UT (Sri Lanka) v The Secretary of State for the Home Department

The Upper Tribunal may set aside and remake a First-tier Tribunal decision only for an error of law. It cannot intervene merely because it disagrees with the evaluation or could express the reasoning more clearly.

Reasons must disclose, expressly or by necessary inference, the issues addressed and the factual basis of the conclusion. Appellate courts should exercise restraint before treating compressed reasoning as a misdirection.

In an Article 8 assessment, effective immigration control and the prevention of entry by deception carry appropriate, often decisive, weight. A child’s best interests and the reasonableness of expecting a qualifying child to leave the United Kingdom are assessed distinctly from the public interest, but in the context of where the parents are expected to live. The practical consequences must be assessed in the real world.

The appellant, a Sri Lankan national with indefinite leave to remain, used a false birth certificate to obtain an emergency travel document and visit Sri Lanka with his British wife and children. An Entry Clearance Officer then refused his application to return, principally under Paragraph 320(7A) of the Immigration Rules.

The First-tier Tribunal upheld the decision under the Rules but allowed the appeal under Article 8 of the ECHR. The Upper Tribunal found errors of law, set that decision aside and dismissed the Article 8 appeal when remaking it.

The sole issue before the Court of Appeal was whether the Upper Tribunal had been entitled to find an error of law in the First-tier Tribunal’s decision. The subsequent remaking was not independently challenged.

1. Appeal allowed. The Upper Tribunal’s decisions were set aside and the First-tier Tribunal’s decision allowing the Article 8 appeal was reinstated. The First-tier Tribunal had committed no error of law, so the Upper Tribunal had no power to remake its decision.

2. Under Sections 11 and 12 of the Tribunals, Courts and Enforcement Act 2007, an appeal to the Upper Tribunal is confined to a point of law. Disagreement with the First-tier Tribunal’s evaluation, or a belief that a better decision could be written, does not suffice. Appellate restraint was especially important where a specialist tribunal had performed the familiar Article 8 balancing exercise: AH (Sudan) and R (Jones) applied.

3. The First-tier Tribunal had not overlooked the appellant’s knowing use of a false document or the public interest in effective immigration control. Its detailed findings under Paragraph 320(7A), together with its express recognition of the tension between deception and family life, showed that those matters remained in the balance. Section 117B(1) of the 2002 Act gave the prevention of entry by deception appropriate and often decisive weight. Sections 117B(2) and (3) did not weigh against the appellant, while Section 117B(4) was inapplicable and his relationship with his wife therefore deserved proper weight.

4. The First-tier Tribunal’s reasons were compressed but adequate. Reasons may disclose the issues and factual basis either expressly or by inference. Read as a whole, its decision showed that Article 8 required assessment outside the Rules and that it was unreasonable to expect the British children and their mother to abandon their established life in the United Kingdom for Sri Lanka. The tribunal was not required to give reasons for its reasons or enumerate every item of evidence.

5. The children’s best interests were a distinct, primary consideration. The reasonableness of expecting them to leave the United Kingdom did not itself involve the public interest, although it had to be assessed in the context of where their parents were expected to live. Given the children’s British citizenship, education, lifelong residence and difficulty adjusting to Sri Lanka, the case could properly be treated as one of family separation. Its consequences had to be assessed in the real world.

6. Coulson LJ agreed. He added that excessive citation of authority can obscure the necessary factual analysis and that repeated attempts to appeal every decision burden judges and reduce the quality and efficiency of justice.

1. Court of Appeal (Civil Division): Allowed the appeal in [2019] EWCA Civ 1095, set aside the Upper Tribunal’s decisions and reinstated the First-tier Tribunal’s decision.
2. Upper Tribunal: By a decision issued on 19 December 2014, found errors of law in the First-tier Tribunal’s Article 8 decision and directed that it be remade. By a further decision issued on 26 August 2015, dismissed the Article 8 appeal.
3. First-tier Tribunal: By a decision issued on 28 March 2014, dismissed the appeal under Paragraph 320(7A) of the Immigration Rules but allowed it under Article 8 of the ECHR.