PR (Sri Lanka) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath |
| Judgment Date | 11 August 2011 |
| Neutral Citation | [2011] EWCA Civ 988 |
| Docket Number | Case No: C5/2010/2995, C5/2011/0844 & C5/2011/1133 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 August 2011 |
[2011] EWCA Civ 988
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)
AA054632010, AA045462010 & AA003922010
Royal Courts of Justice
Strand, London, WC2A 2LL
The RT Hon Lord Neuberger (Master of the Rolls)
The RT Hon Sir Anthony May (President of the Queen's Bench Division)
and
The RT Hon Lord Justice Carnwath (Senior President of Tribunals)
Case No: C5/2010/2995, C5/2011/0844 & C5/2011/1133
Michael Fordham QC, Alasdair Mackenzie & Arun Gananathan (instructed by Birnberg Peirce & Partners) for the 1 st Appellant
Tasaddat Hussain & Ish Ahmed (instructed by Parker Rhodes Hickmotts) for the 2 nd Appellant
Michael Fordham QC, Justine Fisher & Paul Nettleship (instructed by Sutovic & Hartigan) for the 3 rd Appellant
Jonathan Hall (instructed by Treasury Solicitors) for the Respondent
Hearing dates: Tuesday 26 th & Wednesday 27 th July, 2011
Lord Justice Carnwath (giving the judgment of the court):
Introduction
These are three renewed applications for permission to appeal against decisions of the Upper Tribunal Immigration and Asylum Chamber ("UTIAC"). They have all been identified as possible test cases on the application of the "second-tier appeals test" (under section 13(6) of the Tribunals Courts and Enforcement Act 2007) to immigration and asylum cases. Under that test "realistic prospects of success" are not enough. Permission to appeal may only be given if there is an important point of principle or practice or "other compelling reason" for the Court of Appeal to hear the case.
It is necessary to consider the test against the background of the corresponding criteria first applied to second-appeals from the courts by the Access to Justice Act 1999, and the subsequent case-law culminating in the recent Supreme Court judgments in the linked cases of R(Cart) v Upper Tribunal [2011] 3 WLR 107, [2011] UKSC 28, and (in relation to Scotland) Eba v Advocate General for Scotland [2011] 3 WLR 149, [2011] UKSC 29.
The second-tier appeal test
The Access to Justice Act 1999 introduced important changes to the procedure governing appeals to the Court of Appeal. Section 54 dealt with permission to appeal in general, providing statutory authority for a requirement for permission to appeal to be introduced by rules of court. Section 55 contained a specific test for "Second Appeals" in the Court of Appeal, under which, where a decision on an appeal has been made in the county court or High Court–
"no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that:
(a) the appeal would raise an important point of principle or practice; or
(b) there is some other compelling reason for the Court of Appeal to hear it."
This stricter test is to be contrasted with the normal test for appeals to any court, introduced under section 54 by CPR Part 52.3(6):
"(6) Permission to appeal may be given only where—
(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason why the appeal should be heard."
As Brooke LJ explained in Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311, the reasons for the change of appellate policy could be found in the 1997 Bowman Review of the Business of the Court of Appeal (Civil Division). This proposed that where there had been one appeal in a civil case "this should normally be the end of the matter", unless there were "special circumstances". This principle reflected "the need for certainty, reasonable expense and proportionality"; and the consideration that "judges of the quality of Lords Justices of Appeal were a scarce and valuable resource", which should be "used effectively and only on work which was appropriate to them". Brooke LJ added:
45 It is clear that in the Access to Justice Act 1999 Parliament not only accepted the report's analysis of the problems confronting the Court of Appeal but that it also adopted even tougher measures than those recommended by the review to ensure that second appeals would in future become a rarity and that the judges of this court would be freed to devote more of their time and energy in hearing first appeals in more substantive matters which either their court or a lower court had assessed as having a realistic prospect of success…."
It appears from Hansard that the word "compelling" (rather than "special", as proposed by the Bowman review) was adopted on the suggestion of Lord Woolf, after consultation with the Court of Appeal judges. The proposed formulation would, he said, enable the court to exercise its function –
"… of first of all dealing with important points of principle and practice and also acting as a safety valve so as to ensure that no compelling injustice… was done." ( Hansard HL 28 January 1999 col 1242)
Authoritative guidance on the operation of the second appeals test under the 1999 Act was given by Dyson LJ (with Tuckey LJ) in Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60, approved by the then Master of the Rolls (Lord Phillips) and Vice-President (Brooke LJ), but "not intended to be exhaustive". Of the first limb ("important point of principle or practice"), he distinguished between (a) establishing a principle or practice and (b) applying it correctly; only the former would justify a second appeal (para 18).
Of the second limb ("compelling reason") he said:
"24 (1) A good starting point will almost always be a consideration of the prospects of success. It is unlikely that the court will find that there is a compelling reason to give permission for a second appeal unless it forms the view that the prospects of success are very high. That will usually be a necessary requirement, although as we shall explain, it may not be sufficient to justify the grant of permission to appeal. This necessary condition will be satisfied where it is clear that the judge on the first appeal made a decision which is perverse or otherwise plainly wrong. It may be clear that the decision is wrong because it is inconsistent with authority of a higher court which demonstrates that the decision was plainly wrong. Subject to what we say at (3) below, anything less than very good prospects of success on an appeal will rarely suffice. In view of the exceptional nature of the jurisdiction conferred by CPR r 52.13(2), it is important not to assimilate the criteria for giving permission for a first appeal with those which apply in relation to second appeals.
"(2) Although the necessary condition which we have mentioned at (1) is satisfied, the fact that the prospects of success are very high will not necessarily be sufficient to provide a compelling reason for giving permission to appeal. An examination of all the circumstances of the case may lead the court to conclude that, despite the existence of very good prospects of success, there is no compelling reason for giving permission to appeal. For example, if it is the appellant's fault that the first appeal was dismissed, because he failed to refer to the authority of a higher court which demonstrates that the decision on the first appeal was wrong, the court may conclude that justice does not require this court to give the appellant the opportunity to have a second appeal. There is a reason for giving permission to appeal, but it is not compelling, because the appellant contributed to the court's mistake. On the other hand, if the authority of a higher court which shows that the decision on the first appeal was wrong post-dated that decision, then there might well be a compelling reason for giving permission for a second appeal.
(3) There may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not very high. The court may be satisfied that there are good grounds for believing that the hearing was tainted by some procedural irregularity so as to render the first appeal unfair. Suppose, for example, that the judge did not allow the appellant to present his or her case. In such a situation, the court might conclude that there was a compelling reason to give permission for a second appeal, even though the appellant had no more than a real, as opposed to fanciful, prospect of success. It would be plainly unjust to deny an appellant a second appeal in such a case, since to do so might, in effect, deny him a right of appeal altogether." (emphasis added)
In Cramp v Hastings BC [2005] 4 All ER 10, a housing case where the first appeal had been from a local authority to the County Court, Brooke LJ accepted that some flexibility might be needed in applying the Uphill guidance "depending on the provenance of the proposed appeal" (para 65).
It is to be noted that the same test was applied to appeals in family proceedings court. Thus in Re B (A Child) (Residence: Second Appeal) [2009] 2 FLR 632, the Court (Wall and Elias LJJ) held (applying Tanfern, but apparently without being referred to Uphill) that the mere fact that the decision of the High Court was "arguably plainly wrong" did not give rise to a compelling reason to hear the appeal, in the absence of an important point of principle or practice ([10]–[11]). They left open (because not argued) the question whether the fact that a decision related to the welfare or future upbringing of a child might itself give rise to a compelling reason [14].
In a separate line of authority, this court had been required to consider the appropriate criteria for the grant of permission to challenge by judicial review decisions of the inferior courts and tribunals. The two most significant cases were R(Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738, [2003] 1 WLR 475, and ...
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