The Secretary of State for the Home Department v Devani

This appeal has a complicated and unsatisfactory procedural history, which it is necessary to set out in some detail before we can get to the issues.

The Respondent, to whom I will refer as Mr Devani, is a Kenyan businessman. He has been in this country since some time in 2009 or 2010, though he has not at any material time had leave to remain.

In 2011 Kenya made an extradition request in relation to serious allegations of fraud against Mr Devani; and a further request, also in relation to fraud, was made in 2013. He challenged both requests, and there were prolonged proceedings in the Magistrates Court culminating in a decision dated 3 September 2014 dismissing his challenge. He appealed to the High Court. By a decision dated 11 December 2015 ([2015] EWHC 3535 (Admin)) a Divisional Court comprising Leggatt J and Sir Richard Aikens dismissed his appeal.

One of Mr Devani’s grounds of challenge to his extradition was that prison conditions in Kenya were such that his return to face detention there, whether on remand or following any eventual sentence, would contravene article 3 of the European Convention on Human Rights. The Divisional Court found that prison conditions in Kenya generally were indeed not “article 3 compliant”. But it upheld the District Judge’s rejection of the challenge because the Commissioner of Prisons for Kenya and its Director of Public Prosecutions had written formal letters of assurance to the Home Office stating that Mr Devani would be detained in a particular prison in Nairobi, Kamiti prison, where the accommodation and facilities were article 3 compliant and where he would have a cell to himself: see paras. 165-167 of the judgment of Sir Richard Aikens.

On 16 February 2016, i.e. about two months after the Divisional Court’s decision in the extradition proceedings, Mr Devani applied for asylum. The Secretary of State refused the application.

Mr Devani appealed to the First-tier Tribunal. His appeal was heard before First-tier Tribunal Judge Sullivan on 31 October 2018. He was represented by Mr Raphael Jesurum of counsel. The Secretary of State was represented by a Presenting Officer, Mr Wain.

At the hearing Mr Devani relied not only on the Refugee Convention but on a contention that, notwithstanding the assurances relied on by the District Judge in the extradition proceedings, the prison conditions in which he would be detained in Kenya would not be article 3 compliant. He claimed that equivalent assurances given in the case of a Mr Gilbert Deya, and on the basis of which he had been extradited to Kenya, had been disregarded. Mr Deya, who held himself out as an evangelist, was extradited to Kenya to face charges of child trafficking in connection with a “miracle babies” scam.

The evidence about Mr Deya’s treatment on which Mr Devani relied was lodged only two days before the hearing, but it seems that Mr Wain did not object to its admission.

The FTT’s decision was promulgated on 22 November 2018. The Judge dismissed the asylum appeal, but we are only concerned with her decision on the article 3 claim. As to that, having rejected Mr Swaka’s evidence, she said, at paras. 48-49 of her reasons:

“48.

The news article at page 1 of the Appellant’s bundle (only the first of two pages has been included), dated 11 August 2017, confirms that Mr Deya was being held at Kamiti prison. It sets out his complaint that, in breach of Kenyan assurances, he was being held in a dirty room with 11 other people. It refers to him appearing before a Chief Magistrate. The report is dated within one month of the High Court decision in Deya. Its contents suggest that it was written within 6 days of Mr Deya’s return to Kenya. Based on this report and in the absence of anything on its face undermining its reliability and of any evidence from the Respondent challenging the contents of the report I find that on return to Kenya Mr Deya was held in shared prison accommodation for 6 days, in breach of assurances which had been given by the Kenyan government.

49.

The High Court in Devani was satisfied in 2015 on the basis of Kenyan assurances that the Appellant would not be held in conditions breaching Article 3 of the 1950 Convention. In light of the subsequent evidence relating to Mr Deya I find that there is a real risk that on return to Kenya the Appellant would not be held in keeping with the Kenyan assurances given to the High Court but would be held in conditions breaching Article 3 of the 1950 Convention.”

Those findings necessarily meant that Mr Devani’s appeal, so far as it was based on article 3, should have succeeded. However, the Judge’s formal “Notice of Decision” reads:

“51.

The Appeal is dismissed (Article 3 only)

52.

The Appeal on asylum grounds is dismissed.

53.

The Appeal on Article 2, 6 and 8 grounds was not pursued by the Appellant.”

It was common ground before us (though not below), and is in my view obvious, that the word “dismissed” in para. 51 was simply a slip by the Judge and that she meant to write “allowed”. This unfortunate slip is the root cause of the procedural complications that have ensued.

Mr Devani believed, on the authority of a decision of the Upper Tribunal called Katsonga to which I will have to return, that it was not open to him to apply to have the

Although the Secretary of State was content with the ostensible decision of the FTTJ, she (Footnote: ¹) was obviously not content with the decision which Mr Devani was contending that she meant to make. If his appeal succeeded, the result would be that that intended decision would be substituted unless she challenged it. The Secretary of State could not appeal, because she was the ostensible winner; but she could provide a “response” under rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 stating that she wished to uphold the decision on the basis that the evidence relied on by Mr Devani did not entitle the FTT to go behind the conclusion of the Divisional Court on the reliability of the assurances. (Footnote: ²) She did not file any such response.

Permission to appeal was granted by the FTT on 2 January 2019, and the appeal was heard before Deputy Upper Tribunal Judge Latter on 7 February. Mr Devani was represented by Ms Samantha Broadfoot QC, leading Mr Jesurum. The Secretary of State was represented by a Presenting Officer, Mr Tufan. Mr Devani lodged a short skeleton argument developing the single ground of appeal. There was no skeleton argument from the Secretary of State.

We have been supplied with a transcript of the hearing, although unfortunately there are substantial passages which the transcriber was unable to hear. It is necessary that I should summarise the parties’ submissions.

Ms Broadfoot, who opened the appeal, began by making short submissions to the effect that there had been an obvious slip and that the appeal should be allowed by the UT substituting the order which the FTT had evidently intended to make. DUTJ Latter intervened to ask Mr Tufan if he agreed that FTTJ Sullivan had intended to allow the appeal. He said that he did not. Ms Broadfoot then continued with her submissions. Notwithstanding the absence (at that point) of any challenge to paras. 48-49 of the FTT’s decision, she made the point that it was not open to Mr Tufan to challenge the findings in them since the Secretary of State had neither appealed nor provided a rule 24 response. However, she went on to explain the background to those paragraphs and to commend the substance of the Judge’s reasoning in them.

Mr Tufan in his submissions in response embarked directly on a challenge to the reasoning and findings in paras. 48-49 of the FTT’s reasons. His essential submission

In her reply submissions Ms Broadfoot repeated more fully her objection to the Secretary of State seeking to challenge the reasoning in paras. 48-49 in the absence of any cross-appeal or rule 24 response. However, she did not suggest that she was unable to deal with the challenge; and in fact she proceeded to address it substantively. She submitted that the only question was whether the Judge’s finding was perverse and that it plainly was not: there was nothing to suggest that the news report was unreliable. She also said that no challenge to its reliability had been advanced in the FTT.

DUTJ Latter reserved his decision. By a decision and reasons promulgated on 27 February 2019 he allowed the appeal and substituted a decision that Mr Devani’s original appeal be allowed, on article 3 grounds only, on the basis that that was what FTTJ Sullivan plainly intended. As regards Mr Tufan’s challenge to her substantive reasoning, he said, at paras. 17-18:

“17.

I was at one stage concerned by whether the respondent had been put at a disadvantage by the fact that an appeal has been necessary as this error could not be put right under the ‘slip rule’ within rule 31 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, when an amended decision would have been issued giving rise to a right of appeal. At one point in his submissions Mr Tufan raised the issue of whether the respondent had been able to appeal because he was not the loser. That was the position under the Nationality, Immigration and Asylum Act 2002 governing the right to appeal to the Immigration Appeal Tribunal (see AN (only loser can appeal) Afghanistan [2005] UKIAT 97). However, those provisions were superseded by the coming into force of s. 11(2) of the Tribunals, Courts and Enforcement Act 2007 making it clear that any party to a decision has the right of appeal to the Upper Tribunal.

18.

In the present case the respondent has not sought to challenge the decision by seeking permission to appeal, to maintain it on other grounds by filing a rule 24 notice setting out any grounds on which he seeks to rely or by filing a skeleton argument to challenge the substance of the judge’s decision. I have also been referred to the recent reported decision in PAA (FtT: oral decision – written decision) Iraq [2019] UKUT 13, which, whilst dealing with a different issue, the effect of an oral decision given by the First-tier Tribunal inconsistent with subsequent written reasons, nonetheless confirms the importance of challenging a decision in accordance with the relevant procedure rules. No such challenge has been made.”

In my view it is plain from that passage that DUTJ Latter decided that he should not consider the substantive challenge, and he did not do so. There was a suggestion before us that an earlier paragraph in his judgment constituted an implicit rejection of Mr Tufan’s argument, but I am quite clear that that is not the case.

The Secretary of State appeals against that decision. She has been represented before us by Mr Nicholas Chapman of counsel. Mr Devani has again been represented by Ms Broadfoot and Mr Jesurum. I should note that in the FTT and the UT an anonymity direction was made, no doubt on the basis that Mr Devani had made an asylum claim. But there is in the particular circumstances of this case no conceivable prejudice to Mr Devani in the judgment not being anonymised, since his identity is known to the Kenyan authorities, and it would be wholly artificial to have to seek to disguise the fact that he is the same person who is the subject of the decisions in the extradition proceedings.

It is, as I have said, (now) common ground that the word “dismissed” in para. 51 of the FTT’s decision was simply a slip and that the UT was right so to hold. The issues on this appeal concern the challenge which the Secretary of State wishes to make to FTTJ Sullivan’s intended decision. As to that, the broad issues are:

Although it is now, strictly speaking, water under the bridge, I wish to say by way of preliminary that I do not believe that it was necessary for Mr Devani to mount an appeal to the UT in order to have para. 51 of the FTT’s decision corrected. The point is of some general importance.

Mr Devani’s belief that the slip rule was unavailable and that he had to proceed by the appeal route was based on the decision of the UT (comprising the Vice President, Mr Ockelton, and UTJ Martin) in Katsonga [2016] UKUT 228 (IAC). In that case, like this, a judge in the FTT promulgated a decision which allowed the appellant’s appeal on human rights grounds when it was clear from her reasoning that she meant to dismiss it. The Secretary of State applied to her to correct the decision, and she did so, apparently under the predecessor to rule 31. The UT allowed the appellant’s appeal.

In my view Katsonga was wrongly decided, and the passage which I have quoted from the UT’s reasons and, still more, the terms of the headnote are liable to mislead. The essential distinction to bear in mind in considering the application of the slip rule, in any of its legislative formulations, is between the case where the order in question does not express what the Court actually intended at the moment of promulgation and the

As it happens, we were referred to Katsonga in AS (Afghanistan), and I approved the UT’s observations in the last two sentences of para. 8: see para. 45 (p. 3078). But I added a footnote in the following terms:

“My citation of Katsonga should not be taken as implying approval of the proposition in the judicially-drafted headnote that ‘the “Slip Rule”… cannot be used to reverse the effect of a decision’, which if taken out of context may be misleading. If, say, a ‘not’ were accidentally omitted from a declaration or injunction its correction might well reverse what would otherwise be the effect of the decision, but it is hard to see why it should for that reason be illegitimate: indeed it might be thought to be the paradigm of the kind of case for which the slip rule was required.” That remains my view.

Since the foregoing passage was drafted the Upper Tribunal (Immigration and Asylum Chamber) (comprising the President, Lane J, and UTJ Blundell) has promulgated a decision likewise disapproving what was said in Katsonga: see MH (Iran) v Secretary of State for the Home Department [2020] UKAITUR PA056462019, at paras. 57-80. I am pleased that our conclusions on this issue are to the same effect.

I turn to the substantive issue under this head, namely whether the Judge erred in law in declining to consider the Secretary of State’s challenge to paras. 48-49 of the FTT’s Reasons. His reason for taking that course was that she had failed to raise that challenge in accordance with “the relevant procedure rules”: specifically, he referred to her failure (a) to appeal or (b) to provide a rule 24 response or (c) to serve a skeleton argument. Mr Chapman submitted that that was a misdirection: there was no obligation on the Secretary of State to take any of those steps.

I start with the alleged failure by the Secretary of State herself to appeal. I agree with Mr Chapman that there was no such failure. In my view Mr Tufan was quite right in his submission to DUTJ Latter (see para. 16 above) that that course was not open to her because she was (ostensibly) the winning party. As appears from para. 17 of his decision, the Judge acknowledged that that had once been the law, but he said that the position was changed by section 11 (2) of the Tribunals, Courts and Enforcement Act 2007, which reads “Any party has a right of appeal, subject to subsection (8) (Footnote: ³).”

I turn to the Secretary of State’s alleged failure to provide a response under rule 24. Rule 24 (as amended) is headed “Response to the notice of appeal” and reads, so far as material:

“(1)

…

(1A) Subject to any direction given by the Upper Tribunal, a respondent may provide a response to a notice of appeal.

DUTJ Latter evidently took the view that if the Secretary of State wished to uphold the FTT’s (ostensible) decision to dismiss the appeal on the basis that her conclusion in paras. 48-49 was wrong, that was a ground “on which [she] was unsuccessful in the proceedings which are the subject of the appeal” and that she was obliged to identify it in a notice served under rule 24, by reference in particular to paragraph (3) (e).

Mr Chapman argued that rule 24 imposed no such obligation. His primary argument was that the effect of rule 24 was permissive only: paragraph (1A) says that a respondent “may” provide a response, not that they must. Accordingly the requirement in paragraph (3) (e) – and in particular the additional grounds provision – only applies in cases where the respondent chooses to provide a response in the first place. He noted the contrast with rule 52.13 (2) of the Civil Procedure Rules, which provides that a respondent’s notice “must” be filed where the respondent wishes to uphold the decision of the court below on different or additional grounds.

On a literal construction of the rule that would appear to be right, but the result makes no sense. The point of the additional grounds provision is, evidently, that the appellant and the UT should know in advance of the hearing what matters will be in issue, but that can only be achieved if there is an obligation to provide a response in such a case. I also note the requirement of paragraph (4) that a respondent who provides a response out of time must seek an extension: that would seem to be empty if there were no circumstances in which a response was mandatory. In my view on a purposive construction the effect of rule 24 is that in a case where a respondent wishes to rely on a ground on which they were unsuccessful below they are under an obligation to

Mr Chapman argued that even if a purposive construction along those lines were to be adopted the obligation should only arise where the respondent wishes to rely on “legal grounds” on which they were unsuccessful below. He said that that was apparent from the way in which the case where the “additional grounds” situation is separately provided for in paragraph (3) (e), and also by the parenthesis “(in the case of an appeal against the decision of another tribunal)” (Footnote: ⁶). The challenge to paras. 48-49 of the FTT’s decision was not “on legal grounds”. In so far as I understand the point, I cannot accept it. Any appeal to the UT must be on legal grounds in the sense that it asserts an error of law on the part of the FTT; and the challenge advanced by Mr Tufan to the conclusion in paras. 48-49 was essentially that it was perverse. That is a sufficient answer, but I should say that I do not in any event understand the significance attached to the separate reference to the additional grounds point or to the parenthesis.

Thus far, therefore, I do not accept Mr Chapman’s submission. In my view rule 24 applied squarely to the situation with which we are concerned. However Mr Chapman argued that even if that were so the time for providing a response specified by paragraph (2) (a) had not yet expired. The date on which the Secretary of State was sent notice that permission to appeal had been granted was on 9 January 2019. The time limit accordingly expired on 9 February, but the appeal was heard on 7 February.

That point seems to be good as far as it goes, but I do not think it gets the Secretary of State out of the wood. Even if, because the appeal came on so soon after the grant of permission, no obligation under rule 24 itself arose, it remained necessary, in the interests of fairness and in accordance with the over-riding objective (see rule 2), for the Secretary of State to put Mr Devani and the Tribunal on notice in advance of the hearing that if Mr Devani succeeded in showing that FTTJ Sullivan intended to allow the appeal she would argue that that intended decision was wrong. That notice would most appropriately have been given by providing a rule 24 response sooner than the deadline under paragraph (2) (a), but it would have been acceptable for the point to be made in correspondence or, as the Judge said, in a skeleton argument. That was not done.

I therefore think that the Judge was right to find that the Secretary of State had failed to give proper notice of the challenge raised by Mr Tufan to the Judge’s conclusions in paras. 48-49, albeit not for the full reasons that he gave.

It does not, however, necessarily follow that he was entitled to disregard that challenge. Whether to permit it to be pursued notwithstanding that failure was a matter for his discretion. Despite the reluctance of this Court to interfere with decisions of this character, and not without some hesitation, I have come to the conclusion that in the

In summary, therefore, I think that the UT was wrong not to consider the Secretary of State’s challenge to the FTTJ’s findings at paras. 48-49 of her decision.

I would add two codas on the procedural aspect of this appeal.

First, the discussion of rule 24 at paras. 30-34 above, and also in Nugee J’s decision in Acornwood, suggests that it may be worth the Tribunal Procedure Committee having another look at its drafting, and in particular at whether it should state more explicitly in what circumstances the provision of a response is mandatory. It may or may not also be desirable to cater for the situation where, as here, a hearing is fixed before the expiry of the time limited for filing a response.

Secondly, although we did not explore with Mr Chapman the reason why no notice of the Secretary of State’s response was given to the Appellant in advance of the hearing, whether under rule 24 or otherwise, the likelihood must be that no-one really focused on what the case required until Mr Tufan actually picked up the case shortly before the hearing: if they had, the need for such notice to be given would have been obvious. I do not know what arrangements exist for considering in good time before a UT hearing what steps need to be taken by way of preparation, but the Home Office might wish to consider whether this was a one-off error (it is fair to say that the appeal came on pretty quickly) or whether it reveals some more systemic deficiency.

I agree with the judgment of Underhill LJ in respect of issue (1).

The issue is whether, given that the UT was wrong not to consider the Secretary of

Pursuant to section 14(2)(a) of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”) the court may set aside the decision of the UT having determined that an error was made on a point of law. In so setting aside, the court can remit the case to the UT (section 14(2)(b)(i) of the 2007 Act) or re-make the decision (section 14(2)(b)(ii) of the 2007 Act). It follows that there is a discretion as to whether the court remits or re-makes the decision. In this case:

In re-making the decision the court may make any decision which the UT could make if the UT were re-making the decision or (as the case may be) which the other tribunal or person could make if that other tribunal or person were re-making the decision (section 14(4)(a) of the 2007 Act) and make such findings of fact as it considers appropriate (section 14(4)(b) of the 2007 Act).

The issue here is whether the FTT’s findings in paras. 48 to 49 were open to the Judge in law.

The online news article upon which the FTT Judge relied (para. 8 above) relates to the case of Mr Deya and the conditions in which he was allegedly held at Kamiti Prison.

At para. 41 of her reasons, the Judge referred to the assessment by the Divisional Court of the article 3 issues and Kenyan prison conditions in respect of Mr Devani. The relevant part of the Divisional Court judgment, which included the assurances given, is referred to at para. 4 above. The appellant has not appealed the Divisional Court decision, which was affirmed in R (on the application of Deya) v Secretary of State for the Home Department- [2017] EWHC 172.

In considering prison conditions in Kenya the FTT accepted that they are harsh, can be life-threatening and may breach article 3 (para. 43). The Judge was satisfied that Lord Ramsbottom had inspected the prison where the appellant would be held were he “to be held in compliance with the assurances given by the Kenyan authorities” (para. 44).

The Judge considered the assurances given in the case of Mr Deya and stated that she was satisfied that “specific assurances were given in the Deya case that on remand Mr

Having considered the online news article the Judge found that “In light of the subsequent evidence relating to Mr Deya I find that there is a real risk that on return to Kenya the Appellant would not be held in keeping with the Kenyan assurances given to the High Court but would be held in conditions breaching Article 3 of the 1950 Convention” (para. 9 above).

The issue for this court to determine is whether this unverified news report is capable of constituting a sound evidential basis sufficient to undermine the assurances, accepted by the Divisional Court, given by or on behalf of the Republic of Kenya in respect of Mr Devani.