New UT (IAC) case law

Here are the head notes from four recent UT cases (two are UT JR cases). There is guidance on the law and matters of practice and procedure. Some holiday reading!

R (on the application of Luma Sh Khairdin) v Secretary of State for the Home Department (NIA 2002: Part 5A) IJR [2014] UKUT 00566 (IAC)

(1) Section 117A of the Nationality, Immigration and Asylum Act 2002 requires the Upper Tribunal, in a judicial review involving Article 8(2) ECHR, to have regard to the considerations mentioned in section 117B and, where relevant, section 117C, when considering the question whether an interference with a person's right to respect for private and family life is justified. The nature of the proceedings is such as to require the Tribunal to determine the questions set out in section 117(1)(a) and (b).

(2) Where the Upper Tribunal is considering, pursuant to section 11 of the Tribunals, Courts and Enforcement Act 2007, whether there is an error of law in the decision of the First-tier Tribunal involving Article 8 proportionality, the task of the Upper Tribunal is confined (at that point) to deciding if the First-tier Tribunal's assessment of where to strike the balance was unlawful, according to the error of law principles set out in R (Iran) [2005] EWCA Civ 982. An Article 8(2) decision of the Secretary of State which is susceptible only to judicial review has, by definition, not received such judicial scrutiny; and it is the task of the reviewing court or tribunal to provide it, albeit via a process that remains different from that of an appeal.

R (on the application of Isaac Kimondo) v Secretary of State for the Home Department (relevant rules; AoS requirements) IJR [2014] UKUT 00565 (IAC)

(1) In judicial review applications transferred by the Administrative Court to the Upper Tribunal, the applicable procedural regime is that contained in the Tribunal Procedure (Upper Tribunal) Rules 2008. The Civil Procedure Rules have no effect thereafter; although the procedural history may be significant, particularly as regards time limits.

(2) The prohibition in rule 29(3) on a party who has not filed an acknowledgement of service from taking part in the application permission (without the Upper Tribunal’s permission) applies also to a party who has failed to provide a copy of the AoS to the applicant, as required by rule 29(2A).

Macnikowski (applicable policies) [2014] UKUT 00567 (IAC)

(1) The principle in Abdi [1995] EWCA Civ 27 involves an entitlement to the benefit of a policy that is applicable to the person concerned.

(2) As from 1 April 2009 the applicable policy relating to deportation of EEA nationals who have committed serious offences was that set out in the Criminal Casework Directorate (European Economic Area) Cases (“CCD:EEA”). The preceding policy set out in the Home Office Enforcement Instructions and Guidance (EIGs) Chapter 12.3 ceased to be applicable from that date, notwithstanding that it remained by mistake on the Home Office website for several years thereafter.

(3) From 15 January 2013 the CCD-EEA policy was in turn revised by modernised guidance entitled: Criminal casework: European Economic Area (EEA) foreign national offender (FNO) cases (CC:EEA)(FNO).

BW (witness statements by advocates) Afghanistan [2014] UKUT 00568 (IAC)

(i) It is timely to recall the golden rule of judicial adjudication that justice must not only be done but must manifestly be seen to be done.

(ii) In certain cases, likely to be rare, evidence presented to the Upper Tribunal may include a witness statement compiled by a representative involved in the hearing before the First-tier Tribunal (“FtT”). In practice, this is most likely to occur in cases where such evidence is considered necessary to demonstrate that the appellant was deprived of his right to a fair hearing at first instance.

(iii) Evidence of this kind will not be required if the determination of the FtT speaks for itself on the relevant issue.

(iv) In applications for permission to appeal, the distinction between legal submissions and arguments (on the one hand) and evidence about events at the hearing (on the other) must be carefully observed.

(v) Where an advocate makes a witness statement in the circumstances outlined above, a change of advocate may be necessary, since the roles of advocate and witness are distinct, separated by a bright luminous line. An advocate must never assume the role of witness.

(vi) The respondent’s rule 24 response must engage specifically with additional evidence of this kind.