Case No: C5/2013/0657
Neutral Citation Number: [2014] EWCA Civ 8
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Kekić
DA/00478/2011
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 24th January 2014
Before :

LORD JUSTICE RICHARDS
LORD JUSTICE PITCHFORD
and
LORD JUSTICE McFARLANE
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Between :

	Stalin Rajaratnam	Appellant	
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	Secretary of State for the Home Department	Respondent	

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(Transcript of the Handed Down Judgment of
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Justine Fisher (instructed by M & K Solicitors) for the Appellant
Samantha Broadfoot (instructed by The Treasury Solicitor) for the Respondent
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Judgment
Lord Justice Richards : 
1.	This is an appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) in a case where deportation was resisted on article 8 ECHR grounds based on the relationship between the appellant and his wife.  The central issue is whether the judge in the Upper Tribunal (“the UT”) erred in law or acted unfairly in reopening and departing from findings of fact made by the First-tier Tribunal (“the FTT”) as to the genuineness of the relationship.  The case was listed as “SR (Sri Lanka)” but I can see no reason for the maintenance of anonymity.
2.	The appellant arrived in the United Kingdom in or around 2002.  He was arrested in 2003 as an illegal immigrant.  He then made an asylum claim which failed.  Following his re-arrest in August 2004 he was made subject to reporting restrictions, but he absconded and nothing further was heard about him for several years.  In January 2009, however, he applied for a certificate of approval for marriage to a British citizen, Mrs Nishanthiny Yoganathan.  The certificate was granted and the marriage took place on 12 September 2009.  In May 2010 the appellant was convicted on a count of conspiracy to rob, for which a sentence of three years’ imprisonment was imposed.  This was followed by service of a notice of liability to automatic deportation pursuant to section 32(5) of the UK Borders Act 2007, together with an actual deportation order and a letter giving reasons for deportation.   
3.	The appellant’s appeal to the FTT against the Secretary of State’s decision to make the deportation order was dismissed by a panel determination promulgated on 10 October 2011 (“the FTT’s decision”).  The appellant was granted permission to appeal to the UT.  By a determination dated 2 May 2012 (“the UT’s error of law decision”) a panel of the UT set aside the FTT’s decision for error of law and gave directions for the decision to be remade by the UT.  The matter then came before UT Judge Kekić, who held hearings on 16 August and 8 November 2011 and made a determination dated 19 November 2012 by which she dismissed the appeal (“the UT’s dismissal decision”).  
4.	Permission to appeal to this court against the UT’s dismissal decision was granted by Beatson LJ on two grounds.  In summary, they are that the UT judge erred in law or acted unfairly in reopening and departing from findings of fact made by the FTT and preserved by the UT’s error of law decision; and she acted unfairly in refusing to admit further witness statements at the resumed hearing on 8 November 2011. 
The FTT decision
5.	There were two main aspects to the appellant’s case before the FTT:  (1) that deportation to Sri Lanka would expose him to risk of persecution, and (2) that deportation would be in breach of his right to respect for his family life under article 8.  The FTT rejected the first aspect in emphatic terms, taking as its starting point the 2004 tribunal determination in respect of the asylum appeal, and concluding that the appellant was simply not to be believed in relation to any of the account he now gave.  
6.	The material part of the decision relates, however, to the dismissal of the case under article 8.  The FTT said this on the subject:
“29.  We look next at the issues raised in relation to family life.  It is clear he has formed a relationship with Mrs Yoganathan since 2003 and they have lived together as man and wife for an appreciable time, mainly before marriage but also after marriage which took place in 2009.  It is noteworthy, of course, that the Appellant’s wife does herself come from Jaffna and although she has got family ties in this country and is a British citizen we do not consider that it would be unreasonable to expect her to go back to Sri Lanka with her husband.  There aren’t any children that need to be considered at all in this case.  If that position did pertain then, of course, there would not be any interference with the Appellant’s right to respect for his family life.  If he was going back to Sri Lanka on his own then there would be an interference using the 5 stage approach under Razgar and it would be sufficiently marked such as to engage Article 8 in our judgment.  However, the interference would in all of the circumstances be lawful and it would be for the maintaining of effective immigration control.  The Appellant has been here illegally.  He had failed in his asylum appeal and yet he continued to stay on in this country and indeed went on to commit a very serious criminal offence which has led to the current proceedings.
30.  Before us the Appellant did nothing but try to minimise his involvement in the conspiracy to rob which we note from the remarks of the sentencing judge was described as a ‘very serious conspiracy to rob’.  That serves to show the extent to which the Appellant has shown really no remorse or acknowledgment of his of his wrongdoing and does not indicate to us in any way at all that he is going to be steering clear of crime in the future but, so far as his family is concerned, his wife has quite plainly not been able to influence him away from criminal activity and we have no confidence whatsoever that she will do so in the future. 
31.  The Appellant has committed a very serious offence and he has not shown, as we see it, that one of the exceptions under Section 33 does apply.  Most particularly, he has not shown that there will be a disproportionate interference with his right to respect for family life.  We consider that as couple they can maintain contact with one another, even if the Appellant is in Sri Lanka and his wife chooses to remain in the United Kingdom but, for the reasons we have said, we do consider that she could accompany her husband if she chose to do so.
32.  Quite patently, this Appellant entered into this relationship with his wife and underwent a religious ceremony and then married her knowing very well that he had no permission to stay in this country and in our judgment the right and proper course in this case is for the Appellant to be deported to Sri Lanka ….”
The error of law decision
7.	In the course of the UT’s error of law decision, reference was made to certain findings of the FTT in respect of family life:
“6.  In paragraphs 12, 15 and 16 of the determination the First-tier Tribunal found that the appellant had met his wife in 2003, and had lived with her since 2004.  In 2006 they underwent a religious ceremony of marriage and in 2009, having obtained a Certificate of Approval, had a legally binding civil ceremony.  The appellant’s brother is a citizen of the United Kingdom, but he has no contact with him, and his mother and sister are now in Switzerland.  Before he was imprisoned in connection with the offence of conspiracy to rob he had lived with his wife and parents in law.  No issue was taken before us with these findings.”
Paragraphs 12, 15 and 16 of the FTT’s determination, to which the UT referred, in fact formed part of the FTT’s summary of the appellant’s evidence, rather than constituting findings.  But it is apparent from paragraph 29 of the FTT’s decision, quoted above, that the FTT accepted the appellant’s evidence concerning his relationship with his wife, notwithstanding its wholesale rejection of his credibility in relation to the claimed risk of persecution on return to Sri Lanka. 
8.	The reasons why the UT concluded that the FTT’s decision should be set aside were as follows:
“12.  We have come to [the] view that the determination of the First-tier Tribunal must be set aside.  The questions before the First-tier Tribunal relating to rights of the appellant and his wife under article 8 were considered by the First-tier Tribunal, but the determination does not give adequate reasons for the decisions made.  The First-tier Tribunal decided that if the appellant went back to Sri Lanka alone then there would be interference with his rights under article 8.  They did not go on to explain fully their view of the proportionality of such interference.  The public interest in deportation must be evaluated fully always bearing in mind the terms of s.32.  The remarks of the sentencing judge must be considered as a whole.  We agree that undue weight appears to have been placed on the part in which it was said that this was a serious conspiracy to rob.  There is no explanation given of the First-tier Tribunal’s view of the offence in the context of the charges which were not proved, of the length of the sentence, which is of course relevant to the overall seriousness of the offence, and of the appellant’s conduct in prison.  It may be that the First-tier Tribunal did consider all of these matters fully but they have not given sufficient reasoning.  We agree that the First-tier Tribunal has not made sufficiently clear findings about the appellant’s wife.  As there is a lack of factual material about her circumstances, there is also a lack of explanation in the determination of the First-tier Tribunal’s reasoning that she could go to Sri Lanka, or alternatively that the family could reasonably be split up.”
9.	Having set the FTT’s decision aside, the UT made consequential directions which included the following:
“i.  The evidence upon which the appellant sought to rely in his appeal is already before the Tribunal.  Leave is given for oral evidence to be given by the appellant and his wife limited to updating their situation since the hearing before the First-tier Tribunal.
ii.  The appellant is directed to file with the Tribunal and serve upon the respondent five days prior the resumed hearing, updated witness statements of him and his wife in such detail as will stand as evidence in chief.”
The UT’s dismissal decision
10.	The UT’s dismissal decision records that at the hearing on 16 August 2012 the judge heard oral evidence from the appellant, his wife and his brother.  In addition to the witness statements that had been before the FTT, the appellant and his wife had filed supplementary witness statements concerning their relationship with each other and with members of their families, including the appellant’s brother.  They and the brother were cross-examined at length at the hearing and were also asked questions by the judge.  
11.	Following the completion of oral evidence, the hearing was adjourned to await submission of a Probation Service report on the appellant (the OASys report).  The parties’ legal representatives had expressed a preference to leave closing submissions until after they had seen the report.
12.	What happened at the resumed hearing is explained as follows in the UT’s dismissal decision:
“47.  The hearing resumed on 8 November 2012.  Shortly prior to the hearing the Tribunal received further evidence from the appellant’s representatives.  The OASys report was submitted and in a separate bundle were statements of evidence from the appellant, his wife and his brother and various other documents.  I raised the issue of whether these documents, other than the OASys report should be admitted given that oral evidence had been completed and that the introduction of further witness statements might lead to a reopening of oral evidence which had not been planned for nor intended.  Mrs Tanner [the Home Office Presenting Officer] strenuously objected to the documents being admitted as she had not received them, had not therefore had an opportunity to consider them and because the hearing had only been adjourned for the production of the OASys report and for submissions. Ms Iqbal [counsel for the appellant] argued that they should be admitted as they went to the ‘core of the claim’.
48. Having listened to the submissions on the admissibility of the documents I decided to admit only the OASys report, the letter from the GP setting out the appellant’s wife’s various addresses as known to the surgery, the documents pertaining to the presence and status of the appellant’s mother and sisters in Europe and evidence of the appellant’s wife’s prison visits.  I declined to admit the further witness statements as I considered there had been ample opportunity at the last hearing for any oral evidence to be given, and before it, for full statements of evidence to be adduced.  It had not been anticipated that any further oral evidence would be called and no interpreter had been booked.  This was not an opportunity for the appellant and his witnesses to consider what had been said at the last hearing and to offer explanations for any inconsistencies or to amend the evidence in any way. The hearing had been solely arranged for submissions following the production of the OASys report.  The matter then proceeded and I heard submissions from both parties.”
13.	The Home Office Presenting Officer, in her submissions as summarised by the judge, referred to various inconsistencies in the oral and written evidence and submitted that the relationship between the appellant and his wife was “a contrived relationship brought about by a family who knew the appellant and decided this was the way forward to circumvent deportation”.  Counsel for the appellant addressed those submissions and contended that the evidence supported the claim of family life between the appellant and his wife, and that the appellant’s relationship with his in-laws and his brother also had to be considered.  
14.	Judge Kekić addressed the issue of family life very carefully in her findings and gave detailed reasons why in her judgment the findings of the FTT could not stand.  The detailed reasons are not needed, but her general approach appears from the following extracts from her decision:
“59.  I am aware that in finding an error of law, the Upper Tribunal noted that there had been no dispute about the following matters:  that the appellant and his wife had met in 2003 and that they had begun to live together in 2004, that they underwent a Hindu marriage in 2006 and a civil marriage in 2009, that the appellant and his brother had no contact, that the appellant’s mother and sister are in Switzerland and that he had lived with his wife and her parents before his last conviction (paragraph 6).  However given the difficulties in the evidence before me, it will be seen that not all these findings can stand.
…
61.  I have serious difficulties with the evidence and I set out the main areas of concern below in no order of priority.  I found the oral evidence to be contradictory, both internally and with respect to the written evidence, and evasive.  I have considered whether the inconsistencies could be explained by nervousness or memory loss but for the reasons given below reject both explanations.
…
78.  I have found the evidence as a whole to be evasive …, conflicting, internally contradictory as well as inconsistent with documentary evidence and wholly unimpressive.  I do not accept that there is any kind of genuine marital relationship between the appellant and the lady whom he married in 2009.  I do not accept they met by chance and fell in love, I do not accept they have been living together as a couple at all let alone since 2003 or 2004, I do not accept there was ever a Hindu marriage and I find that the civil marriage was entered in solely to help the appellant to remain here.  I do not accept any family life between the appellant and his wife.  There are no children to consider.  Given these findings I do not need to consider whether family life could continue in Sri Lanka.  If I were required to make findings about the appellant’s wife  had I accepted the marriage to be genuine, I would have found she had been here less than 10 years, that she too was from Jaffna and had retained strong links to her culture.  She speaks Tamil with the appellant and her parents.  The photographs I have seen show her in traditional dress.  No evidence of her life here has been submitted apart from a recent job with Tim’s Dairy.  I accept she is close to her parents but she is now an adult and has a husband.  She commenced her relationship in full knowledge that he was here illegally and married him knowing that his appeal had failed and that he had no right to be here.  Given the particular circumstances of this case, the absence of any children and the lack of any strong ties shown by the appellant’s wife to the UK, I would have found removal was proportionate.”
15.	The judge went on to deal with the question of private life, referring among other things to the conflicting evidence given over the relationship  between the appellant and his brother.  She concluded that despite the interference in what appeared to be a limited private life in the United Kingdom, removal would be proportionate.
First issue:  “preserved findings of fact”
16.	The first way in which the case is put on the appellant’s behalf is that the effect of the UT’s error of law decision was to preserve the FTT’s findings of fact concerning the appellant’s marriage, and that Judge Kekić erred in law by reopening those findings and departing from them.  In support of that contention, Ms Fisher relied in particular on observations of Latham LJ in DK (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1246 in relation to the procedures then in place for reconsideration of a decision following the identification of an error of law in the decision:
“25.  Accordingly, as far as the scope of reconsideration is concerned, the tribunal is entitled to approach it, and to give directions accordingly, on the basis that the reconsideration will first determine whether or not there are any identifiable errors of law and will then consider the effect of any such error or errors on the original decision.  That assessment should prima facie take place on the basis of the findings of fact and the conclusions of the original tribunal, save and in so far as they have been infected by the identified error or errors of law.  If they have not been infected by any error or errors of law, the tribunal should only revisit them if there is new evidence or material which should be received in the interests of justice and which could affect those findings and conclusions or if there are other exceptional circumstances which justify reopening them.”
17.	Ms Fisher submitted that the errors of law identified in the UT’s error of law decision did not infect the FTT’s findings of fact concerning the appellant’s marriage, with which indeed no issue had been taken by the parties, and that it was clearly the UT’s intention to preserve those findings.  The consequential directions contemplated that the evidence already given would stand and that additional oral evidence would be limited to updating the situation of the appellant and his wife since the hearing before the FTT.  Judge Kekić should not therefore have allowed the case to proceed in a way that put in issue the facts found by the FTT and resulted in the making of contrary findings concerning the appellant’s marital relationship. 
18.	Ms Broadfoot, for the Secretary of State, drew attention to the important changes to the statutory framework since DK (Serbia):  a case now proceeds by way of appeal to the Upper Tribunal under sections 11 and 12 of the Tribunals, Courts and Enforcement Act 2007, rather than by way of reconsideration, and the appellate procedures are subject to the relevant rules and practice directions of the Upper Tribunal.  Nonetheless, I did not understand her to dispute the continued validity of the broad thrust of what was said in DK (Serbia).  She submitted, however, that it is a rule of practice, not of jurisdiction; that it is not a “brightline” rule (see DM (Zambia) v Secretary of State for the Home Department [2009] EWCA Civ 474 at para 22); that it is of limited value in a case where credibility has to be considered anew at a reconsideration (see NG (Tunisia) v Secretary of State for the Home Department [2010] EWCA Civ 1584 at para 16); and, most importantly for present purposes, that even if the FTT’s findings of fact would otherwise be preserved in line with DK (Serbia), they may be reopened either by agreement of the parties or by acquiescence.  
19.	NJ (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 77 makes good that last submission in a case where there is express agreement.  Ms Broadfoot submitted that the same must be true where there is acquiescence (or, as I take it, where there is implied agreement):  a party cannot simply sit back and allow the hearing to proceed on the basis that the factual findings are reopened and then, if dissatisfied with the outcome, appeal on the ground of procedural error.  She referred us to the statement in Macdonald’s Immigration Law and Practice, 8th ed, at para 20.55, that “[w]ith the agreement (or acquiescence) of the parties the Tribunal could revisit factual findings that were otherwise outside the proper scope of the reconsideration”, though the only authority cited in the footnote to the passage is NJ (Iran). 
20.	For the reasons set out below, I am satisfied that the appellant has no proper ground of complaint about the procedure that was followed in the present case.  
21.	First, the issues that Judge Kekić had to consider as a result of the UT’s error of law decision included an assessment of the strength and quality of family life between the appellant and his wife, and for that purpose it was necessary for the judge to consider and make findings about the relationship between them over time.  In other words, I do not accept that the FTT’s findings of fact on those matters were impliedly preserved by the UT’s error of law decision.  Para 12 of that decision (quoted at para 8 above), referred to the absence of adequate reasons for the decisions made by the FTT under article 8 and said, among other things, that the FTT did not explain fully its view of the proportionality of interference with the appellant’s article 8 rights if he went back to Sri Lanka alone, that the FTT had not made sufficiently clear findings about the appellant’s wife, and that there was a lack of factual material about her circumstances.  Although the consequential directions provided only for updating evidence, the effect of the decision itself was to open the way to a fresh assessment of the factual issues concerning the relationship between the appellant and his wife.  In practice, an assessment of the updating evidence could not sensibly be separated from assessment of the evidence that was being updated.
22.	Secondly, the appellant himself approached the hearing before Judge Kekić on the basis of seeking to reopen one of the FTT’s findings of fact which, on the case now advanced on his behalf, was a preserved finding.  In his evidence to the FTT the appellant had said that his brother was in the country but they were not on speaking terms and this had been the situation for the last three years (para 15 of the FTT’s decision).  At para 6 of the UT’s error of law decision this was treated as a finding by the FTT that the appellant had no contact with his brother, and it was said to be one of the findings with which no issue had been taken.  Yet the supplementary witness statements of the appellant and his wife for the hearing before Judge Kekić asserted the existence of regular contact between the appellant and his brother, and a close relationship between them.  
23.	Thirdly, early in the cross-examination at the first hearing before Judge Kekić, it must have been obvious that the questioning was not limited to matters of updating but was covering the whole ground of the appellant’s relationship with his wife (as well as with other family members).  Yet the appellant’s counsel did not raise any objection to that line of questioning or seek in any way to argue that the permitted scope of the evidence was the narrow one now contended for.  Moreover, there was a lengthy adjournment before the resumed hearing at which closing submissions were made, but even after that time for reflection the appellant’s counsel made no suggestion that matters had gone procedurally awry at the first hearing but, on the contrary, made submissions on the evidence concerning the appellant’s relationship with his wife from its inception.  It seems to me that this was a clear case of at least acquiescence in the procedure adopted; and I see no reason in principle why acquiescence should not have the same consequences as agreement between the parties in relation to an issue of this kind.  Moreover, the position could reasonably be considered to be one of implied agreement, since in practice both parties appear to have proceeded on the understanding that the FTT’s findings of fact concerning the appellant’s relationship with his wife and brother were open to challenge.
Second issue:  procedural fairness
24.	The second broad way in which the appellant’s case is put is that what occurred at the hearings before Judge Kekić amounted to procedural unfairness.  The Secretary of State had made no previous challenge to the appellant’s account of his marital relationship, either in the original decision or before the FTT or at the error of law hearing before the UT.  If the previous concession as to the facts was to be retracted, the appellant should have been put on notice of this.  To cross-examine the appellant and his witnesses on the subject without such notice was unfair.  The cross-examination was also in breach of the tribunal rules and practice directions requiring a party to give notice if they wish to adduce further evidence.  In particular, rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides that if a party wishes the UT to consider evidence that was not before the FTT, that party must send or deliver a notice to the UT and any other party (i) indicating the nature of the evidence and (ii) explaining why it was not submitted to the FTT; and paragraphs 4.1 to 4.3 of the Practice Direction issued by the Senior President of Tribunals on 10 February 2010 contain related provisions, including a requirement that the notice must state whether the evidence is in oral or documentary form.  
25.	In further support of the argument as to procedural unfairness, Ms Fisher pointed to a passage in para 69 of the UT’s dismissal decision in which Judge Kekić referred to types of documentary evidence that the appellant could have adduced to show that he and his wife had cohabited.  The judge said that “nothing is forthcoming” and that the evidence adduced did not establish a genuine marital relationship.  Ms Fisher submitted that this highlighted the unfairness:  in the absence of notice, the appellant did not know that he had to put in evidence on this issue.  
26.	A further point made in the grounds of appeal, though not specifically developed in Ms Fisher’s oral submissions, relates to the appellant’s unsuccessful attempt to adduce further witness statements at the resumed hearing (see the passages from the UT’s dismissal decision quoted at para 12 above). It is said that those statements partly addressed a number of the “inconsistencies” found by the judge.  It is submitted that since the appellant and his witnesses had been taken by surprise by the cross-examination at the first hearing, the judge ought in fairness to have allowed the appellant to address such issues by way of the further evidence.  
27.	I am not persuaded by the appellant’s case on procedural unfairness, whether the points are taken individually or cumulatively.  Essentially for the reasons given in relation to the first issue, I do not think that the appellant can have been taken by surprise by the scope of cross-examination at the first hearing before Judge Kekić; and if he was taken by surprise, the fact is that he was represented by counsel, there was no objection by his counsel to the way matters proceeded, and it is too late to take such an objection for the first time on appeal.  (Para 14 of the UT’s dismissal decision records that the appellant explained a particular inconsistency on the basis that he suffered memory loss.  Asked why he had not informed his legal representatives of his poor memory, he replied that he “did not know that he would be questioned like this”.  Contrary to a submission made by Ms Fisher, I do not think that that answer shows that the appellant did not expect to be questioned about the history of his marital relationship.)
28.	Nor do I accept that the provisions of the rules and practice directions requiring parties to give notice if they wish to adduce further evidence apply to cross-examination of another party’s witnesses, so as to require notice to be given of the matters to be explored in cross-examination.  The construction that Ms Fisher sought to place on the provisions runs counter to their natural meaning and cannot have been intended.  The cross-examination in this case was itself perfectly fair, focusing as it did on points arising out of the witness statements and oral evidence of the appellant and his witnesses.  
29.	Since there was no unfairness in the first hearing, the further evidence sought to be adduced at the resumed hearing could not be justified by the need to remedy a previous unfairness.  The reasons given by the judge for refusing to allow it to be adduced were sound, and the decision was well within the reasonable ambit of the judge’s discretion.
The Secretary of State’s argument that the appellant’s case is academic
30.	I should mention for completeness that Ms Broadfoot argued that the case advanced before us by the appellant was academic, because Judge Kekić made a sustainable alternative finding at para 78 of her decision that even if the marriage was genuine, deportation would be proportionate.  I would have wished to see fuller reasoning in support of the alternative finding in order to counter the suggestion that the finding was tainted by the considerations that led the judge to her primary conclusion that there was no family life between the appellant and the wife at all.  In the circumstances, however, I do not need to reach any decision on this aspect of Ms Broadfoot’s submissions, since I have reached the conclusion that the case advanced before us by the appellant fails in any event.
Conclusion
31.	For the reasons given, I would dismiss the appeal.
Lord Justice Pitchford : 
32.	I agree.
Lord Justice McFarlane : 
33.	I also agree.