Nigerian national convicted of fraud and other dishonesty offences wins final deportation appeal in Court of Appeal

About this case:

• Citation:
  [2022] EWCA Civ 1512
• Judgment:
  External link
• Court:
  England and Wales Court of Appeal
• Judge:
  Lord Justice Stuart-Smith

Appellant AEB argued that the UT had misdirected itself in re-making the decision on his deportation rather than remitting the case to the First-tier Tribunal, and that he had been deprived of a fair hearing. The Secretary of State for the Home Department opposed the appeal, arguing that the error made was not material.

The appeal was heard by Lord Justice Underhill, Lady Justice Davies, and Lord Justice Stuart-Smith. David Chirico and Eleri Griffiths for the appellant, and Andrew Byass for the respondent.

Procedurally unfair

The appellant first came to the UK at the age of 29 in 1992. It was accepted that his first entry into the UK was lawful, but he was served a notice of liability to deportation in July 2006 that was never acted upon. He had three children with his partner, MD, each of whom had significant disabilities and learning needs.

On 15 February 2005, the appellant was fined for using a false instrument to obtain a medical prescription. He accrued three other convictions for an additional ten offences from 2007 to 2017, including using a false birth certificate to obtain employment and a fraud scheme against his former employer, Southern Rail, with an aggregate value of around £100,000. In light of this final conviction, AEB was served with the respondent’s decision to deport him in August 2017.

An Article 8 ECHR claim made in March 2018 was refused by the respondent. He appealed to the FtT but later sought an adjournment to obtain an expert report in respect of the impact that his deportation would have on his children. The FtT refused the application for adjournment, which later led the UT to hold that the hearing had been procedurally unfair. However, rather than remit the case to the FtT, the UT proceeded to re-make the decision itself, refusing the appeal.

It was argued by the appellant that UT had erred in treating the issue as being one where it was appropriate for the UT to remake the decision. By failing to remit, it had deprived the appellant of the standard two-tier approach that he ought to have obtained and would have had the FtT retook the decision. It was conceded by the respondent that the decision should have been remitted, but she contested that the loss of a two-tier approach was a material error.

No good reason advanced

In an opinion with which the other two judges agreed, Stuart-Smith LJ observed: “It was common ground that there may be circumstances in which it is appropriate for the UT to remake a decision and that the effect of its doing so may be that a party only has the prospect of appealing a primary finding of fact (or law) by the UT if they can satisfy the second appeal test. I fully accept [that] such an outcome is not necessarily objectionable; but it does not follow that it is necessarily unobjectionable in all cases.”

Evaluating whether it was appropriate in this case, he went on to say: “The admitted error by the UT has deprived AEB of (a) a fair hearing before the FtT; (b) the first appeal ‘standard’ error of law test in respect of the range of factual findings and evaluative judgments which would have been made by the FtT; and (c) the opportunity to appeal against an adverse finding on a point of law which does not have to meet the second appeal test. [Since they] flow from the unfairness of the original FtT hearing, these are losses that are substantial and which render the UT’s error material.”

On the likely effect of a remit, Stuart-Smith LJ said: “It is accepted by the Secretary of State that, if the UT had addressed the issues properly, it may have remitted the case to the FtT. In my judgment that is putting things at their lowest since no good reason has yet been advanced for not remitting. Be that as it may, if the UT had remitted the decision the outcome is unpredictable save that (a) if AEB were to have lost the remitted appeal before the FtT he would have had two possible tiers of appeal above him; and (b) if AEB had won before the FtT he would obviously have secured a real advantage which he has in fact lost.”

He concluded: “I say this not to encourage any suggestion that Judge-shopping is an acceptable pastime – it is not – but to build upon the Secretary of State’s acceptance that it cannot be said that the result would have been the same if the case had been remitted. That acceptance was, in my judgment, sound since the detailed and thorough evaluation of the case by the UT demonstrates that the decision was nuanced and difficult and that a different outcome could have fallen within the range of reasonable conclusions to which either the UT Judge or any other Judge could have come.”

The appeal was accordingly allowed, with the case remitted to the FtT for reconsideration.