Mahmood v Secretary of State for the Home Department

In immigration appeals, the Upper Tribunal is an expert tribunal. It may take a broad view of what constitutes an error of law and examine closely the inferences drawn from factual material. On a renewed application for permission to appeal, the Court of Appeal will not interfere merely because the First-tier Tribunal’s conclusion was arguably open to it. The question is whether the Upper Tribunal gave clear reasons for finding an error of law and whether that conclusion was itself open to the judge. An abandoned argument that the approach under the Immigration Rules and Article 8 had been displaced by later authority was not the basis of the decision.

The applicant challenged refusal of leave to remain based on family and private life. The First-tier Tribunal allowed his appeal under paragraph 276ADE (vi) of the Immigration Rules, alternatively under Article 8, despite recording evidential and credibility concerns. The Upper Tribunal allowed the Secretary of State’s appeal, found errors of law, remade the decision and dismissed the applicant’s appeal. A further Upper Tribunal judge refused permission to appeal. The Court of Appeal considered the renewed application, including whether the Upper Tribunal had impermissibly substituted its own factual assessment and whether the documentary and Article 8 grounds disclosed an arguable error.

The renewed application for permission to appeal was refused.

1. The written challenge that Nagre v SSHD [2013] EWHC 720 (Admin) had ceased to be good law because of MM (Lebanon) [2014] EWCA Civ 985 was not pursued. Lord Justice Beatson considered that course correct. The decision in Singh [2015] EWCA Civ 74 showed that MM did not undermine Nagre, and the approach in Nagre had in any event been endorsed in MF (Nigeria) [2003] EWCA Civ 1192.
2. The remaining submission was that the Upper Tribunal had substituted its own view for that of the First-tier Tribunal without asking whether the First-tier Tribunal’s decision was open to it. That submission failed. The Upper Tribunal gave clear reasons for finding an error of law, including the First-tier Tribunal’s treatment of serious evidential shortcomings and its conclusions about the applicant’s circumstances.
3. The Upper Tribunal is an expert tribunal. In accordance with the observations of Lord Carnwath in Jones v Supreme Court, it may take a broad view of what constitutes an error of law and look closely at inferences from factual material.
4. The Court of Appeal was not persuaded that the experienced Deputy Upper Tribunal Judge was precluded from reaching his conclusion. Permission was therefore refused.

• Court of Appeal (Civil Division: The renewed application for permission to appeal was refused.
• Upper Tribunal (Immigration and Asylum Chamber): On 2 May 2014, the Secretary of State’s appeal was allowed. The decision was remade and the applicant’s appeal was dismissed.
• First-tier Tribunal: On 4 March 2014, the applicant’s appeal against refusal of leave to remain was allowed.
• Secretary of State: On 11 June 2013, leave to remain was refused.