Court of Appeal reaffirms the importance of procedural fairness in FTT appeals: Dahir Elmi Abdi v Entry Clearance Officer [2023] EWCA Civ 1455

This article examines an important authority from the Court of Appeal in Dahir Elmi Abdi v Entry Clearance Officer [2023] EWCA Civ 1455

In this appeal the Appellant complained that the First-tier Tribunal Judge (‘the FTTJ’) who heard the appeal had acted in a procedurally unfair manner by deciding the appeal against the appellant on the basis of a matter which had not been raised by the Home Office in their refusal, and in relation to which the FTTJ gave the Appellant no notice that the issue was one which would be adjudicated upon in determining the appeal.

In this appeal the issue which the FTTJ raised without notice was whether the Sponsor was able to send the level of financial support claimed to the Appellants. So the procedural unfairness emanated from the FTTJ failing to raise a point at the hearing which was not in issue between the parties and had a material bearing on the outcome of the appeal.

The Home Office argued that the particular issue was one which should have been obvious to the Appellant and as such the FTTJ was not only entitled to take the issue into account, but the FTTJ did not have to put the Appellant on notice of it. The Appellant should have been alive to the issue from the outset and the failure to address this issue was the fault of the Appellant’s legal representatives.

The Court of Appeal agreed with the Appellant and remitted the appeal to the First-tier Tribunal to be heard afresh. Writing the leading judgement, Lord Justice Popplewell, with whom Lord Justice Arnold and Lord Justice King agreed, provides a comprehensive review of the relevant authorities regarding procedural fairness, including the recent Supreme Court authority of TUI UK Limited v Griffiths [2023] UKSC 48.

The Court was keen to highlight in a post-script that assessments of procedural unfairness depend on the particular facts of the case. With that in mind, and to ensure that readers gain the best understanding of this judgement the basic facts of this case are set out below.

 Background facts of this appeal:

The Appellants are nationals of Somalia who made an application for EEA family permits under the Immigration Economic Area) Regulations 2016. Their applications were made on the basis that they were extended family members of their Sponsor (brother) who is a national of the Netherlands and living in the United Kingdom (‘the UK’). They claimed to be financially dependent on him for their essential needs.

Along with their applications they submitted supporting evidence of their dependence which included money remittance receipts which showed that their brother was sending them money from the 2019.

The Home Office refused their applications in identical terms. The refusal accepted that the Sponsor was a Dutch national and that the appellants were related to their sponsor. However, the refusal letters did not accept that the financial remittances on their own demonstrated that the appellants were financially dependent on their sponsor. Helpfully the judgement provides the relevant extract from the refusal:

“On your application you state that you are financially dependent on your sponsor. As evidence of this you have provided money transfer remittance receipts from your sponsor to you, however, it is noted that these transfers are dated sporadically from 2019 to 2020. Unfortunately, this limited amount of evidence in isolation does not prove that you are financially dependent on your sponsor. I would expect to see substantial evidence of this over a prolonged period.

I would also expect to see evidence which fully details yours and your family’s  circumstances. Your income, expenditure and evidence of your financial position which would prove that without the financial support of your sponsor your essential living needs could not be met.”

Appeal proceedings before the First-tier Tribunal (IAC):

The Appellants appealed the decision to the FTT. The bundle of evidence included further money remittances covering 2019 to 2021 from the Sponsor to the Appellants. The money transfer receipts bore his name and personal details as the transferor.

At the hearing the Appellants were represented by counsel, however, the Home Office was unrepresented (which is not uncommon). At the hearing the Sponsor gave evidence in accordance with his witness statement and was asked a few supplementary questions by his representative. The FTTJ asked some questions.

The Appellant’s representative made closing submissions and the FTTJ read the refusal letter as the Home Office’s submissions.

The FTTJ dismissed the appeal on the basis that “I am not satisfied that [the Sponsor] is the source of the funds either sent to or used by the appellants for their essential living needs.” This was on the basis of the Sponsor’s draft tax returns for the rax year 2020/2021 which the FTTJ concluded showed that the claimed payments to the Appellants would have meant that the Sponsor had virtually nothing to live on.

Appeal to the Upper Tribunal:

The Appellants appealed to the Upper Tribunal mainly on the basis that the FTTJ made adverse credibility findings against the Sponsor without these being put to him and without them having been relied on by the Home Office in the refusal letters. Thus, it was unfair to rely on this reasoning. They were granted permission to appeal.

The appeal was dismissed by Upper Tribunal Judge Norton-Taylor. In dismissing the appeal, the Judge concluded that it would have been much better if the FTTJ had specifically raised at the hearing any concern with the Sponsor’s ability to remit funds but there was no procedural unfairness. This was because significantly more evidence had been provided to the FTT than in the original applications. The FTTJ had to consider this additional evidence which had not been before the original decision maker. As there was no other evidence of additional income sources it would not have made any difference to the outcome of the appeal had the FTTJ raised the issue.

Thus, there was no procedural unfairness. Further, even if there was due to not raising the issue at the hearing, it would not have made a material difference to the outcome.

Appeal to the Court of Appeal:

The Appellants appealed to the Court of Appeal and were granted permission on two grounds:

• (a) in deciding that Ashkir was not the source of the funds, the FtT Judge made adverse credibility findings against Ashkir without these being put to Ashkir and without them having been relied on by the respondent in its Refusal Letters; it was therefore unfair to rely on this reasoning;

• (b) the Judge failed to make findings as to whether some of the money sent contributed to the appellants’ essential living needs.”

The Home Office took up new points in the form of a Respondent’s Notice which the Court described in stern terms as “hopeless” at [19]. Briefly, the Home Office sought to argue that no evidence was put before the Upper Tribunal as to what had occurred during the hearing before the FTT such as a transcript, a recording, a note from the FTTJ, or a witness statement from the counsel who appeared at the FTT. It was thus not open to the Appellant to argue unfairness as they had no evidential basis for this. Secondly, procedural fairness did not require the FTTJ to put her doubts as to credibility of the Sponsor to the appellants at the hearing.

The Appellants went on to obtain the transcript and in response to this the Home Office argued it should not be admitted as it did not satisfy the criteria in Ladd v Marshall [1954] 1 WLR 1489.

Discussion of procedural fairness and what it requires:

Lord Justice Popplewell began the analysis at [28] by revisiting authorities which addressed procedural fairness in circumstances where there had been a failure to raise a point at a hearing. These authorities were relevant generally and in the context of immigration cases.

The first authority considered was HA v Secretary of State for the Home Department (No 2) [2010] SCIH 28 (a decision of an Extra Division of the Inner House of the Court of Session). This authority made a number of general point about procedural unfairness in the context of immigration appeals, in summary:

1. Subject to the procedural rules governing first instance tribunals, the tribunal has power to decide the procedure it adopts, but in doing so must act fairly.
2. What fairness requires is essentially an intuitive judgment which is dependent on the context of the decision;
3. although it is possible to identify a number of general principles, they cannot be applied by rote identically in every situation. An overall judgment must be made in the light of all the circumstances of a particular case.
4. Whether there is procedural unfairness is fact-sensitive.
5. The tribunal may identify an issue which has not been raised by the parties to the proceedings, but it will be unfair, ordinarily at least, for it to base its decision upon its view of the issue without giving the parties an opportunity to address it upon the matter (see [7]).
6. As an expert body, the tribunal is entitled to reject evidence notwithstanding that the evidence has not been challenged before it. Fairness may, however, require it to disclose its concerns about the evidence so as to afford the parties an opportunity to address them (see [8]).
7. There is, on the other hand no general obligation on the tribunal to give notice to the parties during the hearing of all the matters on which it may relay in reaching its decision (see [10]).
8. Where an applicant can generally be expected to be aware that the tribunal will have to assess their credibility, there will generally be no unfairness in a tribunal proceeding without drawing attention to a point which the applicant could reasonably expect to be plainly relevant to that assessment (at [11]-[12]).

The second authority considered was the authority of The Secretary of State for the Home Department v Maheshwaran[2002] EWCA Civ 173 where the Court drew attention to the difficulties often faced by FTTJ sitting at first instance in immigration cases. In summary the authority provides:

1. There are innumerable decisions which have stressed that the requirements of fairness are very much conditioned by the facts of each case (at [6]).
2. A failure to put to a party a point which is decided against him can be grossly unfair and lead to injustice because he must have a proper opportunity to deal with the point (at [4]).
3. Where much depends on the credibility of a party which has made several inconsistent statements, that party has a forensic problem as to whether to confront them or focus attention elsewhere. Fairness may in some such circumstances require the inconsistencies to be put to the witness but that will not usually be the case. Usually the tribunal can remain silent, especially if the party is represented, and see how the case unfolds (at [5]).

The third authority considered was the recent decision from the Supreme Court in TUI UK Limited v Griffiths [2023] UKSC 48 where the Court emphasised the principle that fairness generally requires that if the evidence of a witness is to be rejected it should be challenged at the hearing so as to give them the opportunity to address the challenge. This is a matter of fairness to the witness as well as fairness to the parties and is necessary for the integrity of the court process in enabling the tribunal to reach a sound conclusion (see §42 – 43, 55 and 70). These points in summary are as follows:

1. The general rule in civil cases is that a party is required to challenge by cross examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses (see §70 (i)).

2. In an adversarial system of justice, the purpose of the rule is to make sure the trial is fair (see §70(ii)).

3. The rationale of the rule (preserving the fairness of the trial) includes fairness to the party who has adduced the evidence of the impugned witness (see §70 (iii)).

4. Maintaining the fairness of the trail includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy. An expert witness, in particular, may have a strong professional interest in maintaining his or her reputation from a challenge of inaccuracy, inadequacy or dishonesty (see §70 (iv)).

5. Maintaining fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself (see §70(v)).

6. Cross examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty (see §70 (vi)).

7. The rule is not to be applied rigidly. It is not inflexible and there is bound to be some relaxation of the rule. The application of the rule depends on the circumstances of the case as the criterion of the overall fairness of the trial. Proportionality applies. (see §70 (vii).

Further, the principle is not absolute and is subject to certain exceptions and is to be applied flexibly in the circumstances of any individual case in the application of the criterion of overall fairness of the trail. The Supreme Court highlighted several examples of the exception to the rule:

1. Where the matter is collateral or insignificant and fairness to the witness does not require there to be any opportunity to answer or explain. Collateral issues will not result in unfairness to a party or interfere with the judge’s role in the just resolution of a case (see §61)
2. Where the evidence of fact may be manifestly incredible and an opportunity to explain on cross-examination would make no difference. This is likely to arise where the assertion made is objectively unsound due to contemporaneous documents rendering the assertion to be incredible (see §62)
3. Where an expert makes a bold assertion of opinion in a report without any reasoning, ipse dixit, to support it. Inadequate reasoning is open to criticism (see §63).
4. Where the expert’s evidence says something “patently absurd, or something inconsistent with the rest of his evidence.” There may be an obvious mistake on the face of an expert report (see §64).
5. Where the witnesses’ evidence of the fact may be contrary to the basis on which the expert expressed his or her view in the experts report such as the report being based on an incorrect or incomplete history, or where the assumptions on which it is founded are not established (see §66)
6. Where an expert has been given an opportunity to respond to criticism of, or otherwise clarify his or her report and fails to do so (see §67).
7. A failure to comply with the requirements of the CPR PD 35 may be a further exception but a party seeking to rely on such a failure would be wise to seek the directions of the trial judge before doing so, as much will depend upon the seriousness of the failure (see §68).

Court of Appeal’s decision:

In applying these principles Lord Justice Popplewell had little hesitation in concluding at [34] that the failure by the FTTJ to give the Appellants and Sponsor an opportunity to address the point on which she decided the appeal was unfair. The refusal letter had not challenged the source of the payments and there was evidence in the Sponsor’s name demonstrating he was the source of the payments. The issues in the refusal did not raise any questions regarding the credibility of the Sponsor. The issue which the FTTJ had to determine was simply the extent of the payments made by him. Although further evidence was adduced before the FTT there was no reason to anticipate an issue as to whether the Sponsor had made the payments. This was clear from the comments made by the FTTJ at the hearing that the issue to be determined was solely dependency in Kenya as identified in the refusal letters.

The Court disagreed with the Home Office submission that the point which emerged from the FTTJ’s decision was one which was obvious to those advising the Appellants and needed to be addressed without any prompting from the Tribunal. The Court found that there was no reason to anticipate a focus on how the Sponsor had been able to afford to remit the money to Kenya [35]. The Court also disagreed that the failure to raise the point had no material impact on the outcome at [37] and cited the authority of SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284 on this point.

The Court had “considerable doubt” whether as a matter of law the source of money is of any relevance to the question of dependency relying on Mahad v Entry Clearance Office [2009] UKSC 16 at §§34 – 36 and 56, which held that using the sponsor as a conduit was held not to affect dependency under the immigration rules. This was not a case in which some obvious inconsistency in the evidence which was being put forward should foreseeably have been addressed without the tribunal specifically raising it [36]. In addition, the Court did not accept that the only inference to be drawn from the draft tax returns relied upon by the Sponsor was that he was a conduit for others’ money or being provided for in kind by others freeing up the money he earned to send to the Appellant [39]. It was not obvious that the draft tax return by a self-employed taxi driver giving an operational profit was conclusive of disposable income.

The appeal was allowed on the basis that the FTTJ’s determination was vitiated by procedural unfairness and remitted the appeal to the FTT for a rehearing.

Comment:

It is important to ensure that the issues which are to be determined by the FTT are set out at the outset. The starting point is the reason for refusal letter which should unequivocally put issues into dispute. This was emphasised in IO (Points in Issue) Nigeria [2004] UKIAT 00179 at paragraph 13 which helpfully set out the principle which is still applicable today:

“13. The Tribunal is well aware the entry clearance officers often work under great pressure. Nevertheless each applicant is entitled to a proper decision. We set out below a summary of the approach that we say should be taken when considering visitor applications and appeals:

…

(b) Applicants are entitled to assume that their ability to satisfy the particular requirements of therules is not in issue unless the Entry Clearance Officers unequivocally puts it in issue.”

This case is instructive as it reaffirms the principles of procedural fairness. In AM (fair hearing) Sudan [2015] UKUT 00656 (IAC) the Upper Tribunal emphasised that if a judge became aware of something material to the appeal which did not form part of either party’s case, this ought to be brought to the attention of the parties at the earliest possible stage and this duty could in principle extend beyond the hearing date. Further, that fairness required a Tribunal to canvas an issue which had not been ventilated by the parties or their representatives in fulfilment of each party’s right to a fair hearing.

In YHY (China)(AP), Re Judicial Review [2014] CSOH 11,the Outer House Court of Session held in in a CART Judicial Review claim that there was procedural unfairness amounting to an error of law where points which were not previously taken against the appellant were taken by a Judge unless there was proper notice.

An Appellant’s skeleton argument (which complies with the Practice Direction) is very important to ensure the issues are identified and ringfenced. A Respondent’s Review which naturally follows after the appellant’s skeleton argument will help to settle the issues in dispute. As a belts and braces approach the issues that the Tribunal are asked to determine should be emphasised at the outset of the hearing. This will ensure that the focus of the appeal is tightly focused on the issues at hand and does not stray into undisputed issues.

The Practice Statement No 1 of 2022 (‘the PS’) emphasises the requirement on the part of both parties in the FTT to identify the issues in dispute and to focus on addressing the evidence and law relevant to those issues in a particularised yet concise manner. This is consistent with one of the main objectives of reform and a modern application of the overriding objective pursuant to rule 2 of the Tribunal Procedure (FTT)(Immigration and Asylum Chamber) Rules 2014. It ensures that there is an efficient and effective hearing, proportionate to the real issues in dispute.

Recent authority from the Upper Tribunal has sought to emphasise the importance of setting out issues and the obligation on all Court users and their representatives to do so: see TC (PS compliance – “issues-based” reasoning) Zimbabwe  [2023] UKUT 00164 (IAC).

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