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Court of Appeal allows appeal against deportation order approved by Upper Tribunal on grounds of identifying procedural unfairness in decision making and findings of fact

Friday 10 July 2020

David Jones and Tim Baldwin of the Garden Court Chambers Immigration and Public Law Teams appeared for the Appellant in the case of A v SSHD [2020] EWCA Civ 858 instructed by Rachel Meates of Irving and Co Solicitors.

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This important case concerned the lawfulness of a deportation order made in respect of an individual married to an EEA national in which the Home Office alleged A was the head of an organised crime family. The Court has issued two judgments, an open public judgment and closed confidential judgment due to the sensitivity of the factual issues in the case. The appeal was a 2nd appeal in the Court of Appeal on grounds of general public importance and it was in respect of a decision made by the Upper Tribunal not to interfere with a deportation order on the hearing of fresh confidential evidence. The Court of Appeal hearing was held in private and an anonymity order applies.

The case raised important issues with regard to procedural fairness and evidence in statutory appeals before the Upper Tribunal of the Immigration Asylum Chamber when re-making of a decision on new evidence. Three grounds of appeal were raised with the court allowing the appeal on the first ground. It was accepted by the court and between the parties that if ground 1 succeeded then there was no real need for the court to make a decision on grounds 2 and 3 as they had effectively become academic as any finding of the Tribunal under grounds 2 and 3 were parasitic on the Tribunals approach to evidence, procedural fairness and fact finding of the Upper Tribunal being correct.

The impact of the decision is necessarily limited by appropriately tight constraints on publication of the closed judgment but it demonstrates the importance of the Upper Tribunal adopting a strict approach to procedural fairness when considering evidence before it and especially new evidence when making findings of fact. Please find a copy of the open judgment here.

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