Court of Appeal warns Upper Tribunal against seeking conformity in the outcome of deportation appeals

Hot on the heels of the recent case of HA (Iraq) v SSHD [2020] EWCA Civ 1176, the Court of Appeal today handed down judgment in AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296, allowing the Appellant’s deportation appeal.

The Court again considered the proper approach to the unduly harsh test, as well as the extent to which an offender’s rehabilitation is relevant to the proportionality of deportation.  Importantly, the Court of Appeal took the opportunity to remind the Upper Tribunal of the limits of its role, and the need for FTT Judges to be able to make their own value judgments.

Lord Justice Popplewell concluded, at paragraph 41 of the judgment

“This appears to me to be a case in which the Upper Tribunal has interfered merely on the grounds that its members would themselves have reached a different conclusion.  That is impermissible.  I appreciate that under the tribunal system, established by the Tribunals Courts and Enforcement Act 2007 Act, the Upper Tribunal is itself a specialist tribunal, with the function of ensuring that First-tier Tribunals adopt a consistent approach to the determination of questions of principle which arise under the particular statutory scheme in question by giving guidance on those questions of principle: see per Lord Carnwath JSC in the tax context in HMRC v Pendragon Ltd [2015] UKSC 37 at [48] and Baroness Hale PSC in the immigration context in MM (Lebanon) v Secretary of State for the Home Department [2017] 1 WLR 771 at [69] to [74].    However it is no part of such function to seek to restrict the range of reasonable views which may be reached by FTT Judges in the value judgments applied to the many different private and family life circumstances which make almost all cases in this area different from each other.  It is emphatically not part of their function to seek conformity by substituting their own views as to what the outcome should be for those of first instance judges hearing the evidence…”   

The Secretary of State’s application for permission to appeal to the Supreme Court was refused, but it remains to be seen whether, if that application is renewed, the Supreme Court will wish to address the guidance handed down in HA and reiterated in this case.

The Appellant was represented by David Lemer, instructed by Tamana Aziz of Duncan Lewis solicitors.