AEB v Secretary of State for the Home Department

Where an error of law has deprived a party of a fair hearing before the First-tier Tribunal, the Upper Tribunal should normally remit the case for a fresh hearing. A decision to retain and remake the case requires cogent and adequately expressed reasons.

For a serious foreign criminal, “very compelling circumstances” under section 117C(6) of the Nationality, Immigration and Asylum Act 2002 are assessed by weighing all relevant circumstances against the very strong but flexible public interest in deportation. The effects on several children must be assessed individually and collectively as part of the totality of the circumstances. No mathematical or incremental weighting applies merely because more than one child is affected.

The appellant challenged a deportation order made after he received a four-year sentence for dishonesty offences. His Article 8 claim relied principally on his relationship with three British children, each of whom had significant disabilities and special needs.

The First-tier Tribunal dismissed his appeal after refusing an adjournment for expert social-work evidence. The Upper Tribunal held that this had deprived him of a fair hearing, set aside the decision without preserving any factual findings, but retained and remade the appeal. It found that deportation would be unduly harsh for the children but that there were no very compelling circumstances under section 117C(6) of the Nationality, Immigration and Asylum Act 2002.

The issues were whether the Upper Tribunal should have remitted the case and whether it had applied the statutory test correctly.

1. Appeal allowed on Ground 1. Where an error of law has deprived a party of a fair hearing before the First-tier Tribunal, paragraph 7.2(a) of the applicable Practice Statements negatives the normal assumption that the Upper Tribunal will remake the decision. Remittal is the normal course, although it is not an immutable rule. A different course requires cogent and adequately expressed reasons.

2. The Upper Tribunal failed to consider paragraph 7.2(a). Its reliance on the narrow scope of the issues also misconstrued paragraph 7.2(b), which concerns the nature or extent of necessary judicial fact-finding. All factual findings had been set aside, and the appellant’s relationship with his children remained in issue. No good reason had been shown for retaining the case.

3. The error was material. Retention deprived the appellant of a fair first-instance hearing, the ordinary error-of-law appeal to the Upper Tribunal, and the opportunity to pursue a further appeal without immediately satisfying the more stringent second-appeal test. JD (Congo) [2012] EWCA Civ 327 concerned proceedings which had not been rendered unfair and did not determine the present situation.

4. Ground 2 dismissed. Section 117C(6) of the Nationality, Immigration and Asylum Act 2002 requires all relevant circumstances to be weighed against the very strong, though flexible, public interest in deportation. A four-year sentence was not necessarily of borderline seriousness. The unreduced sentence, rather than the reduction for guilty pleas, demonstrated the seriousness of the offending.

5. The effect of deportation on three children rather than one was material, but attracted no mathematical or prescribed incremental weight. The decision-maker had to assess the needs and effects relating to each child and their combined impact within the totality of the circumstances. The Upper Tribunal had expressly done so and had made no error of law in its approach to very compelling circumstances.

6. The Upper Tribunal’s judgment was set aside. The appeal was remitted to the First-tier Tribunal for de novo reconsideration. Nicola Davies LJ and Underhill LJ agreed with Stuart-Smith LJ.

1. Court of Appeal (Civil Division): By [2022] EWCA Civ 1512, allowed the appeal on the remittal ground, set aside the Upper Tribunal’s judgment and remitted the case to the First-tier Tribunal for reconsideration de novo. The challenge to the Upper Tribunal’s approach to section 117C(6) of the Nationality, Immigration and Asylum Act 2002 was dismissed.
2. Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal’s decision for errors of law which had caused procedural unfairness. It preserved no factual findings, retained and remade the appeal, and dismissed it in a decision promulgated on 16 February 2021.
3. First-tier Tribunal: Dismissed the appeal against refusal of the human-rights claim and the deportation decision. Its refusal to adjourn for expert social-work evidence was subsequently held to have deprived the appellant of a fair hearing.