05 Apr 2017, 20 mins ago

The Upper Tribunal has clarified the approach judges are permitted to take in immigration appeals when dealing with decisions that go against Home Office guidance. The determination was clearly made with the intention of avoiding individual injustices but it leaves open questions as to how the appeals regime as amended by the Immigration Act 2014 will operate.

The appellants were a young Albanian mother and her two children, who had a history of non-compliance with immigration laws. It was claimed that the youngest child had obtained British Citizenship through his father, who had naturalised in the UK. There were question marks over the father’s entitlement to British citizenship and the First-tier Tribunal judge concluded that the youngest child was not a British citizen.

The Upper Tribunal found this conclusion had been incorrect but that the appellant’s representative was unable to provide “any reason at all to demonstrate that the decision would, or indeed might, have been different” if the First-tier Tribunal had found the child to be British. Unusually, the Home Office’s representative produced such a reason in the form of a policy document relating to the carers of British citizen children.

The Upper Tribunal went on to consider the question of “whether that guidance as guidance has any impact on the First-tier Tribunal or on us.”

The Tribunal noted that since the amendments brought in by the 2014 Act restricted grounds of appeal, the appellants would not have been able to argue that the decision was “not in accordance with the law”.  However, they went on to state that:

The terms of the guidance are an important source of the Secretary of State’s view of what is to be regarded as reasonable in the circumstances, and it is important in our judgement for the Tribunal at both levels to make decisions which are, as far as possible, consistent with decisions made in other areas of the process of immigration control.

The Tribunal explained that a person who would have been entitled to leave under the guidance should not be disadvantaged because the SSHD failed to properly consider this when coming to a decision, and that:

Where there is clear guidance which covers a case where an assessment has to be made, and where the guidance clearly demonstrates what the outcome of the assessment would have been made by the Secretary of State, it would, we think, be the normal practice for the Tribunal to take such guidance into account and to apply it in assessing the same consideration in a case that came before it.

The difficulty with the determination is that it apparently gives an appellant a remedy at the tribunal when the Home Office has erred in applying the guidance (and surely the Immigration Rules), but little clue as to how appellants can access that remedy. The relationship between human rights arguments (which appellants are now often restricted to) and the tribunal’s ability to assess whether guidance was correctly applied is not clearly made out. It is not explained how an appellant can squeeze arguments into statutorily restricted grounds of appeal in order to get an assessment they are now entitled to. The judgment does not mention at all those who are shut out of the appellate jurisdiction altogether by the restrictions on appealable decisions. There would be many people who could succeed on the basis that the Home Office have improperly applied guidance but who cannot get to the Tribunal because they have not made a refugee or human rights claim.

The determination is a stark reminder of the difficulties judges and appellants are faced with when dealing with the Immigration Act 2014 appeals regime, and the tensions between that act and the interests of justice.