Shahanas Kanhirakandan v The Secretary of State for the Home Department
[2023] EWCA Civ 1298
Sufia Begum v The Secretary of State for the Home Department
7 February 2023
[2023] UKUT 46 (IAC)
Upper Tribunal
A judge made a mistake by ignoring important letters in a case about whether someone could stay in the UK. A higher court agreed it was a mistake but decided to fix it themselves instead of sending it back to the original judge, because only a small part of the decision was wrong.
Key Facts
- •Sufia Begum, a Bangladeshi national, overstayed her UK visa.
- •She appealed a refusal of her application to remain in the UK based on Appendix FM of the Immigration Rules and Article 8.
- •The First-tier Tribunal (FtT) judge failed to adequately consider three letters from Begum's relatives regarding their inability to support her in Bangladesh.
- •The Upper Tribunal (UT) conceded an error of law by the FtT judge for failing to consider material evidence (the letters).
Legal Principles
Where the UT finds an error of law, it generally remakes the decision, unless the error deprived a party of a fair hearing or necessitates extensive fact-finding requiring remittal to the FtT.
Part 3 of the Practice Direction and paragraph 7 of the Practice Statement, citing AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512
A mistake of fact leading to unfairness is a separate ground for appeal on a point of law.
E v Secretary of State for the Home Department [2004] EWCA Civ 49
In cases of unfairness, remittal to the FtT is a strong general rule, but not absolute. Reasons must be given for not remitting.
MM (Unfairness; ER) Sudan [2014] UKUT 00105 (IAC)
The UT has the power to set aside the FtT decision and either remit the case or remake the decision. Remaking is the normal approach, even if further fact-finding is needed.
Section 12 of the Tribunals, Courts and Enforcement Act 2000
Outcomes
The FtT decision was set aside.
The judge failed to consider material evidence (the letters), constituting an error of law.
The appeal will be redetermined in the UT.
The UT concluded that while there was unfairness, it did not necessitate remittal to the FtT. The error impacted only a discreet part of the proportionality assessment. Many of the FtT judge's findings were sound and will be preserved. The UT weighed the loss of the two-tier process against the importance of a fair hearing.