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Contrasting cases on grounds of appeal

In a fresh batch of cases from the reporting committee, two of those cases address the question of how grounds should be drafted, what constitutes an error of law and when permission should be granted. One of the cases concerns an appeal by a claimant and the other an appeal by the Home Office.

There is an interesting difference between the cases. In the first, VHR (unmeritorious grounds) Jamaica [2014] UKUT 367 (IAC), the judge admonishes the lawyers for mounting challenges. In the other, Nixon (permission to appeal: grounds) [2014] UKUT 368 (IAC) the judge states that the tribunal will deal robustly with deficient grounds. The first is akin to a drive by shooting by a visiting heavy, untroubled by the difficult tension between a lawyer’s obligations to the court and the client, as well as being plain rude and, in the context of appalling cookie cutter grounds cut and pasted by Home Office civil servants, astonishingly blinkered to Home Office abuse of the appeal process. It also rather overlooks the fact that permission was granted on the grounds in question. The second is a more thoughtful response to the issue of pursuit of appeals by desperate people. Migrants are desperate to avoid removal. Civil servants are desperate to avoid Daily Mail headlines.

I for one grow tired of these migratory judges, coming into our jurisdiction and taking away judicial postings from home grown immigration judges…

Contrast the two headnotes, the first for VHR:

Appeals should not be mounted on the basis of a litany of forensic criticisms of particular findings of the First Tier Tribunal, whilst ignoring the basic legal test which the appellant has to meet.

The second is for Nixon:

Whilst making due allowance where an applicant for permission to appeal to the Upper Tribunal is unrepresented and in respect of the requirement to consider obvious points arising under the Refugee Convention or ECHR (R v Secretary of State for the Home Department ex parte Robinson [1997] 3 WLR 1162), the First-tier Tribunal and the Upper Tribunal can be expected to deal brusquely and robustly with any application for permission that does not specify clearly and coherently, with appropriate particulars, the error(s) of law said to contaminate the decision under challenge. Besides placing unnecessary demands upon the judiciary, poorly compiled applications risk undermining the important value of legal certainty and causing unfairness to the other party.

Nixon is a helpful case that offers genuine guidance. It also addresses the Ferrer issue (previous blog post here) of whether permission need be explicitly granted on every ground:

FtT Judges, representatives and parties are also reminded of the decision of UTIAC in Ferrer (Limited Appeal Grounds; Alvi) [2012] UKUT 304 (IAC), [22]-[32] especially, which contains some important pronouncements and guidance on the grant of permission to appeal to UTIAC on limited grounds only. It also draws attention to the importance of two procedural notices: IA68 (FtT) and Form UT1 (UTIAC). It may be worth emphasising that, irrespective of whether permission to appeal is granted on all of the grounds advanced or some thereof only, a reasoned decision is always required in respect of each and every ground, which reinforces the necessity of considering all grounds with scrupulous care.

I read this final warning to representatives as primarily addressed to the Home Office and the standardised ‘Gulshan grounds’, but I am aware that I do not generally read the grounds of other claimant lawyers:

Finally, representatives should be aware that grounds of appeal presented in formulaic terms, particularly when they reappear with frequency in a multiplicity of cases over time, are likely to be received with circumspection. There can be no substitute for properly tailored and carefully crafted grounds of appeal which clearly reflect the unique facts, features and issues pertaining to the individual case. “Boilerplating” will be quickly recognised by permission Judges. Ditto makeweights and embellishments.

With the new human rights considerations having come into effect, there is a clear danger of further boilerplated Home Office grounds where a First-tier judge makes insufficient reference to those considerations. This is perhaps a stronger error of law point for the Home Office than Gulshan, which was always an obviously flawed decision anyway. It is hoped that judges deciding permission applications can scratch beneath the surface and look to the substance of any such decisions.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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