Immigration Law Tip: Identifying Errors of Law

As Immigration lawyers we are often tasked with identifying errors of law in judicial decisions. However our grounds of appeal are frequently rejected as being 'mere disagreement' rather than identifying a point of law.

In R (Iran) & Ors v Secretary of State for the Home Department [2005] EWCA Civ 982 (27 July 2005) the Court of Appeal identified the most common errors of law encountered in practice. Brooke LJ said:

Part 3 The jurisdiction to correct errors of law: examples of errors of law commonly encountered

9. When the court gave this guidance in Subesh, it was aware that it would not be of any relevance to an appellate regime in which appeals were restricted to points of law. It may be convenient to give a brief summary of the points of law that will most frequently be encountered in practice:

i) Making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters");

ii) Failing to give reasons or any adequate reasons for findings on material matters;

iii) Failing to take into account and/or resolve conflicts of fact or opinion on material matters;

iv) Giving weight to immaterial matters;

v) Making a material misdirection of law on any material matter;

vi) Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;

vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.

The examples given in the extract above should be in your mind as you read a decision; they will help you identify properly arguable errors. I also try and use the examples above as headings when drafting my grounds of appeal, hopefully they will help keep my drafting sharp and increase the likelihood of permission to appeal being granted.

I hope that this helps and if your're a bit of a geek like me you can cut out the above extract and stick it up somewhere prominent whilst you draft grounds!

Happy error of law hunting!