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Criticism of the Secretary of State's litigation practice in deportation cases

18 November 2015 Immigration

The President of the Upper Tribunal, Mr Justice McCloskey has, in the case of Greenwood (No. 2) (para 398 considered) [2015] UKUT 00629 (IAC), deprecated the Secretary of State's practice in deportation appeals. Its worth quoting from the judgement itself, which speaks for itself: "Deportation appeals generally

18.     The Upper Tribunal has the impression that the Secretary of State, as a matter of routine, applies for permission to appeal in every deportation appeal in which the appellant succeeds before the FtT. Furthermore, the grounds of appeal are frequently formulated in bland and formulaic terms. Thirdly, the grounds of appeal rarely, if ever, engage with the governing principles which we have rehearsed above. We would suggest that these observations be carefully considered by those who compile applications for permission to appeal and the Judges who decide them.

19.     If there is indeed a practice of this kind it must be disapproved. To slavishly apply for permission to appeal to the Upper Tribunal in every deportation appeal resolved in favour of the appellant, if this be the practice, is not a proper or legitimate invocation of this Tribunal's jurisdiction. Decisions on whether to apply for permission to appeal should be the product of conscientious and considered evaluation of the first instance judicial decision in every case. This, we consider, is what was contemplated by the legislature in making provision for this mechanism. Inundation of the Upper Tribunal with permission to appeal applications in every case belonging to a given category cannot be considered harmonious with the Parliamentary intention. Moreover, it is unfair to other tribunal users and undermines the important values of legal certainty and finality, which are two of the cornerstones of our legal system."


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