Joseph (Permission to Appeal Requirements)
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,Stephen Smith UTJ |
| Judgment Date | 05 July 2022 |
| Neutral Citation | [2022] UKUT 218 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2022] UKUT 218 (IAC)
Lane J (President) and Stephen Smith UTJ
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Human rights — Article 3 of the ECHR — health cases — ability to afford treatment — ‘clear proof’ not required — procedure and process — permission to appeal — requirements — good practice guidance — overriding objective — distinction between errors of law and disagreements of fact — reasons for granting permission should be given
The Claimant, a citizen of Trinidad and Tobago, entered the United Kingdom on a visit visa in November 2007 and overstayed. In 2012 she tried, unsuccessfully, to regularise her status. In 2019 she made a human rights claim based primarily on her health conditions arising from her then recent kidney transplant and her continuing need to take immunosuppressant medication to avoid end-stage kidney failure and life-long dialysis. The Secretary of State for the Home Department refused the claim on the grounds, inter alia, that her health conditions were not such that she met the high threshold for leave to remain under Article 3 ECHR, as she did not meet the test in N v Secretary of State for the Home Department[2005] UKHL 31. The Claimant appealed.
The First-tier Tribunal (‘FtT’) allowed the appeal, finding that treatment was unlikely to be available to the Claimant in Trinidad and Tobago and that there was a real risk of her being subject to inhuman or degrading treatment contrary to Article 3 ECHR. The FtT went on to find that, in the light of the Claimant's health conditions, removal would constitute a disproportionate interference with her Article 8 ECHR private life rights.
The Secretary of State appealed. Under the heading ‘making a material misdirection/lack of adequate reasoning’, the grounds of appeal stated that the Claimant's case ‘does not meet’ the high threshold to establish a breach under Article 3 ECHR and the Claimant ‘has not provided evidence’ capable of demonstrating that there were substantial grounds for believing that she would be exposed to a real risk of being subject to inhuman treatment. Regarding Article 8 ECHR, the grounds stated that the requirements of paragraph 276ADE of the Immigration Rules HC 395 (as amended) ‘are not met’.
Held, dismissing the appeal:
(1) In its role as an appeal body from decisions of the FtT, the Upper Tribunal (‘UT’) was a permission-based jurisdiction. The process of applying for and granting or refusing permission to appeal performed an essential regulatory function governing the work of the UT. As such, it was vital that a party seeking permission to appeal did all it could to assist the tribunal in the performance of its functions and the furtherance of the overriding objective. It would be good practice, and in accordance with the overriding objective, if more than the bare minimum required by rule 33(5) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (‘the FtT Rules’) was provided. It would generally be helpful for a person applying for permission to appeal to the FtT to state his or her name, even if the application was being submitted by a representative. Where the application was made by a firm of solicitors it would be helpful for the solicitor with responsibility for the conduct of the matter to append his or her name to the application, rather than merely providing the identity of the firm. In addition to providing an immediate point of contact between tribunal and representative, the public linkage of that individual with the application might result in greater ownership of, and responsibility for, the contents of the application. In turn, that might have a positive impact on the quality of the grounds of appeal, and of any ensuing judicial decision concerning permission to appeal. Where the application was made by or on behalf of the Secretary of State, it should identify the author of the grounds, or another person willing and able expressly to take responsibility for them (paras 1 – 11).
(2) It was essential for an application for permission to appeal to be pleaded by reference to an arguable error of law, not a disagreement of fact or weight. Maintaining the distinction between errors of law and disagreements of fact was essential; it reflected the jurisdictional delimitation between the first-instance role of the FtT and the appellate role of the UT and reflected the institutional competence of the FtT as the primary fact-finding tribunal. Judges considering applications for permission to appeal should resist attempts by appellants to dress up or re-package disagreements of fact as errors of law: AE (Iraq) v Secretary of State for the Home Department[2021] EWCA Civ 948 applied (para 13).
(3) Rule 34(4)(a) of the FtT Rules and rule 22(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 made express provision for reasons to be given in an application for permission to appeal only when permission was refused. The need forjudges to give reasons for decisions was, however, a foundational principle of natural justice. To avoid a grant of permission to appeal being infected by poorly pleaded grounds, the permission judge should briefly state the reasons for granting permission, especially where the grounds of appeal challenged findings of fact reached by the FtT. Where, notwithstanding the appellate restraint in relation to findings of fact, a permission judge considered that the findings of fact reached by the judge below arguably involved the making of an error of law, it would be helpful for the tribunal dealing with the substantive appeal to know in precise terms why the permission judge took that view (para 21).
(4) Although the grounds of appeal in the instant case were drafted under the rubric of a reasons-based challenge, the terminology of the grounds adopted the language of disagreement. It was rarely appropriate simply to use the language of disagreement in grounds of appeal that sought to demonstrate an arguable error of law. Where grounds sought to demonstrate that no reasonable judge could have reached the findings that the judge reached, or that there was no evidence to support the findings found, those contentions should be identified expressly. Simply peppering a series of disagreements of fact and weight with well-established terminology relating to the error of law jurisdiction would not have the effect of bringing such disagreements into error of law territory (paras 45 – 47).
(5) The FtT Judge was entitled to conclude that, if the Claimant did not receive the treatment she currently received upon her return to Trinidad and Tobago, she would be subjected to a significant reduction in her life expectancy, and to intense suffering. While the Judge accepted that treatment was available in Trinidad and Tobago, the issue was its affordability and therefore its accessibility to the Claimant. The FtT Judge observed that there was ‘no clear documentary evidence’ about the Claimant's ability to access appropriate medication. The absence of ‘clear proof was not necessarily a barrier to an Article 3 claim succeeding, still less did it mean that the FtT Judge reached findings that no reasonable judge could reach: Paposhvili v Belgium2016 ECHR 41738/10 and AM (Art 3; health cases) Zimbabwe[2022] UKUT 131 (IAC) applied. The FtT Judge was entitled to place some weight on the evidence of the witnesses regarding the Claimant's ability to afford treatment, especially since it was consistent with the apparent concession contained in the refusal letter that the Claimant might well have been unable to afford the medical treatment that would otherwise be available to her. While not all judges would have reached the conclusions reached by the FtT Judge concerning Article 3, the findings she reached were open to her and the reasons she gave for reaching those findings were sufficient. Since the appeal was legitimately allowed on Article 3 grounds, if the FtT Judge did err by allowing it also on Article 8 grounds, the error was immaterial (paras 49 – 62).
AE (Iraq) v Secretary of State for the Home Department [2021] EWCA Civ 948; [2021] Imm AR 1499
AM (Art 3; health cases) Zimbabwe [2022] UKUT 131 (IAC); [2022] Imm AR 1021
AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17; [2021] AC 633; [2020] 2 WLR 1152; [2020] 3 All ER 1003; [2020] Imm AR 1167; [2020] INLR 401
English v Emery Reimbold & Strick Limited; DJ & C Withers (Farms) Limited v Ambic Equipment Limited; Verrechia (Trading as Freightmaster Commercials) v Commissioner of Police for the Metropolis[2002] EWCA Civ 605; [2002] 1 WLR 2409; [2002] 3 All ER 385
Flannery and Another v Halifax Estate Agencies Ltd (Trading as Colleys Professional Services) [1999] EWCA Civ 811; [2000] 1 WLR 377; [2000] 1 All ER 373
MK (duty to give reasons) Pakistan [2013] UKUT 641 (IAC)
N v Secretary of State for the Home Department [2005] UKHL 31; [2005] 2 AC 296; [2005] 2 WLR 1124; [2005] 4 All ER 1017; [2005] Imm AR 353; [2005] INLR 388
Nixon (permission to appeal: grounds) [2014] UKUT 368 (IAC)
Paposhvili v Belgium 2016 ECHR 41738/10; [2017] Imm AR 867; [2017] INLR 497
SA (Non-compliance with rule 21(4)) Bangladesh [2022] UKUT 132 (IAC); [2022] Imm AR 1049
Savran v Denmark 2021 ECHR 57467/15; [2022] Imm AR 485
UT (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1095
Volpi and Delta Limited v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48
European Convention on Human Rights, Articles 3 & 8
Immigration Act 1971, section 3C
Immigration Rules HC 395 (as amended), paragraph 276ADE; paragraphs S-LTR.4.4. & S-LTR.4.5 of Appendix FM
Nationality, Immigration and Asylum Act 2002, sections 82(1)(b), 84(1)(c) & 104
Tribunals, Courts and Enforcement Act 2007, section 11
Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014...
To continue reading
Request your trial
-
TC (PS Compliance — “Issues-Based” Reasoning) Zimbabwe
...UKSC 22; [2022] 1 WLR 3784; [2023] 1 All ER 365; [2022] INLR 425; [2022] Imm AR 1516 Joseph (permission to appeal requirements) [2022] UKUT 218 (IAC); [2022] Imm AR 1360 Lata (FtT: principal controversial issues) [2023] UKUT 163 (IAC); [2023] Imm AR Page MA (Pakistan) v Secretary of State f......
-
Upper Tribunal (Immigration and asylum chamber), 2023-03-26, IA/00998/2020
...who settle grounds of appeal: Nixon (permission to appeal: grounds) [2014] UKUT 368 (IAC), Joseph (permission to appeal requirements) [2022] UKUT 218 (IAC), and Municipio De Mariana & Ors v BHP Group PLC & BHP Group Ltd [2021] EWCA Civ 1156; [2022] 1 WLR 919, at [113]-[114]. It is not too m......
-
Upper Tribunal (Immigration and asylum chamber), 2023-06-14, [2023] UKUT 00164 (IAC) (TC (PS compliance, “issues-based” reasoning))
...to be unarguable and another arguable they should say so, and give concise reasons – see Joseph (permission to appeal requirements) [2022] UKUT 218 (IAC); [2022] Imm AR 1360. When the order provides that permission to appeal is granted, the reasons for that grant should be concise, crisp, c......
-
Upper Tribunal (Immigration and asylum chamber), 2023-07-10, UI-2023-000601
...important in this jurisdiction. The Upper Tribunal is a permission-based jurisdiction (see Joseph (permission to appeal requirements) [2022] UKUT 218 (IAC) at paragraph 1). The process of obtaining permission to appeal requires a party seeking to challenge a decision of the First-tier Tribu......