, a Zimbabwean national convicted of false-document offences and sentenced to 16 months' imprisonment, faced deportation. His asylum claim failed, but the First-tier Tribunal allowed the appeal on Article 8 grounds in a determination dated 15 July 2014. The Secretary of State appealed to Upper Tribunal Judge Craig, who rejected the appeal on 7 October 2014, finding no material error of law, although considering the determination generous.

The Secretary of State renewed an application for permission to appeal. The central issue was whether the First-tier Tribunal had unlawfully applied a classical Article 8 approach instead of the statutory and Rules framework, and whether the second-appeal test was met.

The renewed application for permission to appeal was refused.

1. The First-tier Tribunal determination was poorly structured and may have been generous, but it had to be read as a whole. A heading referring to a classic Article 8 approach did not establish that the tribunal had ignored the applicable framework. Proportionality forms part of an ordinary Article 8 assessment, while the tribunal also directed itself by reference to exceptionality.
2. The determination showed that the tribunal had been referred to the relevant Rules and to the provisions of the amended 2002 Act, including the public interest in removal. The Upper Tribunal was entitled to find that the tribunal had appropriately engaged with MF (Nigeria) and the exceptional requirement. Read as a whole, the determination also showed that the tribunal had considered each appellant individually, including the consequences of removing the first appellant while other family members remained.
3. The determination was not demonstrably and plainly irrational or unsustainable. The proposed appeal did not satisfy, even arguably, the applicable second-appeal test, and there was no other compelling reason to grant permission. Respect was due to the experienced Upper Tribunal judge who had found no material error of law.
4. The First-tier Tribunal determination was expressly confined to its particular facts. Its generous outcome was not to be treated as a precedent.

• First-tier Tribunal: On 15 July 2014, the asylum claim failed but the appeal was allowed on Article 8 grounds.
• Upper Tribunal: On 7 October 2014, Upper Tribunal Judge Craig rejected the Secretary of State’s appeal, finding no material error of law, while regarding the determination as generous.
• Court of Appeal (Civil Division): On 9 December 2015, in [2015] EWCA Civ 1417, the renewed application for permission to appeal was refused.