The Secretary of State for the Home Department v Devani

The slip rule permits correction where a promulgated order fails to express the tribunal’s actual decision, even where correction reverses the stated outcome. It does not permit a later change of mind. A party who has obtained the actual order sought cannot appeal merely to challenge adverse reasoning. A respondent relying on an unsuccessful ground must ordinarily give advance notice under the procedural rules or otherwise, but the tribunal must exercise its discretion by considering prejudice and the public interest.

In extradition cases, formal assurances from a requesting state are approached on a presumption of good faith. Material capable of displacing them must have special force. An unverified and anecdotal report concerning another detainee could not rationally undermine specific assurances accepted by a court.

Mr Devani, a Kenyan national facing extradition, appealed the refusal of his asylum claim. A prior Divisional Court decision had rejected his article 3 challenge to extradition after accepting Kenyan assurances about his detention at Kamiti prison: [2015] EWHC 3535 (Admin).

The First-tier Tribunal found that a news report about the treatment of another extraditee created a real risk that those assurances would not be honoured. Its formal notice nevertheless stated that the article 3 appeal was dismissed. The Upper Tribunal treated that as a slip, substituted an allowed article 3 appeal, and declined to entertain the Secretary of State’s substantive challenge because no appeal, rule 24 response, or skeleton argument had been filed.

The Secretary of State appealed. The issues were whether that procedural ruling was erroneous, whether the Court of Appeal should re-make the decision, and whether the First-tier Tribunal’s article 3 finding was legally open to it.

1. Appeal allowed. The Upper Tribunal erred by refusing to consider the Secretary of State’s challenge to the First-tier Tribunal’s intended article 3 decision. The Court set aside that decision, re-made it, and dismissed Mr Devani’s appeal against the Secretary of State’s decision.

2. Underhill LJ held, on a preliminary point, that the slip rule corrects a failure of expression where the promulgated order does not state what the tribunal actually intended. It may therefore correct an order even if the correction reverses its apparent effect. It cannot be used where the tribunal originally intended the order made but later wishes to make a different substantive decision. Katsonga was wrong insofar as it treated reversal of the order’s effect as itself outside the rule’s scope.

3. The Secretary of State could not appeal an order which, as recorded, gave her the outcome sought. Section 11(2) of the Tribunals, Courts and Enforcement Act 2007 gives a right of appeal only to a party who has lost as to the relevant part of the tribunal’s actual order. Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 requires a respondent who wishes to rely on a ground unsuccessful below to provide a response, construed purposively. Although the response deadline had not expired here, fairness and the overriding objective required advance notice by response, correspondence, or skeleton argument.

4. The absence of notice did not justify excluding the challenge. Mr Devani suffered no prejudice because his representatives anticipated and answered it. The challenge concerned whether formal assurances by Kenya, accepted in extradition proceedings, could be displaced. The public interest in an effective extradition system made it wrong to leave that serious finding unexamined.

5. Nicola Davies LJ held that remittal was disproportionate. Under section 14 of the Tribunals, Courts and Enforcement Act 2007, the Court could re-make the decision. Assurances from a requesting state are assessed on a presumption of good faith, and evidence alleging their non-observance must have special force. The unverified online report about another detainee was anecdotal, unreliable in part, and incapable of undermining the specific Kenyan assurances. The First-tier Tribunal’s contrary assessment of its weight was perverse. Mr Devani’s extradition would not breach article 3 rights. Males LJ agreed with both judgments.

• Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed in [2020] EWCA Civ 612. The Court set aside the Upper Tribunal’s decision, re-made it, and dismissed Mr Devani’s appeal against the Secretary of State’s decision on article 3 grounds.
• Upper Tribunal (Immigration and Asylum Chamber): On 27 February 2019, Deputy Upper Tribunal Judge Latter held that the First-tier Tribunal’s formal dismissal of the article 3 appeal was a slip, substituted an allowed appeal, and declined to consider the Secretary of State’s substantive challenge.
• First-tier Tribunal (Immigration and Asylum Chamber): On 22 November 2018, Judge Sullivan dismissed the asylum appeal. The judge found a real article 3 risk but recorded the article 3 appeal as dismissed; that recording was accepted to be an accidental slip.
• High Court (Divisional Court): In the extradition proceedings, the court dismissed Mr Devani’s challenge after accepting specific Kenyan assurances concerning detention conditions: [2015] EWHC 3535 (Admin).