Immigration Appeal Disposal: Should The Upper Tribunal Remake Or Remit?

• Published date: 21 December 2022
• Subject Matter: Litigation, Mediation & Arbitration, Immigration, Trials & Appeals & Compensation, General Immigration
• Law Firm: Richmond Chambers Immigration Barristers
• Author: Mr Alex Papasotiriou

The "disposal" of an appeal by the Upper Tribunal, namely whether the appeal should have been remitted to the First-tier Tribunal rather than retained at the Upper Tribunal for remaking, was at the heart of the issues that the Court of Appeal had to consider in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512.

Procedural History in AEB

The Appellant, AEB, had been convicted of offences of dishonesty in 2017 and had been sentenced to four years' imprisonment. For that reason, he faced automatic deportation under section 32 of the UK Borders Act 2007. He brought a human rights claim against his deportation, relying on his private and family life under Article 8 ECHR, which was refused by the Secretary of State for the Home Department ("SSHD") in 2018.

AEB appealed against the refusal of his human rights claim. The First-tier Tribunal ("FtT") dismissed his appeal. AEB appealed against this decision to the Upper Tribunal ("UT"). The UT set aside the FtT's decision on the grounds that there were errors of law, including a decision to refuse an adjournment application that deprived AEB of a fair hearing. No findings of fact by the FtT were preserved. The UT decided that it was appropriate to remake the decision itself given the narrowness of the scope of the issues as they had developed. In a separate decision, the UT dismissed AEB's appeal.

AEB appealed by way of a second appeal against the UT's decision. Permission to appeal was granted on two grounds: 1) that the UT misdirected itself as to the applicable principles when deciding to retain AEB's appeal rather than remitting it to the FtT, and 2) that the UT erred in its approach to the question of whether there were "very compelling circumstances" within the meaning of section 117C(6) of the 2002 Act.

Decision of the Court of Appeal

In the context of Ground 1, the legal framework relating to the disposal of appeals by the UT was examined. The Court of Appeal confirmed that section 12 of the Tribunals, Courts and Enforcement Act 2007 gives the UT an unfettered discretion to either remake the decision, once it has set aside a decision of the FtT, or to remit the case to the FtT with directions for its reconsideration. This discretion is the subject of Practice Directions and Practice Statements of the Immigration and Asylum Chambers of the FtT and the UT. The former tend to set out the steps to be taken by the parties, whereas the latter set out what the tribunals will do.

Paragraph 3.1 of the current Practice Directions states:

3.1. Where permission to appeal to the Upper Tribunal has been granted, then,...