Where a decision of the First-tier or Upper Tribunal was not unanimous and the votes of the tribunal members were equally divided, the power conferred on the presiding member of the tribunal to provide the casting vote was not to be exercised irrespective of the nature and extent of the disagreement between the tribunal members. Disagreement as to the applicable law might in general justify the exercise of the casting vote, but not disagreement on fundamental primary factual issues.

The Court of Appeal (Civil Division) so held when giving reasons for dismissing an appeal by the offender, PF, a Nigerian national, against the determination of the Upper Tribunal (Immigration and Asylum Chamber) made on 7 January 2014, allowing the Secretary of State’s appeal against the decision of the First-tier Tribunal which had allowed the offender’s appeal against the Secretary of State’s decision to deport him following his convictions for drug and other offences. The Upper Tribunal had remitted the appeal for rehearing before a differently constituted panel of the First-tier Tribunal.

The offender had been granted indefinite leave to remain. Between 1996 and 2002 he was convicted of a number of offences, including possession of a Class A controlled drug with intent to supply, using threatening, abusive or insulting words or behaviour with intent to cause fear of, or to provoke, violence and possession of ammunition without a certificate, for which he was sentenced to terms of detention and imprisonment. In May 2010 he accepted that he had taken a managerial role in drug dealing, and was convicted of two counts of conspiracy to supply a Class A controlled drug, for which he was sentenced to five years and eight months’ imprisonment.

At the hearing of the offender’s appeal against deportation, the panel of the First-tier Tribunal consisted of a judge and a lay member, who expressed their disagreement with each other on the issue of whether deportation would breach the offender’s rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and those of his family. The lay member found that the assertions that the offender had changed his lifestyle and character to the extent that he no longer posed a risk of re-offending were not credible, and considered that he did not have a significant private and family life to the extent that it could be regarded as exceptional or override the presumption in favour of deportation. The judge accepted that the offender had been or was in the process of being rehabilitated, posed a low risk of re-offending, had shown sufficient signs of rehabilitation to demonstrate that his removal was not necessary to maintain deterrent sentencing or show public revulsion for the crimes he had committed, and that the judge’s decision as presiding immigration judge prevailed so as to allow the appeal. Following the decision of the First-tier Tribunal, the offender was mistakenly informed by the Home Office that he would be granted limited leave to remain.

Article 8 of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order (SI 2008/2835) provided that if the decision of the tribunal was not unanimous, the decision of the majority was the decision of the tribunal, and the presiding member had a casting vote if the votes were equally divided. Paragraph 10.2 of the Immigration and Asylum Chamber of the First-tier Tribunal and the Upper Tribunal Practice Statements (25 September 2012) issued by the Senior President of Tribunals provided that in view of article 8 of the 2008 Order, where the jurisdiction of the tribunal was exercised by more than one member, the resulting determination or other decision would not express any dissenting view or indicate that it was of a majority.

The Upper Tribunal held that the disclosure in the determination of the First-tier Tribunal of the differences between the lay member and the presiding member was a material error of law, that in the circumstances the First-tier Tribunal should have adjourned the appeal to be heard by a differently constituted panel and that its failure to do so was erroneous in law. The Upper Tribunal also held that there had been clear and unequivocal representations to the offender by the Secretary of State that he would be granted leave to remain, which were inconsistent with the Secretary of State pursuing her appeal, but that nonetheless the Secretary of State was not precluded from acting inconsistently with those representations.

On 12 March 2015 the Court of Appeal dismissed the offender’s appeal with reasons to follow.

SIR STANLEY BURNTON, giving reasons for dismissing the appeal, said that the Upper Tribunal should not have raised or considered the offender’s case on legitimate expectation. It was extraneous to the statutory jurisdiction of the Upper Tribunal which was firstly, to decide whether the making of the decision of the First-tier Tribunal involved the making of an error of law (as per section 12(1) of the Tribunals, Courts and Enforcement Act 2007), and if it did so find, it could set aside the decision and either remit the case to the First-tier Tribunal or remake the decision. The representations of the Secretary of State on which the offender relied had no impact whatsoever on the decision of the First-tier Tribunal. The proper course for an appellant who sought to rely on a legitimate expectation against the Secretary of State was to commence judicial review proceedings. In any event, the Upper Tribunal were right to reject the offender’s case on legitimate expectation, on the grounds that the representations were made entirely in error, the expectation engendered by the representations would not have lasted more than nine days, there was no evidence of detrimental reliance on the representations and there was a strong public interest in the issue of the offender’s deportation being decided on its merits.

The submissions on behalf of the offender failed to distinguish between the power conferred on the presiding member of the tribunal by article 8 of the 2008 Order and the discretion whether or not to exercise that power. The presiding member had a casting vote but it did not follow that he might properly exercise it irrespective of the nature and extent of the disagreement between the members of the panel. The differences between the presiding member and the lay member could scarcely have been greater and were not differences as to the applicable law, which in general might justify the exercise of the casting vote by the judge, or even as to the evaluation of the article 8 claim. They included such fundamental primary factual issues as the nature and extent of the relationship between the offender and his family, and whether or not he was genuinely being rehabilitated. If the lay member’s views on either of those issues were well founded, there was no question of his appeal succeeding. In those circumstances, the power to cast a casting vote could not properly be exercised and to cast it involved an error of law. The differences between the lay member and the judge were not confined to the judge’s “assessment and interpretation of the law”, but went much further and for that reason alone, the Upper Tribunal was right to set aside the determination of the First-tier Tribunal. The failure to comply with paragraph 10.2 of the Practice Statements was an error of law, but was not material to the decision of the First-tier Tribunal. The determination of the First-tier Tribunal was required to but failed to identify the features amounting to compelling reasons or exceptional circumstances justifying the success of the offender’s appeal and findings of fact that could properly be categorised as exceptional, or amounting to compelling reasons for the offender to be allowed to remain given the seriousness of his repeated criminal conduct, could not be identified in the determination. The First-tier Tribunal’s consideration of and emphasis on the offender’s rehabilitation was mistaken. The offender could not rely upon his own partially unreformed criminality as a factor relevant to either his family life or his private life.

TREACY and SULLIVAN LJJ agreed.