PF (Nigeria) v The Secretary of State for the Home Department

A presiding tribunal member’s casting vote is a discretionary power, not an automatic means of resolving disagreement. It cannot properly be exercised where panel members fundamentally disagree on primary facts which are decisive of the outcome. Such use is an error of law.

In deportation cases, exceptional circumstances describe the very compelling reasons required to outweigh the heavily weighted public interest in deportation. They do not create a separate legal test. The ordinary harmful effects of deportation on a partner and children will not usually suffice. Progress towards rehabilitation is generally irrelevant to Article 8 proportionality, unless exceptional circumstances make it material.

PF, a Nigerian citizen with a serious history of drug offending, appealed against a decision of the Upper Tribunal (Immigration and Asylum Chamber). The Upper Tribunal had allowed the Secretary of State’s appeal from a First-tier Tribunal decision which had allowed PF’s Article 8 appeal against deportation.

The First-tier Tribunal panel was divided. Its presiding judge used a casting vote to prefer findings that PF was rehabilitating and had meaningful family relationships in the United Kingdom. After the First-tier decision, Home Office officials mistakenly represented that PF would receive leave to remain, although the Secretary of State’s appeal was continuing.

The Upper Tribunal set aside the First-tier decision and remitted the appeal to a differently constituted panel. The issues were whether the casting vote was lawfully exercised, whether the disclosure of dissent was material, and whether the erroneous representations created an enforceable legitimate expectation.

1. Appeal dismissed unanimously. The Upper Tribunal was right to set aside the First-tier Tribunal’s determination and remit the deportation appeal for a fresh hearing before a differently constituted panel.

2. Article 8 of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 gave the presiding member a casting vote, but did not require or authorise its exercise regardless of the disagreement’s nature and extent. The panel’s disagreement concerned decisive primary facts, including the genuineness and extent of family relationships and whether PF was genuinely rehabilitating. If the lay member’s views were correct, the appeal could not succeed. The presiding judge therefore erred in law by casting a vote and by treating the disagreement as confined to legal assessment.

3. The First-tier Tribunal also erred by revealing the dissent, contrary to paragraph 10.2 of the Practice Statements. That error alone was immaterial because it did not alter the order made, although it exposed the separate error in exercising the casting vote.

4. The court held that the Upper Tribunal should not have introduced and determined legitimate expectation in its statutory appeal jurisdiction. Under sections 12(1) and 12(2) of the Tribunals, Courts and Enforcement Act 2007, its task was to decide whether the First-tier Tribunal had erred in law. A claim based on later representations by the Secretary of State did not affect that decision and should have been pursued by judicial review. In any event, the claim failed: the representations resulted from a genuine error, were promptly corrected, caused no proved detriment, and could not outweigh the public interest in deciding deportation on its merits.

5. As further grounds, the First-tier Tribunal had not identified compelling or exceptional facts capable of outweighing the public interest in deportation. Applying MF (Nigeria), [2013] EWCA Civ 544, exceptional circumstances form part of the Article 8 proportionality balance. The usual harm to children and a partner did not meet that standard. Applying SE (Zimbabwe), [2014] EWCA Civ 256, progress through rehabilitation was generally not an Article 8 factor, although risk of reoffending remained relevant.

1. Court of Appeal (Civil Division) Dismissed PF’s appeal and upheld the Upper Tribunal’s decision to set aside and remit the First-tier Tribunal determination: [2015] EWCA Civ 251.
2. Upper Tribunal (Immigration and Asylum Chamber) Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision, and remitted the appeal for a fresh hearing before a differently constituted First-tier Tribunal.
3. First-tier Tribunal Allowed PF’s Article 8 appeal against deportation in a determination promulgated on 10 July 2013.