Neutral Citation Number: [2017] EWCA Civ 362
Case No: C5/2014/1866
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
Upper Tribunal Judges Jordan and Reeds
IA/15023/2013, [2014] UKAITUR IA150232013
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 24/05/2017

Before:

LADY JUSTICE RAFFERTY
SENIOR PRESIDENT OF TRIBUNALS
and
LORD JUSTICE HENDERSON
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Between:

	HARJINDER SINGH (INDIA)	Appellant	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	

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Mr. Zane Malik and Mr. Rajiv Sharma (instructed by Malik Law Chambers Solicitors) for the Appellant
Ms. Lisa Busch QC (instructed by Government Legal Department) for the Respondent

Hearing date: 4 May 2017
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Judgment Approved
Sir Ernest Ryder, Senior President: 

Background:

1.	This is an appeal against the determination of Upper Tribunal Judges Jordan and Reeds who on 5 February 2014 dismissed the appellant’s appeal against the determination of Tribunal Judge Chamberlain in the First-tier Tribunal.  The FtT found that the Secretary of State had made a lawful decision in refusing the appellant’s application for leave to remain in the United Kingdom outside the Immigration Rules.  The UT found that the Secretary of State had made a decision that was not in accordance with the law but which on the merits was right and accordingly should not be set aside.  The consequence is that removal directions subsequently made by the Secretary of State will take effect unless any new application is made.

2.	The appellant was born in 1964. He is a citizen of India. He arrived in the United Kingdom on 27 September 2001 as a visitor with leave to enter until 6 March 2002.  After that date he remained as an overstayer.  On 18 November 2010, by which time he had been in the UK for nine years, he applied for leave to remain on the basis that his removal would violate his rights under the ECHR. The Secretary of State refused his application on 18 December 2010. He applied again on 5 July 2012, this time for leave to remain outside the Immigration Rules on compassionate grounds after nearly 11 years in the UK.  The Secretary of State again refused his application. 

3.	The Secretary of State’s decision letter sets out her reasons which were based upon the assumption that the Immigration Rules introduced on 9 July 2012 applied to the appellant’s 2012 application. That assumption was said to be mistaken:  it was common ground before the FtT and the UT that the earlier Immigration Rules were applicable (in accordance with the transitional provisions of the new Rules).  Before this court both parties have acknowledged that the issue is not clear cut and that there are conflicting decisions on the point.    As a consequence it should not be assumed that the new Rules did not apply but, given that the Secretary of State has not issued a Respondent’s Notice, the appeal to this court has proceeded on the basis that the assumption was mistaken and that the Secretary of State’s decision involved an error of law.

4.	The appellant appealed the decision to the FtT. The decision maker’s error was not drawn to the attention of that tribunal. In a judgment dated 15 November 2013 the FtT dismissed the appeal. 

5.	The FtT’s reasoning involved an analysis of the merits of the appellant’s human rights claim.  The judge noted at the outset that the appellant could not satisfy the provisions of the new Immigration Rules i.e. Appendix FM and paragraphs 276ADE to DH. He accepted that which had been agreed at the hearing namely, that in the absence of any substantial article 8 family life, the appeal rested on a consideration of the appellant’s private life. The judge conducted his analysis using the well known framework described by Lord Bingham in R (Razgar) v. Secretary of State for the Home Department [2004] UKHL 27, [2004] AC 368.

6.	The judge came to the conclusion that the appellant had in his private life sufficient to engage article 8. He also decided that removal from the UK was an interference justified by reference to Razgar steps three to five i.e. lawfulness, necessity and proportionality in the following way:
a.	The proposed interference would be in accordance with the law, as the decision was taken within the Immigration Rules.
b.	Maintaining the integrity of the Immigration Rules was a significant public interest factor.
c.	The appellant did not meet the requirements of the Immigration Rules, and this should be taken into account.
d.	The appellant’s immigration history was adverse to him.
e.	The appellant’s role in the community was not vital.
f.	The appellant could continue his relationships remotely from India.
g.	The appellant had spent most of his life in India and had ties there.
h.	The appellant had no significant relationships with family members in the UK.

7.	As a consequence of that analysis, the judge concluded there was no merit in the appeal and dismissed it.

8.	The appellant appealed to the UT. His sole ground of appeal was that the Secretary of State had erred in law by applying the new Immigration Rules. In submissions, the appellant sought to place this error within the FtT’s Razgar analysis. Since the third Razgar question asks whether or not the interference was in accordance with the law, the appellant’s case was that the FtT should have answered this question in the negative i.e. the interference with the appellant’s article 8 rights could not be justified with the consequence, it was submitted, that the UT should have set aside the FtT’s determination and remitted the case to be re-decided by the Secretary of State or more accurately to await a fresh and lawful decision by her.

9.	The UT accepted that the Secretary of State’s decision was not made in accordance with the law: 

“. …we accept that the decision of the Secretary of State (a) directed as it was towards the wrong Immigration Rules and (b) omitting a decision on Article 8 in its scope outside the Immigration Rules was not in accordance with the law. That is uncontroversial.”

10.	The UT commented that the appellant’s case rested on the elision of two separate questions namely, whether a decision is in accordance with the law and whether the interference is in accordance with the law.  It is the latter which forms the basis of the Razgar analysis and the appellant’s concentration on the former arguably obscures the decision making function that the FtT and the UT performed.  That said, the UT accepted that the FtT’s consideration of the article 8 claim outside the Rules may have been “tainted” by the FtT’s mistaken view of which Rules applied.  

11.	The UT did not regard itself bound to remit the decision to the Secretary of State to remake the same.  It held that:
“A decision that is not in accordance with the law does not automatically need [to] go back to the drawing board; this will depend upon what additional purpose is to be served by doing so.”

12.	The UT remade the decision for the following reasons:
“the outcome…was never in doubt”
[…]
“reconsideration…has no realistic prospect of a different result” 
[….]
“There would therefore be no discernible benefit to the appellant in this process…”.

13.	The UT held that the appellant’s removal would be proportionate:
“Even adopting the widest margin to the private life developed by this appellant, it did not approach a case where removal was not a proportionate response.
[…]
“The decision to remove the appellant was, in our view, a proportionate one.”

14.	The UT concluded that:
“We have found that the Secretary of State made a decision which was not in accordance with the law and that the First-tier Tribunal Judge was similarly in error. In both cases, however, the ultimate decision would have been the same even if the error had not occurred. In accordance with section 12(2) of the Tribunals, Courts and Enforcement Act 2007, having found the decision of the First-tier Tribunal Judge involved the making of an error on a point of law, we decline to set aside his decision.”

15.	Furthermore, having regard to the overriding objective, the UT decided that to remake the decision was the most effective, fair and speedy process consistent with its obligation to determine matters fairly and justly which includes by avoiding delay.  Accordingly, in a determination promulgated on 5 February 2014, the UT dismissed the appeal.

Legal Framework:

16.	The relevant statutory scheme is to be found in the Nationality, Immigration and Asylum Act 2002.  Section 82 of that Act provides the mechanism for appealing to the FtT against certain immigration decisions of the Secretary of State (with the categories of relevant decision having been narrowed by a 2014 amendment).  The right of appeal in this case arises under section 82(2)(g): “a decision that a person is to be removed from the United Kingdom by way of directions…”.  

17.	An appeal under section 82 must be brought on one or more of the grounds described in section 84(1).  The relevant ground in this case is section 84(1)(e), which is that “the decision is otherwise not in accordance with the law”.  The determination of an appeal brought under these sections is governed by section 86 and in particular sections 86(3) and 86(6).

18.	Until October 2014, sections 86(3) and 86(6) provided as follows:
“(3) The Tribunal must allow the appeal in so far as it thinks that— 
(a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or
(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.”
		[…]
“(6) Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b).”
 
19.    Appeals from the FtT to the UT are governed by section 12 of the Tribunals, Courts and Enforcement Act 2007:
“12 Proceedings on appeal to Upper Tribunal
(1) Subsection (2) applies if the Upper Tribunal, in deciding an appeal under section 11, finds that the making of the decision concerned involved the making of an error on a point of law.
(2) The Upper Tribunal–
(a) may (but need not) set aside the decision of the First-tier Tribunal, and
(b) if it does, must either–
(i) remit the case to the First-tier Tribunal with directions for its reconsideration, or
(ii) re-make the decision.
(3) In acting under subsection (2)(b)(i), the Upper Tribunal may also–
(a) direct that the members of the First-tier Tribunal who are chosen to reconsider the case are not to be the same as those who made the decision that has been set aside;
(b) give procedural directions in connection with the reconsideration of the case by the First-tier Tribunal.
(4) In acting under subsection (2)(b)(ii), the Upper Tribunal–
(a) may make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision, and
(b) may make such findings of fact as it considers appropriate.”

Discussion:

20.    This decision is limited to decisions on human rights grounds outside the Immigration Rules.  There is a single ground of appeal:
“[Whether] on a proper construction of the appeal provisions in the Nationality, Immigration and Asylum Act 2002, it was not open to the Upper Tribunal to dismiss the Appellant’s appeal following its finding that the immigration decision was not in accordance with the law.”

21.     The appellant’s skeleton argument focuses on section 86 of the 2002 Act.  In attractive submissions on his behalf, Mr Malik submits that the FtT has an obligation to allow an appeal if it concludes that the Secretary of State’s decision is not in accordance with the law.  The appellant says that a proper construction of section 86(3) requires the tribunal to allow the appeal if the relevant decision is not in accordance with the law.  Even non-material errors must be treated in the same way. That is said to be the effect of the use of the word “must” in section 86(3).  It is submitted that any disproportionality in the outcome can be met by the power in the FtT to allow an appeal in part.

22.    The appellant further submits that Section 12 of the 2007 Act, dealing with the UT’s power to determine an appeal, is of no assistance. He accepts that the UT is not obliged to set aside FtT decisions containing errors of law but submits that if the UT chooses to remake the FtT’s decision, it must do so in accordance with the obligations that were incumbent upon the FtT.  Although that submission is unremarkable, the appellant goes on to submit that the FtT is required to remit an unlawful decision to the decision-maker.

23.     The appellant accordingly submits that this Court should allow the appeal, set aside the decisions of the FtT and UT, and “substitute a new decision allowing the Appellant’s appeal only to the limited extent that the Secretary of State’s decision was not in accordance with the law” with the consequence that the Secretary of State would need to reconsider the application afresh. 

24.	The construction of section 86(3) that the appellant contends for would create an obligation on the tribunal to mark any part of a decision that is not in accordance with the law with an order that allows an appeal against it, despite its lack of materiality in the end result.   The appellant points to the power in section 87 permitting the tribunal to give a direction to the Secretary of State for the purpose of giving effect to its decision, presumably to guard against an unintended consequence of the strict interpretation contended for.  He submits that the purpose of the statutory scheme is met by such a construction because the tribunal will have identified and corrected an unlawful decision and that is the purpose of section 86(3) when read together with section 84(1)(e).  In so far as it is relevant, he also points to the recent decision of this court in appeals from the judicial review jurisdiction of the UT in immigration when the court identified the default position as that an original unlawful decision should be quashed when a fresh decision was unimpeachable: Caroopen v Secretary of State for the Home Department; Marie v Secretary of State for the Home Department [2016] EWCA Civ 1307 at [47] and [63].

25.	It is submitted that it would be surprising if the approach to judicial review appeals should be different from the approach to statutory appeals.  For reasons which I shall explain, the approach ought to be different in at least one respect which is that in statutory appeals where the decision of the Secretary of State is said to be in breach of the appellant’s ECHR rights, the tribunal must decide the issue for itself.  That distinction was acknowledged by this court in Caroopen at [70] based on long-standing authority.

26.      The Secretary of State submits that:
a.	When the FtT identifies an error in her decision, it is able to go on to consider whether, if she had not made the error, she would nevertheless have been entitled to reach the same decision. 
b.	The FtT is entitled to look at a case in the round in order to establish whether or not the original decision, in terms of its outcome, was a lawful one. That is consistent with the terms of section 86(3). 
c.	This interpretation is reinforced by practice. When this court identifies an error in the Secretary of State’s original decision, it will often remit the decision to the FtT to make a substantive decision (see, for example Baig v Secretary of State for the Home Department [2005] EWCA Civ 1246). This demonstrates that the existence of the error does not automatically oblige the FtT to remit the decision to the Secretary of State.

27.	In addition, the Secretary of State relied on the UT’s own reasoning as follows:
“[18] … Were the Tribunal permitted only to make a declaration to that effect and require the Secretary of State to make a fresh decision, the Tribunal’s function would be substantially emasculated and its original jurisdiction to make a decision for itself (or, on appeal, to re-make a decision), would be significantly reduced.  It would be a surprising result if the Tribunal and the Courts have, in the past, overlooked what Mr. Malik submits is the central importance of first identifying whether the Secretary of State’s decision is lawful and only when it has concluded that it is, going on to consider whether it is the correct one.”
[…]
“[19] ​The issue raised in Mr. Malik’s submissions is, essentially, in what circumstances is the tribunal permitted to conclude the process initiated by the Secretary of State, notwithstanding the fact that the Secretary of State’s decision is unlawful?”
[…]
“[23] The fact that the Secretary of State always retains a discretion outside the Immigration Rules, outside the Refugee Convention or the ECHR or European law does not mean the Tribunal has to divest itself of jurisdiction where an unlawful decision is made by the Secretary of State.  Since, by reason of his immigration history and the facts of his case, the appellant had no right to remain under the Immigration Rules, his application for leave to remain was perforce made outside the Immigration Rules and seeking a discretionary remedy.  The Secretary of State reached a decision to refuse that application and, disjunctively as it were, reached an unlawful decision on the appellant’s human rights’ claim.  That, alone, however, does not cause the need to arise for the Secretary of State alone to re-make her decision.  The First-tier Tribunal, in assessing the wider Article 8 claims of the appellant, is capable of righting the error that has crept into the decision-making process and where (as happened here) the First-tier Tribunal inadvertently fell into error, the Upper Tribunal is able to correct the error.” 

28.	The question that is implicit in the ground of appeal is: how should the immigration and asylum tribunal approach a decision made on behalf of the Secretary of State which it is said breached the appellant’s article 8 rights when a human rights decision outside the Rules is challenged on appeal?

29.	Although the answer to the question was arguably settled as long ago as in 2007 in R (Huang) v Secretary of State for the Home Department [2007] 2 AC 167 it is convenient that it is re-stated given the number of occasions on which the ground of appeal settled in this case is pursued without merit.  In reviewing the direct and indirect impacts of the Human Rights Act 1998 on immigration decision makers and the (then) appellate immigration authorities, Lord Bingham reviewed the relevant legislation and concluded that:

“These provisions, read purposively and in context, make it plain that the task of the appellate immigration authority, on appeals on a Convention ground against a decision of the primary official decision-maker refusing leave to enter or remain in this country, is to decide whether the challenged decision is unlawful as incompatible with a Convention right or compatible and so lawful.  It is not a secondary, reviewing, function dependent on establishing that the primary decision-maker misdirected himself or acted irrationally or was guilty of procedural impropriety.  The appellate immigration authority must decide for itself whether the impugned decision is lawful and, if not, but only if not, reverse it.”

30.	There is nothing in subsequent legislation or case law concerning applications outside the Rules that displaces the general principle which Lord Bingham described and which underscores the immigration and asylum tribunal’s function as a merits determination.  There are, of course specific functions of an immigration and asylum tribunal that are constrained by subsequent legislation and to those I will briefly return.  Although described in the context of asylum applications it has been the principle since at least 2004 that the tribunal is an extension of the decision making process in human rights cases (see Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97 at 112) reflecting the undoubted practice before the modern tribunal system came into being that appeals tribunals have some powers of decision making sufficient to substitute a decision for the decision appealed against: R (IB) 2/04 at [18].  

31.	All of this is reflected in the Practice Statement issued by the Senior President of Tribunals on 25 September 2012 which describes the decision making functions of the UT on appeal from the FtT.  That has been considered by this court as recently as in 2015 in JA (Ghana) [2015] EWCA Civ 1031.  There is nothing in this case that draws a valid distinction with the conclusion reached in that case. 

32.	It is as a consequence now well established that in human rights cases the tribunal will consider the evidence that is relevant to the decision in question at the date of the hearing.  Its task is to consider the evidence afresh.  The tribunal accords appropriate weight to the judgment of the decision maker who has access to specialist sources of knowledge and advice while at the same time exercising a merits jurisdiction on all of the evidence properly available to it.

33.	When doing so the tribunal is not limited to a secondary reviewing function such as would be appropriate in judicial review unless Parliament constrains the function of the tribunal in that or any similar way.  Parliament has done so on more than one occasion, for example by removing a right of appeal or by imposing a judicial review test rather than a merits test upon certain appeals. When not so constrained, the tribunal is part of the decision-making process.  Its appellate function is an extension of the decision making function.  The tribunal stands in the shoes of the decision maker.  It is independent of the Executive but undertakes the same task by applying the Immigration Rules and such other policy guidance as the Executive may lawfully promulgate within the statutory scheme.  The tribunal may differ from the Secretary of State’s view about a particular public interest that is in play in a particular case but must always in so doing provide a reasoned conclusion including by reliance upon country guidance or other authoritative specialist materials.

34.	There will be cases where the tribunal is faced with evidence that concerns matters of policy on which the Legislature and/or the Executive have greater institutional competence than has a court or tribunal.  That said, the tribunal’s function is to decide appeals on the evidence that is available and the necessity to remit a case for a fresh decision by the Secretary of State ought to be confined to cases where the policy or its application is more appropriately exercised by the Secretary of State than the courts or tribunals.  Human rights issues are the commonplace material of the tribunal’s day-to-day decision making.  It cannot realistically be suggested that as a matter of principle such cases ordinarily need to be remitted to the Secretary of State for a fresh decision.  

35.	If, as was the case here, the application is for leave to remain outside the Rules, then that is an application for a discretionary remedy outside the Rules as distinct from the exercise of a discretion within the Rules.  It falls within section 86(6) of the Act.   Section 86(3)(b) does not apply to it.  As a matter of statutory construction section 86(3)(a) does apply to it and if the tribunal is to be an extension of the decision making process in such cases then the subsection should be read in the context of the statutory scheme and the long-standing authorities binding on this court that I have described.  I would accordingly hold that a decision of the Secretary of State is not in accordance with the law within the meaning of section 86(3)(a), with the consequence that the appeal must be allowed, only when it is the decision read as a whole which is unlawful.  The mere presence within the decision of an immaterial error of law does not make the decision itself one which is to any extent unlawful, nor does the presence of such an error require the appeal to be allowed solely in order that it can be corrected.  

36.	The consequence is that a decision of the kind made in this case can be re-made by the FtT.   If the FtT has that competence then so does the UT.  The decision of the UT in this case was accordingly correct and I would dismiss this appeal.

Lord Justice Henderson:

37.	  I agree.

Lady Justice Rafferty:

38.	  I also agree.