Jd (Congo) Wn (Gambia) Es (Iran) Mr (Bangladesh) v Secretary of State for the Home Department Public Law Project (Intervener)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan |
| Judgment Date | 16 March 2012 |
| Neutral Citation | [2012] EWCA Civ 327 |
| Docket Number | Case No: C5/2011/2009 & 2286 & 2628 & 2201 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 March 2012 |
and
[2012] EWCA Civ 327
Master of the Rolls
Lord Justice Maurice Kay Vice President of the Court of Appeal Civil Division
and
Lord Justice Sullivan
Case No: C5/2011/2009 & 2286 & 2628 & 2201
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
Ref: AA134472010
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Drabble QC and Mavelyn Vidal (instructed by Duncan Lewis & Co.) for JD
Raza Husain QC and Colin Yeo ( instructed by Sriharans) for WN
Raza Husain QC and Anthony Vaughan (instructed by Brighton Housing Trust) for ES
Zane Malik (instructed by) for MR
Michael Beloff QC, Shahram Taghavi and Charles Banner (instructed by Bates Wells Braithwaite London LLP for the Intervener
David Blundell (instructed by Treasury Solicitors) for the Respondent
Hearing date: 22 February 2012
This is the judgment of the Court.
Introduction
The right of appeal from the Upper Tribunal (Immigration and Asylum Chamber ) ("UT") to the Court of Appeal is subject to the "second-tier appeals test": permission to appeal is not to be granted unless the UT or this Court considers that:
"(a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason for the [Court of Appeal] to hear the appeal."
Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act") and The Appeals from the Upper Tribunal to the Court of Appeal Order 2008 ("the 2008 Order").
In PR (Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 73, [2011] EWCA Civ 988, (" PR") this Court explained how the second-tier appeals test was to be applied to appeals from the UT. In each of the three cases before the Court – PR, TC (Zimbabwe) and SS (Bangladesh) -the appellant had failed before both the First-tier Tribunal (FTT) and the UT. In PR, the UT having held that the FTT had erred in law by failing to consider a medical report, reconsidered the appeal and dismissed it. Giving the judgment of the Court, Carnwath LJ said in paragraph 41:
"In short, there is no case for contending that the nature of an asylum-seeker's case which has failed twice in the tribunal system is a compelling reason for giving permission for a further appeal." (emphasis added)
How should the test be applied in cases where the appellant has succeeded before the FTT but failed in the UT following a successful appeal by the Secretary of State? How should the test be applied in cases where the appellant has "failed twice in the tribunals system", but the FTT's adverse decision was set aside because it contained a material error of law, and the UT has re-made the decision and dismissed the appeal? The issue is not whether the second-tier appeals test applies to such cases (all of the parties accept that the test does apply), but how the test should be applied in such cases.
JD, WN and MR's appeals to the FTT were successful. On appeal by the Respondent, the UT having found that the FTT had materially erred in law, set aside the decisions in their favour, and substituted fresh decisions dismissing their appeals. ES's appeal to the FTT was dismissed, but the UT set that decision aside in its entirety. The UT then proceeded to re-make the decision, and dismissed ES's appeal.
JD's application for permission to appeal to this Court was considered by Carnwath LJ on the papers. He observed when adjourning the application for an oral hearing on notice to the Respondent:
"For the reasons given in the skeleton dated 15 August 2011, there is an arguable issue as to whether the UT judge was entitled to find an error of law in the FTT decision, but not one which would justify an appeal to this court under second appeal criteria explained in PR (Sri Lanka) [2011] EWCA Civ 988. There is, however, an arguable issue as to the application of those criteria to a case such as this where the UT has reversed the FTT decision. I am adjourning the application on notice to allow argument on that point."
The papers were referred to the Master of the Rolls to consider whether JD should be listed with other similar cases, where the applicant was successful in the FTT but not in the UT, to enable the Court to give guidance on the application of or weight to be given to the second-tier appeal test in such circumstances. The Master of the Rolls directed that these four applications for permission to appeal should be listed together to enable the Court to consider the following issues:
• "In JD and WN, the application of and weight to be given to the second appeals test where the applicant was successful in the FTT but the UTIAC reversed the decision.
• In ES, the same issue but in circumstances in which the FTT dismissed the appeal, an error of law was found in that decision which was set aside and the matter was heard de novo in the UTIAC.
• In MR the question of whether, in either of the above circumstances the UTIAC, once it has found a material error of law and decides to set aside the FTT's decision, should proceed to hear the appeal or should remit the matter to the FTT so that the second appeals test does not apply to the next onward appeal.
• In WN the relevance of the fact that an Immigration Judge sat in the UTIAC in the light of the judgment in PR (Sri Lanka) [2011] EWCA Civ 988 is also argued."
The test – the arguments
In summary, it was submitted on behalf of all the applicants, and by the Public Law Project (PLP) as an Intervener, that in those cases where:
i) the UT had reversed a decision of the FTT to allow an individual's appeal; or
ii) the UT had set aside a decision of the FTT to dismiss an individual's appeal because it contained a material error of law, and had then gone on to re-make the decision, and dismissed the appeal;
that was, of itself, a "compelling reason" for the Court of Appeal to hear the appeal, provided only that there was a real prospect of persuading the Court of Appeal that the UT had erred in law.
During the course of their submissions the applicants and the PLP acknowledged that the basis upon which the FTT's decision had been set aside by the UT might be relevant when the Court was considering whether there was a compelling reason to hear an appeal from the UT's decision; eg there might be a distinction between, at one end of the spectrum, those cases where there was a discrete error of law – failure to consider a particular piece of evidence – and at the other end of the spectrum, those cases where the hearing before the FTT had been so unfair that there had, in effect, been no proper hearing prior to the hearing before the UT.
As a fall back position, the applicants and the PLP submitted that if something more was needed for there to be a "compelling reason" to grant permission to appeal, then in those cases falling within (a) and (b) (above), a strongly arguable case that the UT had erred, when combined with the severity of the consequences for the appellant could amount to a compelling reason. Insofar as paragraph 36 of PR (see below, paragraph 24) decided that the severity of the consequences for the appellant was not, or was only exceptionally, a relevant factor when considering whether there were "compelling reasons", it was in conflict with the judgments of the Supreme Court in R (Cart) v Upper Tribunal (Public Law Project and another intervening) [2011] 3WLR 107, [2011] UKSC 28 (" Cart"), and was wrongly decided.
On behalf of the Respondent, Mr. Blundell submitted that the statutory language, previous authority and principle all dictated that the test was to be applied in the same manner in all cases, whether the appellant had failed before both the FTT and the UT, had succeeded before the FTT but failed before the UT, or had failed before the FTT, succeeded in having that decision set aside by the UT, but had then failed before the UT. He submitted that paragraph 36 of PR was consistent with the Supreme Court's decision in Cart.
The test—discussion
The background to the adoption of the second-tier appeals test and its application to appeals from the UT is set out in detail in the Court's judgment in PR. With two exceptions – Azimi v Newham London Borough Council (2001) 33 HLR 51 (" Azimi") and esure Insurance Ltd v Direct Line Insurance Plc [2009] Bus LR 438, [2008] EWCA Civ 842 ("esure") – all of the authorities to which we were referred were cited to, or considered by, the Court in PR. The authorities do not show any settled pattern for present purposes. There are extensive (albeit obiter) observations by Brooke LJ as to the implications of the (then) newly enacted second-tier appeals test in Tanfern v Cameron-Macdonald [2000] 1 WLR 1311 (" Tanfern"), but they are of no real assistance in the present case because the Court did not have to consider the application of the "other compelling reason" limb of the test to an appellant who had won below but lost at the first appellate level.
In Azimi the Court of Appeal applied the second-tier appeal test to an appeal by a local authority from a decision of a County Court judge who had allowed an appeal by an applicant for assistance as a homeless person against the authority's review decision that he was not entitled to accommodation. Although the court in PR was not referred to this decision, it is of limited assistance because the statutory context of Azimi was most unusual. The appeal to the County Court in such cases is an appeal...
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