Nixon (permission to appeal: grounds)
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice McCloskey |
| Judgment Date | 09 July 2014 |
| Neutral Citation | [2014] UKUT 368 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 09 July 2014 |
[2014] UKUT 368 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The President, The Hon. Mr Justice McCloskey
For the Appellant: Mr Smart, Senior Home Office Presenting Officer.
For the Respondent: Mr M Azmi (of Counsel), instructed by Genesis Law Associates Limited.
Nixon (permission to appeal: grounds)
Whilst making due allowance where an applicant for permission to appeal to the Upper Tribunal is unrepresented and in respect of the requirement to consider obvious points arising under the Refugee Convention or ECHR ( R v Secretary of State for the Home Department ex parte Robinson [1997] 3 WLR 1162 ), the First-tier Tribunal and the Upper Tribunal can be expected to deal brusquely and robustly with any application for permission that does not specify clearly and coherently, with appropriate particulars, the error(s) of law said to contaminate the decision under challenge. Besides placing unnecessary demands upon the judiciary, poorly compiled applications risk undermining the important value of legal certainty and causing unfairness to the other party.
This appeal has its origins in a decision made on behalf of the Secretary of State for the Home Department (the “ Secretary of State”), dated 24 September 2013, whereby Mr Nixon's application for leave to remain in the United Kingdom, based on Article 8 ECHR, was refused. Mr Nixon's appeal was allowed by the First-tier Tribunal (the “ FtT”). The Secretary of State appeals, with permission, to this Tribunal.
I draw attention to the two grounds upon which permission to appeal were formulated:
[1] “The Judge erred in according no weight to the emails from a local authority social services department to the effect that the Appellant was not living with his wife and child.”
[2] “The Judge erred in assessing the credibility of the three witnesses (besides sponsor, appellant and child) who gave evidence.”
The grant of permission to appeal focused exclusively on the second of these grounds and was couched in the following terms:
“The grounds submit the Judge erred in law in her credibility assessment of the three witnesses …
It is arguable that the Judge erred in law by finding that the three witnesses … gave evidence honestly and using that finding as the basis for finding the Appellant's evidence credible ….
It is arguable that the Judge gave inadequate reasons for finding that the Appellant lived with his wife in a subsisting relationship.”
The permission Judge added:
“The grounds may be argued.”
It is appropriate to draw attention to the governing statutory and regulatory regime. Section 11(2) of the Tribunals, Courts and Enforcement Act 2007 ( “the 2007 Act”) confers a right of appeal to the Upper Tribunal against decisions of the FtT, provided that permission to appeal is granted by one or other. This has been the governing statutory provision since the introduction of the new two tier system with effect from 15 February 2010. Pursuant to section 11(5) and certain measures of related subordinate legislation, specified decisions are excluded from the appeals regime: decisions in asylum support appeals, bail decisions and any procedural, ancillary or preliminary decisions in appeals, as defined.
The requirement to secure permission to appeal establishes a pre-condition, or threshold, of real substance. The content of applications for permission to appeal is regulated by subordinate legislation. Rule 24(5) of The Asylum and Immigration Tribunal (Procedure) Rules 2005 (the “ 2005 Rules”) provides:
“An application under paragraph (1) must –
(a) identify the decision of the Tribunal to which it relates;
(b) identify the alleged error or errors of law in the decision; and
(c) state the result the party making the application is seeking.”
[My emphasis.]
Rule 25(4) provides that in determining permission to appeal applications, the FtT “ must” provide written reasons for its decision. Further, per Rule 25(5), the FtT may give permission to appeal on limited grounds but, in doing so, must provide its reasons for refusing permission on any other ground. By Rule 21 of the Tribunal Procedure (Upper Tribunal) Rules 2008, an unsuccessful applicant for permission to appeal may renew the application before the Upper Tribunal, Immigration and Asylum Chamber (“UTIAC”). The decision of UTIAC on such applications is final, subject to limited challenge in the Administrative Court by judicial review: see Cart v Upper Tribunal [2011] UKSC 28 and Eba v Advocate General for Scotland [2011] UKSC 29.
UTIAC Guidance Note 2011 No 1 must also be considered. This was introduced in July 2011 and amended in September 2013. It makes clear that the threshold test for granting permission to appeal against appealable decisions of the FtT is whether an arguable material error of law has been demonstrated. The possibility of granting permission in cases where an arguable, but evidently immaterial, error of law has been committed is recognised. The general rule enunciated in Anoliefo (permission to appeal) [2013] UKUT 00345 (IAC) should be noted. The President stated, at [16]:
“Where there is no reasonable prospect that any error of law alleged in the grounds of appeal could have made a difference to the outcome, permission to appeal should not normally be granted in the absence of some point of public importance that is otherwise in the public interest to determine”.
FtT Judges considering applications for permission to appeal must also be alert to their power under rule 60 of the 2005 Rules to set aside the decision challenged on the grounds of clerical error or other accidental slip or omission or administrative error on the part of the Tribunal or its staff. Judges should also be alive to the power conferred by section 9 of the 2007 Act, read in tandem with rules 25 and 26 of the 2005 Rules, to review FtT decisions when an application for permission to appeal is received. Where a review is undertaken, the FtT is empowered to correct accidental errors in the decision or in a record thereof; or amend the reasons given for the decision; or set the decision aside: per section 9(4).
Given recent experience, it may be timely to formulate some general rules of practice. It is axiomatic that every application for permission to appeal to the Upper Tribunal should identify, clearly and with all necessary particulars, the...
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