Secretary of State for the Home Department v VV

A challenge to the adequacy of a First-tier Tribunal's reasons must identify a substantial issue raised below and show either that it was not resolved or that the reasons are so unclear that they may conceal an error of law. A tribunal decision must be read fairly, as a whole and without excessive legalism. It is wrong to isolate passages and infer that relevant matters were ignored when the decision shows that they were considered.

Grounds of appeal must particularise the alleged failure by reference to the material before the First-tier Tribunal. They must not disguise disagreement with an evaluative merits judgment as a reasons challenge. New grounds raised shortly before a hearing may properly be refused where they cause unfairness or require an adjournment.

The Secretary of State appealed against a First-tier Tribunal decision, promulgated on 22 December 2014, allowing VV's appeal against a deportation order made under the Immigration (European Economic Area) Regulations 2006.

VV, a Lithuanian national with a permanent right of residence, had received a custodial sentence for sexual assault. The First-tier Tribunal concluded that deportation was not justified on serious grounds of public policy or public security. It also made abbreviated observations on proportionality and Article 8, although those observations were unnecessary to its disposition.

The principal issue was whether the First-tier Tribunal had erred by failing to take account of the seriousness and circumstances of the offence when assessing future risk and the serious-grounds threshold.

1. Appeal dismissed. The First-tier Tribunal made no error of law. Its decision allowing VV's appeal under the Immigration (European Economic Area) Regulations 2006 stood.
2. The Secretary of State's principal ground depended on reading two paragraphs of the First-tier Tribunal's decision as confined to the NOMS report. That was an erroneous approach. A decision must be read fairly and as a whole, not as isolated and hermetically sealed passages. Read properly, the judge had considered the whole of the earlier findings, including the seriousness of the offence, the appellant's inadequate appreciation of it, the absence of remorse, the low risk of reoffending and the medium risk of serious harm if reoffending occurred.
3. The First-tier Tribunal was entitled to conclude that the case came close to, but did not cross, the serious-grounds threshold in regulation 21(3). A different tribunal might have reached a different evaluative conclusion, but that did not disclose an error of law. The reasoning was logical and clear.
4. The Article 8 ground could not affect the result because the First-tier Tribunal had already allowed the appeal under regulation 21(3). Its Article 8 observations were expressly abbreviated and unnecessary to the disposition.
5. The Tribunal restated the principles in Save Britain’s Heritage v Secretary of State for the Environment [1991] 1 WLR 153 and South Bucks DC v Port (No 2) [2004] 1 WLR 1953. A reasons challenge requires a substantial, principal controversial issue and either an unresolved dispute or reasoning so unclear that it may conceal legal error. Particularity is context-dependent, and adverse inferences of legal error are not readily drawn.
6. The Tribunal also gave procedural guidance. Parties should reassess whether permitted grounds remain genuinely arguable, particularly after a response. Late new grounds may be refused where they unfairly prejudice the other party or necessitate an adjournment.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State's appeal was dismissed. The First-tier Tribunal's decision allowing the appeal against deportation under the Immigration (European Economic Area) Regulations 2006 was upheld.
• First-tier Tribunal: Decision promulgated on 22 December 2014. It allowed VV's appeal, finding that the serious-grounds threshold was not met.