Lowe v The Secretary of State for the Home Department

On a second appeal, the Court of Appeal held that an appellate tribunal must not substitute its own assessment for a first-instance tribunal’s broad evaluative judgment on whether deportation would create very significant obstacles to integration. The appellate task is to decide whether the conclusion was legally open on the evidence and issues argued, not to re-try the case or introduce new factual considerations. Particular weight must be given to the first-instance judge’s assessment of oral evidence and the overall impression made by the case. A concise judgment is sufficient if it identifies the material facts and basis of decision. The appeal was allowed and the First-tier Tribunal’s decision restored.

The appellant, a Jamaican national who had lived in the United Kingdom since the age of three, challenged a deportation order made after his conviction for possession of crack cocaine with intent to supply and possession of a bladed article. The Secretary of State accepted that he had been lawfully resident in the United Kingdom for most of his life and was socially and culturally integrated there, but rejected the private-life exception because there were said to be no very significant obstacles to integration in Jamaica.

The First-tier Tribunal allowed the appeal under Exception 1 in section 117C(4) of the Nationality, Immigration and Asylum Act 2002. The Upper Tribunal allowed the Secretary of State’s appeal, found the First-tier Tribunal’s decision irrational and remade the decision. The central issue was whether the Upper Tribunal had impermissibly substituted its own assessment for the First-tier Tribunal’s evaluative judgment.

1. Appeal allowed. McCombe LJ, with whom Asplin LJ agreed, held that the Upper Tribunal was wrong to find the First-tier Tribunal’s decision irrational and wrong to substitute its own assessment of whether there were very significant obstacles to integration in Jamaica. The Upper Tribunal’s decision was set aside, the First-tier Tribunal’s decision restored, and costs were ordered in the appellant’s favour.
2. The statutory test in section 117C(4)(c) of the Nationality, Immigration and Asylum Act 2002 and paragraph 399A of the Immigration Rules requires a broad evaluative judgment. Kamara v Secretary of State for the Home Department [2016] 4 WLR 152 explains that integration is a broad concept, extending beyond the ability to find work or sustain life and involving the capacity to understand, participate in and form relationships within the destination society.
3. The First-tier Tribunal had considered the issues actually raised and the evidence as a whole. It was entitled to rely on the appellant’s age, lifelong residence and education in the United Kingdom, absence of family or other connections in Jamaica, lack of independent living experience and limited financial support. Its conclusion was not irrational merely because another tribunal might have reached a different result.
4. The Upper Tribunal exceeded its appellate function. It reassessed the facts without hearing the witnesses, introduced matters not advanced before the First-tier Tribunal, and speculated about the appellant’s intelligence and supposed acquisition of street wisdom in custody. The caution in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, especially the distinction between appellate review and duplication of the trial judge’s role, applied.
5. McCombe LJ also relied on Biogen Inc v Medeva plc [1997] RPC 1: first-instance findings are necessarily surrounded by an inexpressible penumbra of emphasis, weight and nuance. Asplin LJ agreed. Phillips LJ dissented, considering that the Upper Tribunal had properly asked whether the identified factors were capable of meeting the statutory threshold and would have dismissed the appeal.

1. Court of Appeal (Civil Division) — [2021] EWCA Civ 62: appeal allowed; the Upper Tribunal’s decision was set aside and the First-tier Tribunal’s decision restored.
2. Upper Tribunal (Immigration and Asylum Chamber) — decision dated 10 April 2019: the Secretary of State’s appeal from the First-tier Tribunal was allowed; the First-tier Tribunal’s decision was set aside and the appellant’s appeal dismissed.
3. First-tier Tribunal (Immigration and Asylum Chamber) — decision dated 17 December 2018: the appellant’s appeal against refusal of his human rights claim was allowed.