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Upper Tribunal told to stop interfering with perfectly good appeal decisions

Upper Tribunal told to stop interfering with perfectly good appeal decisions

KC (Gambia) v Secretary of State for the Home Department [2018] EWCA Civ 2847 is an asylum case that bounced from the First-tier Tribunal to the Upper Tribunal twice before landing before the Court of Appeal. The various tribunal judges were unable to agree on whether the appellant, who was at risk of being killed for refusing to perform female genital mutilation in the Gambia, could avoid that fate upon return.

The First-tier Tribunal found, at the second time of asking, that “KC cannot be expected to internally relocate as that would not negate the inherent danger”. The Upper Tribunal thought that she could move to a different area within the Gambia and rely on police protection. Deputy Upper Tribunal judge Hanbury felt that the lower tribunal hadn’t given adequate reasons for its findings on internal relocation. He also fretted that it had placed the burden of proof on the Secretary of State to demonstrate that internal relocation was suitable and that there was a sufficiency of protection.

Lord Justice Peter Jackson, mercifully sparing the reader the minutiae of the previous determinations, simply found that the First-tier Tribunal did nothing wrong. In fact, the Home Office and Upper Tribunal were both bang out of order:

Overall this is a case where the Secretary of State’s decision was centrally based upon a rejection of the truth of the KC’s assertions about the risks she faced in the Gambia. When that account was vindicated by the FTT, the Secretary of State fell back on her alternative arguments relating to internal relocation and state protection. When these too were rejected, the appeal to the UT was based upon narrow forensic arguments concerning the reasoning of the FTT. After the UT, wrongly in my view, allowed itself to intervene in a case that it considered to be finely balanced, the Secretary of State has been driven to seek to bolster that decision with yet more elaborate arguments by way of a Respondent’s Notice. None of these attempts persuade me that the FTT did not direct itself correctly in law or that the decision was not one that it was entitled to reach on the evidence it heard. Ms [Shazia] Khan’s submission that there was nothing wrong with the FTT’s decision is unanswerable.

A few years ago we went through a phase of tagging Free Movement articles with “Tribunal overturned again“. We might have to dust off that label if the Upper Tribunal gets a few more pastings like this one.

Conor James McKinney

CJ is Free Movement's deputy editor.

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