Upper Immigration Tribunal – “robust” comments may be acceptable



It was one of those curious and complicated stories that sometimes emerges from the Upper Tribunal. Mr Victor Ortega, an Ecuadorian national, had come to the UK illegally and, after a few years, had sought to regularise his status in the UK by making an immigration application pursuant to Article 8 of the European Convention on Human Rights – the Article that governs “private and family life” principles. His application was based on his relationship with a British woman and her British child (of whom he was not the father).

The Home Office refused his application – and his application was not assisted by the fact that he had a criminal conviction for possession of a false identity document. He appealed to the First-Tier Immigration Tribunal but they dismissed his appeal. He appealed to the Upper Immigration Tribunal against the First-Tier Tribunal’s decision. The Upper Tribunal identified “errors of law” in the First-Tier Tribunal’s decision and they remitted the case back to the First-Tier Tribunal for them to make a fresh decision.

Do you follow so far? Good, well, this is where things become darkly amusing. It is important to understand that the concept of an “error of law” includes an error of fact, if it is something material and significant. The Upper Tribunal identified such errors in the First-Tier Tribunal Judge’s decision, ie (a) an assertion that the appellant had been convicted of possession of controlled drugs and (b) an assertion or implication that he was a Jamaican national – both of which were of course were quite wrong. (We wonder if it is possible that the judge was using a template of some kind.) And the Upper Tribunal also found fault with the judge’s Article 8 analysis.

So the case came before the First-Tier Tribunal again, but this time – as is always the way – with a different judge. The appellant (and presumably his lawyers) no doubt hoped that he would receive a more favourable treatment from the new judge – Judge G Jones QC.

Alas, it was not to be. Judge Jones also dismissed the appeal. Now the appellant appealed again to the Upper Immigration against the new First-Tier Tribunal decision and the Upper Tribunal made another decision.

If by any chance you are still with us you may find some aspects of the new Upper Tribunal decision quite engaging. It was quite obvious that Judge Jones’s decision was, shall we say, strongly opinionated. But was it legally wrong? Did it contain any material errors? This was the question that the Upper Tribunal had to decide. If it did then there was the remarkable possibility that the case would be remitted again to the First-Tier Tribunal for a third hearing.

The appellant had alleged, inter alia, that Judge Jones had displayed bias against him. We have some sympathy with this view. Judge Jones had said in his decision that the appellant displayed “criminal tendencies and a lack of moral fibre”. As the appellant said in his argument, this seemed like a personal attack.

Perhaps the Upper Tribunal had some sympathy as well, but not enough. They accepted that some of Judge Jones’s language had been “robust”, and they said that “it might be preferable for criticism of the appellant to be expressed in more temperate language”, but on the other hand this comment was legitimate and did not display bias. As the Upper Tribunal put it: “the decision does not show improper impartiality but conclusions which, albeit strongly expressed, were legitimately open to the judge on the material before him.”

And Judge Jones had also been highly critical of a report prepared by a social worker which the appellant had produced before the Tribunal. In comments which demonstrated to an extreme extent the difference in mentality between a social worker and a judicial decision-maker, he said: “It is apparent from reading her report that she simply accepted at face value everything that was asserted to her. I have been unable to ascertain to what extent, if any, she approached such assertions with an enquiring mind.” And “It is not, in any true sense, an expression of expert opinion formed after considering objectively ascertained facts.”

But again the Upper Tribunal did not think that this had gone too far. They said Judge Jones had been entitled to find that the social worker’s report “albeit prepared in good faith… did not attract weight”. Not surprisingly, the appellant’s appeal to the Upper Tribunal was dismissed.

So there we are. The Upper Tribunal seemed to make gentle criticisms of Judge Jones’s style but not of his intellectual and legal content. If you find yourself in front of the Immigration Tribunals you most definitely need to have your case prepared as well as possible and good legal representation. Hopefully this may minimise “robust” criticism from the judge.

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