The Secretary of State for the Home Department v Harsh Lata

Parties in First-tier Tribunal protection appeals must identify and narrow the issues in dispute through the prescribed case-management process. A tribunal judge is generally required to decide the issues identified by the parties, not to search the papers for unraised points which might assist either side. The Devaseelan guidelines do not require every issue from an earlier decision to be reconsidered. Parties must identify which aspects of an earlier decision provide the starting point and explain their relevance. The exception is a point which is Robinson obvious, applying in asylum cases in favour of the asylum seeker and not ordinarily in favour of the Secretary of State. Failure to identify an issue before the First-tier Tribunal is unlikely to provide a good ground of appeal.

The Secretary of State appealed against a decision of the First-tier Tribunal, sent on 12 May 2022, which allowed Harsh Lata’s protection appeal. The First-tier Tribunal found that she was a genuine Christian convert, would face persecution in India, and could not safely or reasonably relocate internally to Goa.

On appeal, the Secretary of State argued that the First-tier Tribunal had failed to consider whether one or both of Lata’s adult sons could accompany her to Goa and provide support. That issue had not been identified in the agreed case-management issues, raised in submissions, or put to the relevant witnesses. The central issue was whether the point could properly be raised for the first time before the Upper Tribunal.

1. The appeal was dismissed. The First-tier Tribunal had not erred in law, and its decision was upheld.
2. The parties were under a duty under rule 2(4) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 to assist the Tribunal in furthering the overriding objective and to cooperate generally. This required constructive engagement, including identifying and narrowing the issues in dispute.
3. The reformed appeal procedures, including the appeal skeleton argument, meaningful review, case-management review and closing submissions, were designed to ensure that the First-tier Tribunal addressed the parties’ actual cases. A judge could properly proceed on the basis that an issue not asserted by the conclusion of the hearing was not one requiring determination.
4. The Secretary of State had not identified the sons’ possible relocation to Goa as an issue. The witnesses had not been cross-examined on that matter, and the Secretary of State’s submissions referred only to visits and contact from the United Kingdom. The First-tier Tribunal was therefore not required to consider the unraised point.
5. The Devaseelan guidelines establish a starting point in appropriate appeals but do not require a judge to reconsider every issue arising from an earlier decision. The parties must identify the relevant aspects of any earlier decision and explain why they form part of the starting point.
6. The application of anxious scrutiny in a protection appeal does not relieve a party of the obligation to identify the principal controversial issues. Under AZ (error of law: jurisdiction; PTA practice) Iran [2018] UKUT 00245 (IAC), the Robinson approach applies in favour of the asylum seeker, not ordinarily in favour of the Secretary of State. No relevant exception arose.
7. The anonymity order was lifted after balancing Articles 8 and 10. Lata would not be returned to India, publication would not adversely affect her or her family, and the public interest in open justice prevailed. The lifting was stayed pending the possible onward appeal. The First-tier Tribunal’s fee award was set aside and no fee award was made.

• First-tier Tribunal: Judge Cotton allowed Harsh Lata’s protection appeal in a decision sent on 12 May 2022.
• Upper Tribunal (Immigration and Asylum Chamber): Permission to appeal was granted on 2 November 2022. The Secretary of State’s appeal was dismissed and the First-tier Tribunal’s decision was upheld. The fee award was set aside and no fee award was made.