‘Systemic Failure’: Second Appeals and Indemnity Costs

Secretary of State for the Home Department v Barry [2018] EWCA Civ 790 (17 April 2018)

This is another addition to Singh LJ’s expanding collection of heads. The new specimen is a Home Office scalp and it rather shamefully involves the government having to pay costs on the indemnity basis in a case involving a foreign criminal, named Thierno Barry, whose automatic deportation was sought under section 32(5) of the UK Borders Act 2007. This judgment clearly shows that the Home Office readily resorts to pursuing rather hopeless appeals, all fully paid up by the taxpayer of course, which are so utterly devoid of merit that they are necessarily bound to fail. The case concerned the government’s appeal against the Upper Tribunal’s decision that there were exceptional circumstances which meant that Barry’s deportation constituted a disproportionate interference with his rights pursuant to article 8 of the ECHR. A national of Guinea, he entered the UK in March 2004 at the age of 20 and was given leave as a student until November 2009. His relationship with a British citizen since 2007 ultimately resulted in marriage in March 2009. Consequently, the couple have two children who are British. In July 2009, Barry committed assault with a knife and subsequently pleaded guilty to unlawful wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861. He was sentenced to three years’ imprisonment and was released from custody in early 2011.

In June 2013, the Home Office decided to deport him. The First Tier Tribunal allowed his appeal and the Upper Tribunal dismissed the Home Office’s onward appeal. At the material time, the “hostile environment” was still in its nascency and the 2012 version of the deportation provisions of the Immigration Rules were applicable. The Immigration Act 2014 had not yet amended the Nationality, Immigration and Asylum Act 2002 to introduce Part 5A into the latter Act to reflect the new machinery of the additional considerations in cases involving foreign criminals, contained in section 117C. The Home Office was granted permission to appeal purely on the ground that there had been “systemic failure” in the manner the UT had applied paragraphs 398 and 399 of the rules. The FTT’s approach was steered by MF (Nigeria) [2013] EWCA Civ 1192 which required “very compelling reasons” against deportation. It also followed the reasoning in SS (Nigeria) [2013] EWCA Civ 550 that only a “very strong claim” would result in a breach of article 8 upon removal. Mindful of the statutory public interest in deportation and the overall revulsion it represents from society’s point of view, the FTT judged that Barry’s case on article 8 was “very strong” and “very rare”. The children could not be expected to follow their father to Guinea in order to be with him.

The Court of Appeal

In dismissing the government’s appeal, among other things, Singh LJ found that the gap was so great between the “systemic failure” ground on which permission to appeal had been granted and the manner in which the case was argued before the court that he had no other option but to award costs on the indemnity basis to Barry. His Lordship noted that when granting permission Longmore LJ found persuasive and compelling the strong terms in which the government presented its grievance about the UT’s “systemic failure” in interpreting the rules. Observing that in reality the appeal was mounted on the basis of the particular facts of Barry’s case and raised no issue of general importance, Singh LJ remarked:

31. It is troubling that, having obtained permission to appeal to this court (and, in particular, having done so in a case in which the stricter criteria for a second appeal needed to be satisfied), the Secretary of State did not in fact pursue the argument that there is a systemic failure by the UT in determining cases such as the present one.

The Home Office pursued three grounds of appeal in court and none of them raised the “systemic failure” point invoked to dubiously gain permission to appeal.

(i) The Appeal

First, it was said that the “exceptional circumstances” in paragraph 398, as later amended by the 2014 version of the rules, required “very compelling circumstances” over and above the paragraph 399 and 399A thresholds. Extravagant and nonsensical reliance was placed in YP (Sri Lanka) [2015] EWCA Civ 1565 and AJ (Angola) [2014] EWCA Civ 1636 to argue that claims by foreign criminals for leave to remain on the basis of the ECHR must be considered under Immigration Rules and “through their lens”.

The second ground splintered into three sub-grounds. Reliance was placed in MM (Jamaica) [2015] EWCA Civ 1239 to stress the UT’s perceived failure to adopt as its starting point the “primacy” of the public policy in removing foreign criminals. It was said that the UT should not have accounted for the mitigating circumstances surrounding the offence or found that Barry’s family life had been partly established prior to his immigration status becoming precarious. Moreover, it was said that the FTT’s approach was impermissible. Allegedly, weight had been given to immaterial factors; namely the mitigation which it considered to be available to Barry and remorse shown by him. Wild accusations of “double counting” were made on the basis that any mitigating factors had already been fully accounted for by the criminal court while passing sentence. Furthermore, the FTT’s interpretation of precariousness was called into question. The third ground involved the government accusing the UT of making an irrational conclusion.

These fanciful arguments were resisted using the following reasoning. As for the first ground, the “exceptional circumstances” contemplated by paragraph 398 merely ensured the compliance of the rules with the ECHR which permits for a proportionality exercise. No proportionality exercise is embodied by paragraphs 399 and 399A. Despite the great weight to be accorded to the public interest in deportation, no one factor has “primacy” in the article 8 assessment as falsely claimed by the Home Office. Changes to the rules in 2014 reflected the fact that the courts were reluctant to accept the government’s interpretation of paragraph 398.

In response to the second ground, the FTT was right as a matter of substance to weigh up everything in conducting a balancing exercise in Barry’s appeal. Following Hesham Ali [2016] UKSC 60 (see here) no single factor has “primacy” in article 8 decision-making. Instead, a “balance sheet” approach needed to be applied. The approach was helpful to the courts in the extradition context and was suitable in considering factors weighing in favour and factors weighing against deportation. Moreover, considering mitigating circumstances regarding the offence was not an irrelevant factor. The FTT was not at fault and had considered the importance of public revulsion. Furthermore, as regards any findings on precariousness, the FTT had been favourable to Barry but in itself that was not classifiable as an error of law.

There had been no irrationality on the FTT’s part as misleadingly claimed by the Home Office. Essentially, the Home Office was being disingenuous by relying on Lord Kerr’s obiter comments in his dissenting judgment in Hesham Ali.

(ii) Lord Justice Singh

The court was utterly unconvinced that Barry’s appeal had erroneously been allowed pursuant to paragraph 398 despite failing under paragraphs 399 and 399A. The point of construction contended for by the Home Office did not assist the appeal. Lord Kerr’s dissent in Hesham Ali was neither here nor there. It was obiter and the majority did not construe the rules in the same way. In any event, the amendments to the rules in 2014 precluded relying on an argument of that nature.

Singh LJ observed that in JZ (Zambia) [2016] EWCA Civ 116 it was held that the even after those amendments the factors laid down in paragraphs 399 and 399A have not been either expressly or impliedly “ringfenced”. In NA (Pakistan)[2016] EWCA Civ 662, the court confirmed the analysis in JZ (Zambia) that it would be bizarre for matters such as length of residence in the UK and lack of ties with country of proposed deportation to be disaggregated from matters capable of collectively constituting “exceptional circumstances” under paragraph 398. Notably, the Home Office ultimately abandoned the argument that the court in JZ (Zambia) had been wrong about the code of the 2012 version of the rules and also the new regime in sections 117A to 117D in the 2002 Act. Overall, the first ground was nothing more than a disagreement over merits of the FTT’s determination and no error of law was made out.

The court also found no error in the assessment of the evidence against deportation. Singh LJ found no reference in Hesham Ali as to the suggested “primacy” of any factor. Instead, reference was made to the need for a balancing exercise which would take into account the strong public interest in deportation of foreign criminals. It was not possible to impugn the methods employed by the FTT because it made constant reference to that strong public interest in its determination. In that light, Singh LJ held:

54. In my view, there is nothing inconsistent between the decision of this Court in MM (Jamaica) and the approach of the Supreme Court in Hesham Ali but, even if there were, this Court is bound by the decision of the Supreme Court.

The government’s allegations about the FTT “double counting” the mitigating factors in Barry’s case were also rejected by the court which did not regard the approach to be impermissible as a matter of law. It did not matter that any mitigating factors would already have played a part in passing the correct sentence for the underlying offence. Singh LJ disagreed that questions of mitigation were totally irrelevant to the balancing exercise that needed to be performed. Paragraph 398 contained three broad categories under which deportation was deemed conducive to the public good. In the context of an appropriate case, Singh LJ held:

57. … I can see no reason in principle why either aggravating factors or mitigating factors might not be taken into account by the FTT in assessing the seriousness of the offence in question and, accordingly, the strength of the public interest in deportation.

Barry’s case fit that description and fell into the intermediate category of seriousness because the sentence passed was between one to four years’ imprisonment. On the issue of “precariousness” of Barry’s family life, the court noted that he was not a student at all relevant times. His marriage to a British citizen did not guarantee him leave to remain, but it did entitle the FTT to hold that his position was not entirely precarious. The FTT had been meticulous in drawing a distinction between the situation at the time of Barry’s marriage and the birth of the first child, and the situation at the time of the birth of the second child. Rhuppiah [2016] EWCA Civ 803 did not alter the validity of that conclusion. Examining the approach in Jeunesse v The Netherlands (2015) 60 EHRR 17, Sales LJ observed in Rhuppiah that the concept of precariousness is independent of the presence of the person in the host state being unlawful. Overall the facts of the present case were not on all fours with the facts in Rhuppiah.

As regards whether the FTT’s decision was irrational, Singh LJ held that the determination made was “particularly careful and comprehensive” and was meticulous to clearly and fairly set out the various factors in the case. Significantly, in Kirtis Millar [2018] EWCA Civ 28 his Lordship had not only extracted the key parts of the Hesham Ali judgment but he had also set out the approach articulated by Baroness Hale of Richmond in AH (Sudan) [2007] UKHL 49. Her Ladyship was at pains to explain that immigration tribunals have the unenviable task of “administering a complex area of law in challenging circumstances”. Interfering with the findings of the tribunals should thus be approached with a “degree of caution”. It was therefore equally clear that in light of their expertise, the immigration judiciary “will have got it right” and that “they and they alone are the judges of the facts.” Accordingly, appellate courts must be slow to interfere with their findings. These points in turn led Singh LJ to hold in Kirtis Millar that:

30. … What is sauce for the goose should also be sauce for the gander. It is not only where the Secretary of State wins before the Tribunals that such an approach is appropriate. Sometimes the Secretary of State loses before the Tribunals and can expect no more favourable treatment in this Court than she would expect to be given to immigrants and asylum claimants when they have lost.

The FTT made wide-ranging findings. It attached “very significant weight” to the best interests of the two children. Their interests were best served by allowing the family unit to remain intact. The Home Office accepted that the children could not leave the UK. Moreover, Barry’s separation from his wife had to be given significant weight. His family life had not necessarily been established precariously and, subject to other relevant considerations, the FTT found a public interest in keeping nuclear family units together. The FTT also carefully considered a psychiatric report and found it to be a reliable source of weighty expert evidence. Overall, the risk of reoffending was low.

On the other side of the scales, the FTT noted that Barry’s violent offence was serious and a weapon had been used leaving the victim affected for life. Equally, invoking the “public revulsion” theme (which is best avoided after Lord Wilson’s recantations in Hesham Ali), the FTT noted that deporting foreign criminals was in the public interest and deterred further crimes. It had clearly stated that the children’s interests alone did not render Barry’s deportation disproportionate. The legitimate aim of prevention of crime and disorder was given its due place, as was the “parallel issue of effective immigration control”. Even though it is not a legal test, the need to show “a very strong claim” was at the forefront of the FTT’s mind and it therefore allowed Barry’s appeal on the basis that his case was “rare” and “very strong”. Therefore, dismissing the appeal, Singh LJ held:

80. In my judgment, the FTT was reasonably entitled to come to those conclusions in the light of the evidence before it. It cannot be said that the determination was irrational.

Costs had to be awarded on an indemnity basis because no argument on “systemic failure” in the construction of the deportation rules was made and in reality the government only disagreed with the FTT’s findings of fact. The argument used to secure permission to appeal was abandoned without any explanation. The test for awarding indemnity costs is whether the conduct of a party was “unreasonable to a high degree” and applying Kiam v MGN Ltd (No. 2) [2002] EWCA Civ 66 “unreasonable” does not mean merely wrong or misguided in hindsight. Despite putting no evidence about the claimed “systemic failure”, the Home Office ambitiously pursued the argument that indemnity costs should not be awarded unless the continued appeal is hopeless. The court rejected the point as invalid and Singh LJ said:

85. I do not accept those submissions on behalf of the Appellant. The fundamental point which Ms Patry fails to meet is that this was a second appeal. The well known criteria for a second appeal are much more stringent than for a first appeal.

The case would not normally have obtained permission for a second appeal and thus costs on the indemnity basis were appropriate. Underhill LJ concurred with Singh LJ that the FTT’s determination was impenetrable and that permission to appeal was deviously obtained on “systemic failure” ground which was abandoned in court. Therefore indemnity costs were the correct course.


The theme of misconduct by immigration lawyers has recently been under the spotlight yet again. As shown by the decisions in SB (Afghanistan) [2018] EWCA Civ 215 and R (Sathivel) [2018] EWHC 913 (Admin), very exacting standards of accuracy, ethics, skill and accuracy are imposed on solicitors and barristers in removal related judicial review proceedings. Surely nothing less than the highest standards should be expected of all lawyers – in immigration or otherwise – and abuse of the legal process should not be tolerated. Of course, Lord Burnett of Maldon CJ, and his colleagues have failed to appreciate that the Hamid [2012] EWHC 3070 (Admin) line of authorities will be off-putting even for highly skilled solicitors and counsel who – in light of the parallel hostile environment for immigration lawyers – will inevitably prefer not to participate in any removal related cases at all. This is probably the best way to perform the duty to the court and live a peaceful life.

While not a judicial review case, in comparative perspective, this case is nonetheless a welcome decision because it serves as a useful reminder that the Home Office – and indeed its lawyers – often resort to highly unreasonable and violent tactics in order to win at all costs. However, somewhat ironically the government will have to pay for every penny of Barry’s costs on an extravagant commercial basis and pursuing this appeal was just a waste of time and money.

The harsh approach SB (Afghanistan) and Sathivel makes interesting comparative reading with judgments such as R (Babbage) [2016] EWHC 148 (Admin) which is a clear example of the immigration cohort of the GLD being a law unto themselves. Garnham J identified in Babbage that a GLD solicitor called Sarah Kelly deliberately and vexatiously breached the High Court’s order for disclosure and instead purported to accord the court’s powers of disclosure to herself. She did not put her duty to the court first and instead purported to usurp the power of disclosure for herself to protect her client. Despite her outrightly disgraceful behaviour she was still above the law.

It is clear that the Home Office, and its lawyers, often descend into undignified and highly deplorable behaviour and fail to meet the robust standards required to conduct judicial review work. But despite such abuses no GLD personnel have ever been singled out for disciplinary proceedings for breaching the established standards of conduct. Judicial double standards and favouritism are all too apparent in that regard.

GLD personnel are usually tacky and untalented people. Their skills are generally very basic and they quickly resort to making empty threats and try to scare you. This makes them easy to beat into a pulp and it is enjoyable to gather your own collection of heads because they do indeed make great lifelong trophies. The sloppy template tactics used by the government are only capable of having any effect on weak cases. In fact, if anything, it is quite easy to create a very harsh environment for the Home Office; an environment where only the fittest survive.

When the Windrush scandal first emerged, many extremists supporting the “hostile environment” immediately went up in arms and demanded “real” proof about any “actual deportations” of British citizen Windrush migrants and their family members. So great is the present culture of disbelief that the suffering that emerged day by day was considered insufficient evidence to confirm racism. For such disbelievers, it was not bad enough that large numbers of innocent people such as Paulette Wilson were detained and made to sign and brutally threatened with removal – further “proof” was required about “actual deportations” for things to be “bad” or “racist”. Now the new Home Secretary Sajid Javid has confirmed that 63 people belonging to the Windrush generation were probably wrongly removed and deported from the UK.

Indulging in toxic levels of racism has always been a natural state for the Home Office. Overall, Theresa May’s insane pet project of pursuing Stalinist “deportation targets” in the crazy “hostile environment” has only exposed the deep degree of division in British society. The extent of institutional racism in truly shocking for an advanced democratic country. Bullying black people merely set the stage for the onslaught that will be unleashed on Europeans because of ongoing Brexit frenzy. As a precursor, it was just a warm up act – or what Jimi Hendrix called “tune up time” – and a similar fate probably awaits the UK’s population of three million EU citizens in future times.

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Article 8, Automatic Deportation, Children, Costs, Court of Appeal, ECHR, Extradition, Families, Immigration Act 2014, Immigration Act 2016, Immigration Rules, Judicial Review, Misconduct, Politics, Proportionality, Racism, Tribunals, UKSC, Windrush and tagged , , , , , , , , , . Bookmark the permalink.

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