Herrera v The Secretary of State for the Home Department

The former version of paragraph 276ADE (1) (vi) in the Immigration Rules required a rounded, evaluative assessment of whether an applicant retained ties to the country of return. Relevant matters included social, cultural and family connections, continuing connection to life there, and whether ties could provide support on return. The question was whether re-establishment would be unjustifiably harsh. An appellate tribunal must review the first-instance decision for legal error, not substitute its own assessment of the weight of evidence. This restraint is particularly important where the first-instance judge heard oral evidence. A conclusion supported by accepted evidence is not perverse merely because another judge might have reached a different view.

Jose Herrera, an Argentine national, had lived in the United Kingdom since 1999 as a student and then as an overstayer. He applied for leave to remain on private-life grounds. The First-tier Tribunal allowed his appeal under the former version of paragraph 276ADE (1) (vi), finding that he had no meaningful social, cultural or family ties to Argentina. It also made an alternative finding under article 8 of the European Convention on Human Rights.

The Upper Tribunal allowed the Secretary of State’s appeal, holding that the First-tier Tribunal had not adequately explained its conclusion and had failed to respect the high threshold. Before the Court of Appeal, Herrera argued that the Upper Tribunal had focused on the later very-significant-obstacles test or had impermissibly reweighed the evidence. The central issue was whether the First-tier Tribunal had made an error of law.

Appeal allowed. The Court of Appeal restored the First-tier Tribunal’s decision.

1. The applicable version of paragraph 276ADE (1) (vi) was the version in force when the Secretary of State refused the application. The later requirement of very significant obstacles to integration was materially different and did not govern the appeal.
2. The First-tier Tribunal’s reasons on the applicable no-ties test were clear. It accepted Herrera’s evidence about his limited remaining connections with Argentina and concluded that he had no meaningful social, cultural or family ties there. Although the judge also addressed the later integration test, the Court did not need to decide whether that paragraph formed part of the essential reasoning.
3. The exercise under paragraph 276ADE (1) (vi), as explained in Ogundimu v Secretary of State for the Home Department [2013] UKUT 00060 (IAC) and Akpan v Secretary of State for the Home Department [2015] EWCA Civ 1266, required a rounded evaluation of all relevant circumstances. Different judges could reasonably reach different conclusions in such an assessment.
4. The Upper Tribunal’s review at paragraphs 20 to 24 amounted in substance to a fresh assessment of the evidence. Its disagreement with the weight given to matters such as employment prospects and continuing connections did not establish an error of law. Inferring misdirection merely because the conclusion was considered insufficiently justified was, in substance, a finding of perversity. The First-tier Tribunal’s conclusion was one to which it was entitled to come, particularly since it had heard oral evidence.
5. As general procedural guidance, judges should ordinarily include at least a short summary of legal submissions and authorities relied on, rather than leaving those matters only in a manuscript record of proceedings. Order: appeal allowed.

1. Court of Appeal (Civil Division) — In [2018] EWCA Civ 412, the appeal was allowed and the First-tier Tribunal’s decision was restored.
2. Upper Tribunal (Immigration and Asylum Chamber) — On 21 July 2015, the Secretary of State’s appeal was allowed.
3. First-tier Tribunal — On 3 March 2015, Herrera’s appeal against refusal of leave to remain was allowed under the former paragraph 276ADE (1) (vi).