AEB v Secretary of State for the Home Department

The Court of Appeal allowed the appellant's challenge in part. It held that the Upper Tribunal (UT) had erred in remaking the First-tier Tribunal's (FtT) decision rather than remitting the case, because the FtT hearing had been rendered unfair and the UT failed to apply paragraph 7.2(a) of the Immigration and Asylum Chambers Practice Statements. The UT also misapplied paragraph 7.2(b) by treating the "limited scope of the issues" as justifying remaking, rather than examining the nature and extent of any necessary judicial fact-finding.

The court rejected the appellant's separate challenge to the UT's assessment of "very compelling circumstances" under section 117C(6) of the Nationality, Immigration and Asylum Act 2002, concluding that the UT had properly applied the statutory framework and relevant authorities and had adequately weighed the totality of the children's needs.

Background and procedural posture

• The appellant, a Nigerian national, received a four-year sentence in April 2017 for offences of dishonesty and was subject to automatic deportation under the statutory regime. He advanced an Article 8 claim raising his private and family life, engaging Part 5A (sections 117A–117D) of the Nationality, Immigration and Asylum Act 2002 and in particular the test in section 117C(6) ("very compelling circumstances").
• The Secretary of State refused the Article 8 claim on 17 October 2018; the FtT dismissed the appellant's appeal after refusing an adjournment sought to obtain an independent social work report on the children; the UT set aside the FtT decision for errors of law, concluded the FtT hearing had been unfair, but remade the decision and dismissed the appeal on the merits. The appellant brought a second appeal to this Court.

Issues framed

• Ground 1: whether the UT misdirected itself in exercising its section 12(2) powers under the Tribunals, Courts and Enforcement Act 2007 by remaking the decision rather than remitting to the FtT, including whether it applied paragraph 7.2(a) and (b) of the Practice Statements correctly.
• Ground 2: whether the UT erred in law in its assessment of "very compelling circumstances" under section 117C(6), including the weight to be given to a four-year sentence at the bottom of the statutory threshold and the cumulative weight of the effect on three qualifying children.

Court's reasoning and holdings

• On Ground 1 the Court analysed the UT's discretion under section 12 TCEA 2007, the content and status of the Practice Directions and Practice Statements, and authority (including MM (unfairness) Sudan) establishing that where an FtT hearing is set aside as unfair the normal course is to remit to ensure an uncontaminated two-tier process. The Secretary of State conceded departure from paragraph 7.2(a); the Court held that the UT also misapplied paragraph 7.2(b) (confusing "scope of issues" with the required enquiry into the nature and extent of judicial fact-finding). The UT's failure was material and deprived the appellant of the protections of a fair two-tier process. The Court allowed the appeal on this ground and remitted the matter to the FtT for a de novo reconsideration.
• On Ground 2 the Court reviewed the statutory test in sections 117A–117D and the established authorities on structure and balancing (including HA (Iraq), Hesham Ali, NA (Pakistan) and Akinyemi). It concluded the UT had applied the correct approach, considered the totality of the children's needs (both individually and together), and reasonably concluded that the evidence did not establish "very compelling circumstances" over and above Exceptions 1 and 2. This ground was dismissed.

Disposition: appeal allowed in part; UT judgment set aside and the case remitted to the FtT to be heard afresh.

Appeal allowed in part. The court held that the UT erred in remaking the FtT decision rather than remitting it when the FtT hearing had been rendered unfair and the UT failed to apply paragraph 7.2(a) of the Practice Statements or properly engage with paragraph 7.2(b); that error was material and deprived the appellant of the benefits of a fair two-tier process, so the UT's decision was set aside and the case remitted to the FtT for rehearing. The court dismissed the appellant's challenge to the UT's assessment of "very compelling circumstances" under section 117C(6), finding no legal error in the UT's balancing of the children's needs against the public interest in deportation.

FtT dismissed the appellant's appeal against the Secretary of State's decision of 17 October 2018. The UT set aside the FtT decision for errors of law (promulgated 16 February 2021) but remade the decision and dismissed the appeal. The appellant's second appeal to the Court of Appeal ([2022] EWCA Civ 1512) succeeded in part; the Court set aside the UT judgment and remitted the case to the FtT for a de novo hearing.