Qasim Ali Raza v Secretary of State for the Home Department

The Court of Appeal dismissed the appellant's challenge to the Upper Tribunal's dismissal of his appeal against the Secretary of State's refusal of his human rights claim and related procedural directions. The court held that there is no domestic provision rendering an appeal conducted in part by video link from abroad a nullity merely because the foreign state had not given express prior permission; the Tribunal Rules explicitly permit hearings by video link. The court also held that the First-tier Tribunal applied the correct legal test under section 117C(5) of the Nationality, Immigration and Asylum Act 2002 (the "unduly harsh" test) by following the elevated threshold and evaluative approach endorsed in MK, KO and the Supreme Court in HA (Iraq).

The court considered evidence about the Home Office/FCDO practice of notifying foreign authorities and treating an absence of response as no objection, and later developments showing a move to seek express permission in some cases. That fresh evidence did not establish that the FtT's hearing was unlawful or that it misdirected itself in law. The FtT's factual findings (including assessments of the credibility of the appellant's wife's evidence and the social worker's reports) were not shown to involve legal error.

Background and procedural posture:

• The appellant, removed to Pakistan after a conviction for blackmail and the Secretary of State's certification under section 94B, pursued out-of-country human rights appeals. The First-tier Tribunal (FtT) first determined, at the appellant's request, whether he could have a fair and effective hearing by video link from Pakistan and then proceeded to hear and dismiss his appeal. The Upper Tribunal (UT) dismissed the appellant's appeal from the FtT. The Court of Appeal heard two grounds of appeal.

Nature of the claim and relief sought: The appellant sought to impugn the lawfulness of the FtT hearing held partly by video link from Pakistan and to challenge the FtT's application of the "unduly harsh" test in section 117C(5) of the Nationality, Immigration and Asylum Act 2002 in deciding whether deportation would be unduly harsh on his partner and children.

Issues framed by the court:

1. Whether the FtT hearing was unlawful or a nullity because there was not adequate evidence that Pakistani authorities had permitted the taking of evidence from Pakistan by video link and whether Home Office/FCDO practice in notifying without obtaining express permission rendered earlier hearings unlawful.
2. Whether the FtT misdirected itself in law in applying the "unduly harsh" test under section 117C(5), including whether it wrongly applied a notional comparator approach rather than the elevated evaluative threshold approved in MK and by the Supreme Court in HA (Iraq).

Court's reasoning and conclusions:

• On the procedural point, the court held there is no domestic law provision that makes a UK tribunal hearing a nullity because the foreign state has not given express permission to take evidence from its territory. The Tribunal Procedure Rules expressly include hearings conducted in whole or in part by video link. Authorities such as Nare and Agbabiaka provide guidance about the diplomatic/public interest consequences and urge clearance via the FCDO, but do not create a domestic legality requirement making such hearings void. The court accepted that diplomatic or international ramifications are primarily addressed by the FCDO and that remedies or sanctions for any breach are diplomatic rather than legal nullities of the hearing.
• The court reviewed fresh evidence about Home Office/FCDO practice of notifying foreign authorities and treating silence as no objection between 2017 and 2021, and later changes to seek express permission in some contexts. That evidence did not show that the FtT's hearing was unlawful or that it materially affected fairness; nor did it undermine the factual findings of the FtT.
• On the statutory test, the court applied the framework in Part 5A of the 2002 Act and the Supreme Court's ruling in HA (Iraq). The correct approach is the elevated evaluative threshold articulated in MK and endorsed in KO and HA (Iraq). The FtT applied that approach, evaluated the evidence (including the social worker's reports and credibility findings as to the appellant's wife) and concluded the consequences for the children and partner did not meet the "unduly harsh" threshold. The Court of Appeal concluded there was no legal error in the FtT's application of the test and dismissed the appeal.

Appeal dismissed. The Court of Appeal held (1) there is no domestic law rule making a tribunal hearing conducted in part by video link from abroad a nullity merely because the foreign state did not give express permission; the Tribunal Rules allow video-link hearings and diplomatic concerns are for the FCDO rather than a basis for automatic legal nullity; (2) the FtT correctly applied the elevated evaluative "unduly harsh" threshold in section 117C(5) in accordance with MK, KO and the Supreme Court in HA (Iraq), and its factual assessments did not involve error of law.

Appeal from the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judges Allen and Kebede; UT determination promulgated 2 November 2021) which dismissed the FtT's determinations. The FtT (Taylor House) had issued two determinations: (1) whether the appellant could have a fair appeal by video link from Pakistan, and (2) dismissal of the human rights appeal. The appellant's challenge to the UT's dismissal was heard in the Court of Appeal in CA-2022-000342, resulting in [2023] EWCA Civ 29.