SYR v The Secretary of State for the Home Department

Permission to appeal judges must ensure that they have the requisite documents before deciding whether permission should be granted. They should not grant permission because relevant material is unavailable. Where material errors of law invalidate all factual findings, and the necessary fact-finding exercise is extensive, the appropriate course is ordinarily to set aside the decision and remit the appeal for a fresh hearing.

The appellant appealed with permission against the dismissal by First-tier Tribunal Judge Lever of his protection and human rights appeals. The respondent accepted that the First-tier Tribunal decision contained errors of law and could not stand.

The parties differed on whether the appeal should be retained in the Upper Tribunal or remitted to the First-tier Tribunal. The Upper Tribunal also considered an observation by the First-tier Tribunal permission judge that the complete digital file, including a lawyer’s letter, was unavailable.

1. The respondent accepted, and the Upper Tribunal agreed, that errors identified in the grounds of challenge meant that the First-tier Tribunal decision could not stand.
2. Because of those errors, none of the First-tier Tribunal judge’s factual findings could remain. The required fact-finding exercise was therefore total.
3. Having regard to the nature and extent of that exercise, the appropriate course was to remit the appeal rather than retain it in the Upper Tribunal.
4. A judge deciding permission to appeal, whether in the First-tier Tribunal or the Upper Tribunal, must satisfy himself or herself that the requisite materials are available to make a proper decision. A judge should not grant permission on the basis that the necessary documentation is absent. The existence of other errors in the decision does not condone that approach.
5. The First-tier Tribunal decision was set aside. The appeal was remitted to the First-tier Tribunal de novo for a fresh hearing on all issues. An anonymity direction was continued under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

• First-tier Tribunal: First-tier Tribunal Judge Lever dismissed the appellant’s protection and human rights appeals following a hearing at Newport on 2 September 2020.
• Upper Tribunal (Immigration and Asylum Chamber): The decision was set aside for errors of law and the appeal was remitted to the First-tier Tribunal for a fresh hearing on all issues.