Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00582/2018

THE IMMIGRATION ACTS

Heard at Field House, London
Decision & Reasons Promulgated
On Wednesday 6 July 2022
On the 21 July 2022

Before

HIS HONOUR JUDGE BIRD
UPPER TRIBUNAL JUDGE SMITH

Between

GODWIN IKENNA NWAOFOR
[NO ANONYMITY DIRECTION MADE]
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Yeo, Counsel instructed by Ineyab solicitors
For the Respondent: Ms H Gilmour, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant appeals against the decision of First-tier Tribunal Judge Herlihey promulgated on 9 August 2021 (“the Decision”). By the Decision, the Judge dismissed the Appellant’s appeal against the Respondent’s decision dated 12 September 2018 making a deportation order against him pursuant to the Immigration (European Economic Area) Regulations 2016.

2. It was accepted by the Respondent that the Appellant had acquired permanent residence in the UK. The Judge found that the Appellant posed a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. She also concluded that deportation would be proportionate. The Judge also dismissed the Appellant’s human rights appeal, finding that deportation would be a proportionate interference with the Appellant’s family and private life.

3. The Appellant challenged the Decision on a number of grounds. In broad summary, those were that the Judge had wrongly attributed the burden of proof to the Appellant, that the Judge had failed to explain why there were imperative grounds for deporting the Appellant, that the Judge had failed properly to consider the prospects of rehabilitation and that she had reached a conclusion in relation to risk which was not open to her on the evidence. The Appellant also challenged the Judge’s findings in relation to Article 8 ECHR.

4. Permission to appeal was refused by First-tier Tribunal Judge Saffer on 1 November 2019 on the basis that the grounds were no more than a disagreement with the Decision and that “[o]n the facts as found, there is no realistic prospect a different Judge would make a different decision even if the wrong tests and burdens were used (which has not been established in the application)”.

5. Permission to appeal was subsequently refused also by Upper Tribunal Judge Coker on 13 January 2020 in the following terms:

“1. The grounds relied upon are diffuse and do not directly identify an arguable error of law by the First-tier Tribunal judge that the appellant was not socially and culturally integrated; there is no arguable error of law that the appellant was only entitled to the second level of protection.
2. The judge identified the evidence before him and reached detailed conclusions why he did not accept and place weight upon the letter from the probation officer.
3. The judge applied the correct burden and standard of proof in reaching his findings of fact and applied those factual findings to the relevant test.
4. The findings are not arguably perverse or irrational and were plainly open to the judge.
5. The decision the subject of challenge is neither arguably perverse, nor arguably irrational and there is no identifiable arguable material error of law.”

6. Following a “Cart” challenge to the Administrative Court, permission to challenge Judge Coker’s decision was granted by Mr Justice Kerr on 2 July 2020. Neither the Tribunal nor the Respondent sought a hearing following the grant of permission and therefore the decision of Judge Coker was overturned by Mr Justice Calver on 1 October 2020. In his order he ordered that the Appellant’s application for the costs of the “Cart” proceedings be transferred to the Upper Tribunal for determination. He made the following observation in that regard:

“By letter dated 11 February 2020 the Interested Party [the Respondent in this appeal] suggested that the most appropriate order as to costs would be that the costs of the application in the Administrative Court be treated as costs of the appeal before the Upper Tribunal, following Faqiri [2019] EWCA Civ 151. However, the order I have made reflects the subsequent decision of the Court of Appeal in JH (Palestinian Territories) [2020] EWCA Civ 919 at [29] in which Faqiri was considered and its effect confined to cases in the same jurisdiction.”

7. Following the quashing of Judge Coker’s refusal of permission to appeal, the Vice President of the Upper Tribunal granted permission to appeal on 16 May 2022.

8. The matter came before us to determine whether the Decision contains an error of law and, if we so concluded, to consider whether to set it aside. If the Decision is set aside, it is then necessary for the decision to be re-made either in this Tribunal or on remittal to the First-tier Tribunal.

9. As we come to below, following Mr Yeo’s submissions in relation to the Appellant’s main ground of appeal, Ms Gilmour conceded that there is an error of law in the Decision. Although she submitted that the outcome of the appeal may well be the same, she did not seek to argue that the error identified was not material. She accepted that it infected the whole of the Decision and agreed that the Decision should be set aside in its entirety. Both representatives agreed that the appropriate course would be to remit the appeal to the First-tier Tribunal for redetermination.

10. In light of the Respondent’s concession which we accept is correctly made, we confirmed that the Decision would be set aside and the appeal remitted. We indicated that we would provide our reasons briefly in writing which we now turn to do.

DISCUSSION

11. The main ground put forward by the Appellant and on which Mr Yeo focussed is that Judge Herlihy wrongly attributed the burden of proof to the Appellant instead of the Respondent. Mr Yeo submitted that this was a “foundational error” through the prism of which the Judge had reached her other findings. He submitted that it was therefore clearly material.

12. At [6] of the Decision, Judge Herlihy said this:

“I have directed myself as to the appropriate burden and standard of proof. The burden of proof lies upon the Appellant. The standard of proof in relation to the appeal under the EEA Regulations is on the balance of probabilities. He has to prove to that standard that the decision of the Respondent was not in accordance with the EEA Regulations.”

13. As Ms Gilmour accepted, that is fundamentally a wrong statement of the law. It is for the Respondent to demonstrate that the Appellant poses a sufficient risk and not for the Appellant to show that he does not.

14. In terms of the application of that test, as the Appellant points out, at [38] to [45] of the Decision, the Judge has clearly placed the burden on the Appellant. At [38] of the Decision, the Judge noted the Appellant’s failure to produce an OASys report. At [40] of the Decision, the Judge referred to “the lack of evidence to support what the appellant’s probation officer has said”. At [41], “[i]n considering the dynamic risk factors, [she did] not find the appellant has established that the risks of reoffending or harm to others are significantly reduced”. At [45] of the Decision, the Judge found there to be “no evidence before [her] that the actors which triggered the Appellant’s initial offending no longer exist and in the absence of such evidence, [she could not] find that the behaviour which triggered the appellant’s involvement with the offence have been addressed”. Those are but a few examples but show that the Judge was requiring the Appellant to show that he no longer posed a risk rather than requiring the Respondent to show that he did. That is a wrong application of the burden of proof.

15. For those reasons, we are satisfied that the Appellant has shown that the Decision contains errors of law and that the Respondent’s concession in that regard is rightly made.

CONCLUSION

16. We therefore conclude that the Decision contains a fundamental error of law which infects the whole of the Decision. We therefore set aside the Decision. It is not appropriate to preserve any part of the Decision. As the appeal will have to be redetermined entirely afresh, it is appropriate to remit the appeal to the First-tier Tribunal to be re-heard.

17. As requested by Mr Yeo, we also draw the First-tier Tribunal’s attention to what is said at [6] above in relation to the costs of the “Cart” proceedings. As both representatives agreed, it will be for the First-tier Tribunal to determine those costs as costs of the appeal and therefore when the outcome of the appeal is reached.

DECISION
We are satisfied that the Decision involves the making of a material error on a point of law. The Decision of First-tier Tribunal Judge Herlihy promulgated on 9 August 2019 is set aside. No findings are preserved. The appeal is remitted to the First-tier Tribunal for re-hearing before a Judge other than Judge Herlihey. The First-tier Tribunal will also need to determine the costs of the “Cart” proceedings as costs of the appeal.

Signed L K Smith Dated: 12 July 2022
Upper Tribunal Judge Smith