The Secretary of State for the Home Department v AZ

Before re-making an appeal under Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(ii), the Upper Tribunal retains jurisdiction to vary or depart from its earlier error-of-law decision. Practice Direction 3.7 restricts that power to very exceptional cases, whether or not the same judicial constitution conducts the re-making.

A delay in issuing a tribunal decision does not itself make the decision unsafe. The question is whether a nexus is shown between the delay and the safety of the findings. Permission to appeal should not ordinarily be granted on an unadvanced ground. It requires a strong prospect of success for the original appellant, or, for the Secretary of State, a ground necessary to avoid breach of an international treaty obligation; an issue of general importance may also justify permission.

The claimant, an Iranian national of Kurdish ethnicity, had succeeded before the First-tier Tribunal on asylum and human-rights grounds. The First-tier Tribunal rejected his account that his father had engaged in anti-regime activity, but found that truthful disclosure of his asylum account on return to Iran would create a real risk.

On the Secretary of State’s appeal, the Upper Tribunal set aside the risk-on-return finding but preserved the adverse credibility findings. The claimant later appealed to the Court of Appeal, which by consent remitted the case to the Upper Tribunal to reconsider whether it had jurisdiction at the re-making stage to revisit the preserved findings, particularly because of the delay in the First-tier Tribunal’s decision.

The central issues were the Upper Tribunal’s power to revisit an error-of-law decision before re-making, the legal effect of delay, and the proper approach to granting permission on a ground not advanced by the applicant.

1. The appeal required a further re-making hearing in the Upper Tribunal. The First-tier Tribunal’s decision remained set aside because its assessment of risk on return was legally flawed on its own factual findings. The challenge based on delay did not justify setting aside or disregarding those findings.

2. Under Tribunals, Courts and Enforcement Act 2007, section 12, an error-of-law decision is not finally dispositive where the Upper Tribunal has yet to re-make the appeal. It therefore has jurisdiction, before re-making under section 12(2)(b)(ii), to reconsider its earlier conclusion that the First-tier Tribunal erred in law. That conclusion follows from VOM (Error of law – when appealable) Nigeria [2016] UKUT 00410.

3. The jurisdiction is tightly confined. Practice Direction 3.7 provides that written error-of-law reasons normally form part of the final re-made determination and may be varied only in very exceptional cases. The same restraint applies where the same constitution of the Upper Tribunal re-makes the appeal. A routine attempt to reargue a point, or dissatisfaction with an earlier representative, is insufficient.

4. Delay between hearing and decision is material only if it has made the decision unsafe. Applying SS (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1391, Arusha and Demushi [2012] UKUT 80 (IAC), and Secretary of State for the Home Department v RK (Algeria) [2007] EWCA Civ 868, the Tribunal found no connection between the eight-month delay and the particular credibility findings. Those findings could stand.

5. The Tribunal granted the claimant’s application under rule 15(2A) to adduce further evidence concerning whether the document shown by his father was an arrest warrant or another form of process. The evidence had not been produced after unreasonable delay. The appeal was therefore to be re-heard on the updated factual and country evidence.

6. Permission to appeal on an unadvanced ground requires an exceptionally sound reason. Applying R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929, permission should be granted only for a ground with a strong prospect of success for the original appellant; for the Secretary of State only where necessary to prevent breach of an international treaty obligation; or possibly for an issue of general importance requiring resolution. The unadvanced delay ground should not have received permission.

• Court of Appeal: By consent, allowed the claimant’s appeal and remitted the matter to the Upper Tribunal for reconsideration of the jurisdiction ground and the related ground.
• Upper Tribunal: The earlier error-of-law decision set aside the First-tier Tribunal’s risk-on-return decision while preserving its credibility findings; the re-made decision dismissed the claimant’s asylum and human-rights appeal.
• First-tier Tribunal: Judge Dineen allowed the claimant’s appeal on asylum and human-rights grounds. That decision had no citation stated in the judgment.