Ali v Secretary of State for the Home Department

On a renewed application for permission to appeal, an applicant who accepts errors of law in a First-tier Tribunal decision cannot ordinarily challenge the Upper Tribunal’s assessment that those errors were material. The Court of Appeal should be very reluctant to interfere with a specialist tribunal’s assessment of materiality, and the second-appeal threshold must also be met. Permission may nevertheless be confined to a distinct challenge to the Upper Tribunal’s own proportionality assessment when remaking the decision, including whether material factual differences required live evidence.

This was a renewed application by a Pakistani national against the Upper Tribunal’s refusal of permission to appeal. The Upper Tribunal had allowed the Secretary of State’s appeal from a First-tier Tribunal decision which had allowed the applicant’s appeal against refusal to revoke a deportation order.

The proposed grounds concerned the materiality of errors accepted in the First-tier Tribunal’s decision and the Upper Tribunal’s approach to the proportionality assessment when remaking the decision. The latter issue included factual differences concerning ties to Pakistan, family circumstances, the applicant’s period of non-offending and whether live evidence was required.

1. The application was granted only on the second ground. Permission was refused to challenge the Upper Tribunal’s conclusion that the First-tier Tribunal had made material errors of law. The applicant’s representatives accepted that errors existed. In those circumstances, the proposed challenge did not disclose an arguable ground, still less satisfy the second-appeal threshold.
2. The Upper Tribunal is a specialist tribunal. The Court of Appeal should be very reluctant to interfere with its assessment of whether an error of law is material, applying the approach identified in Jones in the Supreme Court.
3. The Upper Tribunal had found that the First-tier Tribunal’s failure to apply MF (Nigeria) [2013] EWCA Civ 1192 had made its Article 8 assessment deficient, including through the absence of findings concerning undue harshness or compelling reasons. Permission was not granted to reopen whether the First-tier Tribunal had erred in that respect.
4. Permission was granted to consider whether the Upper Tribunal had erred in its approach to proportionality when remaking the decision, and whether the differences between the earlier and later factual findings created sufficient tension to require live evidence.

The renewed application was therefore granted to that extent and the appeal was confined accordingly.

1. Court of Appeal (Civil Division): Kitchin LJ refused permission on the papers on 21 November 2014. On renewal, Beatson LJ granted permission on the second ground only and confined the appeal accordingly.
2. Upper Tribunal (Immigration and Asylum Chamber): On 8 April 2014 it allowed the Secretary of State’s appeal from the First-tier Tribunal and found material errors in the First-tier Tribunal’s decision. On 3 July 2014 it refused permission to appeal to the Court of Appeal.
3. First-tier Tribunal: On 3 February 2014 it allowed the applicant’s appeal against the refusal to revoke the deportation order.