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Reported Case

Correct procedure for raising a cross appeal in the Upper Tribunal - Smith (appealable decisions; PTA requirements; anonymity : Belgium) [2019] UKUT 216 (IAC) (25 July 2019)

Date: 25/07/2019
Duncan Lewis, Reported Case Solicitors, Correct procedure for raising a cross appeal in the Upper Tribunal - Smith (appealable decisions; PTA requirements; anonymity : Belgium) [2019] UKUT 216 (IAC)



This judgement gives guidance to practitioners on the correct procedure for raising a cross appeal in the Upper Tribunal.




It further provides guidance on;

  • what constitutes a “decision” for the purposes of S 11 (1) of the Tribunals, Courts and Enforcement Act (TCEA) 2007 and consequently whether there is a statutory right of appeal to the Upper Tribunal or whether the appropriate challenge is by way of Judicial Review;

  • on jurisdiction in European Economic Area (EEA) revocation of deportation appeals;

  • when it is appropriate for the Tribunal to order anonymity.


Background

The case came before a panel including Upper Tribunal President Lane. The appellant is a national of Belgium. He has a number of criminal convictions in the United Kingdom and Secretary of State for the Home Department (SSHD) made a decision to deport him under the EEA Regulations 2006. He was unrepresented, did not appeal and was deported. He returned to the United Kingdom in breach of his deportation order. He attended a DDA surgery where Duncan Lewis were instructed. We applied for exceptional case funding from the Legal Aid Agency (LAA) and then submitted to SSHD an in country application to revoke his deportation order. That application was refused with an in country right of appeal and we appealed on the basis that the decision breached his rights under EU Law and also on human rights grounds; namely Article 8 European Convention on Human Rights (ECHR). The appellant was represented by Jonathan Knight of Duncan Lewis at his First-tier Tribunal (Immigration and Asylum Chamber) (FtTIAC) hearing. In respect of his article 8 appeal he claimed he had an entitlement to British citizenship through his adopted British Father. His appeal before the FtTIAC was allowed under the EEA Regulations and the Judge did not consequently deal with the human rights appeal. The Judge also stated that the correct avenue to challenge the respondent’s decision in respect of the appellant’s entitlement to British Citizenship was by way of Judicial Review.

The matter was then taken over by Van Ferguson of Duncan Lewis when it reached the Upper Tribunal work. The respondent had successfully been granted permission to appeal to the Upper Tribunal. It became clear that we could not defend the Judge’s findings in respect of how he concluded the Appellant had a right of permanent residence. That finding tainted his assessment on whether the Appellant should be deported and was a material error of law. Jenna Mckinney however drafted a “cross appeal” in the Rule 24 response requesting the Upper Tribunal exercise jurisdiction (directly) to grant permission to appeal out of time relating to the FtTIAC Judge’s (non) findings in respect of Article 8 ECHR. She argued that the FtTIAC Judge was seized of jurisdiction in respect of the human rights appeal; it was not open to him just to decide not to deal with it. Further his (non) finding constituted a “decision” for the purposes of S 11 (1) of the TCEA 2007. Additionally she argued if the Article 8 human rights decision under challenge was not in accordance with the law then it could be allowed under the third limb of Razgar. The FtTIAC was the correct fact finding tribunal to deal with this issue if it could (as in this case) rather than instigating parallel Judicial Review proceedings.

A summary of the Rule 24 response is extracted in the Judgement at paragraphs 21 onwards;

The response also, however, contained what was described as a "cross appeal", in which the claimant "hereby makes an application for permission to appeal to the Upper Tribunal (directly) to cross appeal the determination of FTJ Lal in respect of the findings (specifically non-findings) in relation to Article 8 ECHR" (paragraph 16). The response went on to give reasons why the application for permission was being made out of time. As to this, the claimant:-

" ... asks the Court (sic) to note that the [claimant] appealed on two grounds against the decision of the SSHD; firstly that the decision was in breach of EU Law and secondly that the decision breached his rights under ECHR. The appeal was allowed on the former ground and that therefore there was no benefit in him appealing the decision in relation to the latter. If it were the case that Appellant's (sic) should appeal on all grounds (even less favourable) to which they have been successful on it will result in a chaotic administration of the Tribunal appeal system and contrary to the overriding objective in both the FTT and Upper Tier Procedure Rules" (paragraph 18).

22. The response stated that the Secretary of State had made a decision to refuse the claimant's human rights claim and that an appeal against that refusal was, accordingly, before the First-tier Tribunal judge. It "was not open to him to just decide not to deal with it as he did in paragraph 27 of the determination and reasons".

23. The response explained that the claimant's human rights claim was, in part, based on the fact that he contended he had an entitlement to British citizenship through his adopted British father. There was evidence before the First-tier Tribunal to support this contention, including an adoption certificate. The First-tier Tribunal judge, when faced with this submission, declined to deal with it.



Jenna Mckinney further noted there was arguably a jurisdictional issue regarding the right of appeal under the EEA Regulations against a decision to refuse to revoke the deportation order which the Judge appeared not to have noticed. Hence she instructed Counsel, Ben Awumna of the 36 Group who had written articles extensively covering this issue to represent the Appellant in the Upper Tribunal proceedings.

Ultimately, the Upper Tribunal decided that it can grant permission to appeal directly to a party that has not complied with the procedure rules and sought it first from the FtTIAC. This would not be in every case but they agreed this case was not an academic appeal and conferred a material benefit to the Appellant. The panel also decided that the Judge’s lack of decision regarding the human rights appeal did constitute a “decision” for the purposes of Section 11(1) TCEA 2007.

The panel also found the FtTIAC Judge had erred in allowing the appeal under the EEA Regulations due to lack of jurisdiction.

Ben Awumna has written an article on Free Movement blog regarding this case HERE.


Representation

The Appellant was represented in the First Tier Tribunal proceedings by Immigration Caseworker Jonathan Knight of Duncan Lewis Solicitors. He was represented in the Upper Tribunal proceedings by Immigration Caseworker Van Ferguson and Immigration Director Jenna Mckinney of Duncan Lewis Solicitors who instructed Counsel, Ben Awumna of the 36 Group.



 

Find full details of this case on Bailii’s website here.
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