Awuku v Secretary of State for the Home Department

An appellate court has a broad discretion to allow an appeal by consent without deciding the merits where there are good and sufficient reasons. The discretion concerns both the parties’ interests and the public interest. A merits decision is appropriate where the appeal raises an important, recurring or unsettled point of law, particularly where a consent disposal would create uncertainty. The court should also consider whether it is institutionally appropriate to decide the issue without full adversarial argument. Where both parties advance substantially the same position, the appeal may be adjourned so that an advocate to the court can present the opposing arguments.

The appellant appealed from an Upper Tribunal decision allowing the Secretary of State’s appeal against a First-tier Tribunal decision. The First-tier Tribunal had accepted that a proxy marriage celebrated in Ghana made the appellant the spouse of an EEA national for the purposes of regulation 7 of the Immigration (European Economic Area) Regulations 2006, and had also considered his article 8 claim.

The Upper Tribunal allowed the Secretary of State’s appeal, applying Kareem [2014] UKUT 24 and holding that recognition by the EEA national’s home state, Germany, had to be established. On appeal, both parties agreed that the Upper Tribunal’s approach was wrong and invited the Court of Appeal to allow the appeal and overrule Kareem. The central issue was whether the court should decide the merits despite the parties’ agreement, or adjourn to obtain full adversarial argument.

1. Appeal adjourned. The court declined to allow the appeal immediately by consent. The public interest required a decision on the important legal issue after full argument, because a consent disposal would leave uncertainty in immigration law. The court therefore adjourned the appeal and invited the Attorney General to appoint an advocate to the court. Lloyd Jones LJ delivered the judgment, with Gloster LJ and Cranston J agreeing.
2. Consent disposal. Paragraph 6.4 of Practice Direction 52A confers a wide discretion. It permits an appeal court to set aside or vary a lower court’s order by consent without determining the merits where there are good and sufficient reasons. The court is concerned with the interests of the parties and the public interest. KW v Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054 was treated as explaining that the lower judge has no entitlement to a merits decision.
3. Merits decision. A merits judgment was appropriate because the issue concerning proxy marriages, EU free movement rights and UK immigration law was important and recurring. Kareem was widely known and had been applied in the Upper Tribunal and First-tier Tribunal, but it could not be said to be clearly wrongly decided. Simply allowing the appeal would therefore have introduced substantial uncertainty.
4. Adversarial assistance. The court was concerned that both parties were advancing virtually identical positions. Although counsel had assisted the court, the issues of private international law, EU law and immigration law required fuller investigation. The appeal was consequently adjourned for further directions and appointment of an advocate to the court.

• Court of Appeal (Civil Division) — The court adjourned the appeal and declined to determine it by consent without full adversarial argument.
• Upper Tribunal (Immigration and Asylum Chamber) — On 3 June 2015, Upper Tribunal Judge Eshun allowed the Secretary of State’s appeal against the First-tier Tribunal decision, applying Kareem [2014] UKUT 24.
• First-tier Tribunal — On 12 March 2014, Judge Raikes allowed the appellant’s appeal against the Secretary of State’s refusal of a residence card and accepted that he was the spouse of an EEA national for regulation 7 purposes.