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Court of Appeal frustrated by technical appeals in weak cases

Court of Appeal frustrated by technical appeals in weak cases

Given what I wish to say about the merits of this appeal, I place on record the fair way in which Mr Biggs pursued the appeal on behalf of the appellant. He did not appear below and has not pursued before this court technical arguments which dominated the written materials and that had less merit than those described. The court pushed him on the question of whether those representing appellants should advise them to bring appeals on the basis of a technical error when the case is very weak on its facts and unlikely to succeed. He appropriately conceded that technical errors divorced from the factual merits of a case are rarely an appropriate basis for an appeal although there may sometimes be a proper ancillary purpose if it is disclosed and reasoned. I agree. Technical errors should not be pursued when it is clear the case cannot succeed on its merits. It is a waste of both the appellant’s and the public’s resources.

Senior President of Tribunals (Sir Ernest Ryder) in Asiweh v Secretary of State for the Home Department [2019] EWCA Civ 13 

Lord Justice Irwin agreed, saying “pursuit of technical points in cases devoid of merit represents a waste of time and cost, and has the effect of delaying the resolution of cases which may have more merit.”

Personally, I’ve got a lot of sympathy with these views. A lot of client money in immigration work seems to get spent on cases which are basically doomed to fail, exploiting narrow academic arguments that have little if any purchase in the real world. Some have made a career out of these kinds of cases but in the process immigration law itself has become even more impenetrable than it was before.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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