Litany of Forensic Criticisms Unacceptable in Appeals

VHR (unmeritorious grounds) Jamaica [2014] UKUT 367 (IAC)

This is an interesting decision of the Upper Tribunal (Haddon Cave J & UTJ Hanson) where it decided that 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. At first instance, the FtT panel had dismissed this appeal involving a Jamaican appellant (A), a forty one year old with children in the UK born out of multiple relationships, who had appealed against the SSHD’s decision to make an automatic deportation order triggered by his conviction for the offence of wounding with intent to do grievous bodily harm committed in July 2010. The UT was hypercritical of legal aid barrister of the year S Chelvan. However, it is noteworthy that Haddon Cave J’s dubious EU law analysis in McCarthy & Ors [2012] EWHC 3368 (Admin) has recently been impeached by AG Szpunar – whose Opinion was also partially criticised by Professor Peers for chasing a “semantic butterfly” – in Case C-202/13 McCarthy.

A claimed he entered the UK in December 2001. He was removed for overstaying in 2004 but re-entered in 2005 and was granted ILR as the spouse of a settled person in 2008. In 2011, while sentencing A to four years’ imprisonment on the basis that his victim would recover, HHJ Roach said the wounding was doubly serious because A not only carried a knife but used it to cause irreversible harm to his victim’s dominant left hand.

Three main points (i.e. not a litany) were advanced in the UT in relation to the FtT:

  • Not referring to salient parts of the evidence, in particular the evidence of A’s partner and her mother;
  • Not taking into account other evidence put forward by A as regards the strength of the “bond” of the appellant with his disabled son C; and
  • Failing to give sufficient reasons for its decision such as to give uncertainty to the decision and the reasons for it.

In response the UT said that:

  1. In our judgement, the problem with Mr Chelvan’s approach and this appeal is that he has sought to comb through the judgment as if it was a statute and pick bits here and there out of context whilst ignoring the overall findings of the Determination and Reasons and the conclusions.
  1. We see these sorts of manufactured appeals quite often in the Upper Tribunal and deprecate them. It is not necessary for judges to record, analyse, rehearse and repeat the entire interstices of the evidence. The task of the First-tier Tribunal is to make reasoned findings on the key issues in the case and a clear decision.
  1. Mr Chelvan has with some tenacity and skill, it might be said, subjected these Determination and Reasons to forensic criticism which in our judgement is quite unwarranted and unreal. We highlight the key paragraphs of the Determination and Reasons in order to demonstrate the vacuity of Mr Chelvan’s artificial criticisms.

The UT said that the FtT recorded A’s partner and her mother’s evidence fairly and that it considered all the evidence presented to it by the SSHD and A, both in their respective bundles and as presented to it at the hearing. Moreover, the UT said that the FtT applied the relevant test in a case of automatic deportation and the judges of the UT remarked that A’s counsel essentially sought to ignore the relevant test:

By confining himself to rummaging around in the lower branches of the evidence to say airily that the findings had been unfair, unsupported or not explained in the reasons, etc.

Furthermore, the UT also said that the FtT found that the relationship between A his partner RB was not durable and so A did not qualify as an extended family member under the Immigration (European Economic Area) Regulations 2006. The UT highlighted the FtT’s conclusions that the only period of cohabitation was from January 2014 (when A was released from prison) until the date of hearing and that A, who said he did not plan to marry RB, lived in his own flat before being imprisoned and lived with RB and babysat their son C because he needed an address for bail on his release from prison. The UT therefore concluded that A was “essentially opportunistic” and disagreed with the submission that after making its findings on the Regulations the FtT should have proceeded to consider A’s relationship with C afresh. Haddon Cave J & UTJ Hanson underscored the generality of the FtT’s findings as regards opportunism – describing them as being at the “forefront” of the panel’s mind – which lay at the heart of the instant case.

The UT did not accept that the FtT had distorted the sentencing judge’s remarks by excluding the judge’s acceptance that A was “a caring family man” to whom his “young son is devoted … and will be hurt by the separation” and Haddon Cave J & UTJ Hanson did not find that the “criticism of the Tribunal is in any way justified, or, frankly, sensible” because it “had read the entire sentencing remarks and taken them on board”.

The UT also rejected the argument that the FtT illegitimately leapt to conclusions as regards the best interests of A’s children because the panel was alive to all the evidence and also came to clear and cogent conclusions on the key issue, i.e. the family relationship between A his partner RB and son C. For the UT, the FtT had rightly found that A was clearly uncommitted to RB and his failure to devote himself with his other partners for any length of time deprecated the point that A “had a commitment or a bond of an enduring nature towards C.”

The argument that it was “perverse” of the FtT, which found that A had not worked here and he had not demonstrated any ties to this country (and therefore opined that he could go and live with his mother in Jamaica), not to give sufficient weight to A’s private life in the UK was roundly rejected by the UT. Mindful of the “unfortunate effects” of deportation, the UT asserted that the FtT considered all the evidence and not only gave anxious scrutiny to the key issues but also proportionately concluded that in light of A’s very serious violent offence the need for his deportation outweighed the consequences for him personally. Reiterating A’s counsel’s failure to tackle the legal test, whether one or more of the section 33 exceptions applied in A’s case, the UT reminded itself of McCombe LJ’s words in VW (Sri Lanka) [2013] EWCA Civ 522:

Regrettably, there is an increasing tendency in immigration cases, when a First-tier Tribunal Judge has given a judgment explaining why he has reached a particular decision, of seeking to burrow out industriously areas of evidence that have been less fully dealt with than others and then to use this as a basis for saying the judge’s decision is legally flawed because it did not deal with a particular matter more fully. In my judgement, with respect, that is no basis on which to sustain a proper challenge to a judge’s finding of fact.

S Chelvan legal aid lawyer of the yearPersonally, I think that the UT’s criticism is one-sided. From what I can make of it, the UT’s criticism is aimed at A’s counsel doing too much in his cause. At times cases are not strong on the facts and appellants say things to make things more difficult. Should this become a reason for not fully arguing a case? Would that be ethical?

Should counsel get co-opted by the tribunals and the Home Office? One would hope not. Strangely, judges are less keen to criticise the HOPOs. But sometimes, like Blake J in the case of Izuazu (Article 8 – new rules) Nigeria [2013] UKUT 45, judges have been unable to hide their frustration with the Home Office’s broken system:

8. We, nevertheless, take this opportunity to express our dissatisfaction at the appellant’s lack of preparedness in this case, although on what we were informed it does not appear to have been the individual responsibility of Mr Nath.  This was the Secretary of State’s appeal on a profoundly important new issue for determination by this Tribunal with potential impact on many cases being heard daily across the country.  Whenever an issue of this significance arises the Upper Tribunal is likely to constitute itself as a panel and deploy the most senior judges available to it at the time.  It needs to give clear and comprehensive guidance to judges sitting throughout the United Kingdom as speedily as possible.  Here there had been a case management hearing attended, we were informed, by a Home Office Presenting Officer where the importance of the issue would have been made plain in the listing arrangements. Whether or not the Presenting Officers’ Unit was aware that the President and a judge of the Court of Session were to sit on this appeal is not the point.  The Tribunal is entitled to expect that any advocate before it will be properly briefed with the relevant documents, fully prepared to address the issues that everybody is aware arises, and is capable of addressing the issues orally when they arise. Not for the first time, we conclude that there has been a failure by UKBA of its duty of co-operation with the Tribunal to advance the over-riding objective of fast, fair and efficient adjudication.

But this is quite rare. And arguably it does not go far enough. Overall, the Home Office is not getting enough stick from judges. The (arguably) apathetic tribunal judiciary and the HOPOs just see too much of each other on a daily basis for it to be any other way.  So, although a litany of forensic criticisms is unacceptable in appeals, it is equally the case that negligence and incompetence on the part of the Home Office is completely acceptable in appeals.

Contrast this, for example, with Lord Neuberger of Abbotsbury’s uncompromising view that for the rule of law to prevail the judiciary must be seen as treating everyone equally and with complete impartiality.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Judges, Tribunals and tagged , . Bookmark the permalink.

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