Upper Tribunal (Immigration and asylum chamber), 2022-07-05, [2022] UKUT 00218 (IAC) (Joseph (permission to appeal requirements))
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Stephen Smith |
| Status | Reported |
| Date | 05 July 2022 |
| Published date | 30 September 2022 |
| Hearing Date | 13 June 2022 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | permission to appeal requirements |
| Appeal Number | [2022] UKUT 00218 (IAC) |
UT Neutral citation number: [2022] UKUT 00218 (IAC)
Joseph (permission to appeal requirements)
Upper Tribunal
(Immigration and Asylum Chamber)
Heard at Field House
THE IMMIGRATION ACTS
Heard on 13 June 2022
Promulgated on 5 July 2022
Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
miss Sherma joseph
(ANONYMITY DIRECTION not made)
Respondent
Representation:
For the Appellant: Mr P. Deller, Senior Home Office Presenting Officer
For the Respondent: Mr E. Fripp, Counsel, instructed by TM Legal Services
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In its role as an appeal body from decisions of the First-tier Tribunal, the Upper Tribunal is a permission-based jurisdiction. The process of (in the case of parties) applying for and (in the case of judges) granting or refusing permission to appeal performs an essential regulatory function governing the work of the Upper Tribunal. As such, it is vital that a party seeking permission to appeal does all it can to assist the Tribunal in the performance of its functions and the furtherance of the overriding objective.
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Where a representative makes an application for permission to appeal, the application should feature the name of the representative and should not be made solely under the generic name of the organisation or team making the application.
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Applications for permission to appeal should be made by reference to the established principles governing errors of law. 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.
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All permission to appeal decisions should feature brief reasons. That includes a decision to grant permission to appeal. It is a useful exercise in judicial self-restraint to say why it is thought that the grounds are arguable, particularly where the grounds of appeal challenge findings of fact reached by the judge below.
DECISION AND REASONS
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In its role as an appeal body from decisions of the First-tier Tribunal, the Upper Tribunal is a permission-based jurisdiction. An appeal may only be brought against a decision of the First-tier Tribunal with either the permission of that Tribunal, or directly from the Upper Tribunal: see section 11(3) of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”). It follows that the process for obtaining permission to appeal, and the basis upon which it may be granted, perform important regulatory functions.
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While the right of appeal to the Upper Tribunal derives from primary legislation, the framework governing the exercise of that right of appeal is to be found in two different rules of procedure. The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (“the FTT rules”) and the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the UT Rules”) govern the FTT and UT respectively. As will be seen from the full title of the FTT Rules, their focus is proceedings in the Immigration and Asylum Chamber of the First-tier Tribunal (“the FTT”). By contrast, the UT Rules cover three chambers of the Upper Tribunal (“the UT”). The Upper Tribunal (Lands Chamber) has its own rules.
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The Joint Presidential Guidance Note 2019 No. 1 Permission to appeal to UTIAC contains important guidance on many of the substantive and procedural considerations that are central to the task of any judge considering an application for permission to appeal to the Upper Tribunal (IAC), whether sitting in the First-tier Tribunal or the Upper Tribunal. This appeal gives rise to a number of additional points which are of primary relevance to a party making an application for permission to appeal, although some of the guidance we give is directed at judges considering applications for permission to appeal.
Permission to appeal: the procedural framework
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Under section 11(4) of the 2007 Act, permission to appeal (or, in Northern Ireland, leave) may be given by either the FTT or the UT, on an application by a party. The requirement to apply to the FTT before applying to the UT is not imposed by the 2007 Act, but rather by rules of procedure. By rule 33(1) of the FTT Rules, a party seeking permission to appeal to the UT must make a written application to “the Tribunal” for permission to appeal; that term is defined by rule 1(4) of those Rules to mean the First-tier Tribunal. The UT Rules make express provision requiring an application to be made to the FTT in the first instance; rule 21(2) of the UT Rules provides:
“(2) A person may apply to the Upper Tribunal for permission to appeal to the Upper Tribunal against a decision of another tribunal only if—
(a) they have made an application for permission to appeal to the tribunal which made the decision challenged; and
(b) that application has been refused or has not been admitted or has been granted only on limited grounds.”
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The remainder of rule 33 of the FTT Rules governs the requirements in that Tribunal for an application for permission to appeal, providing, where relevant:
“(2) Subject to paragraph (3), an application under paragraph (1) must be sent to the Tribunal so that it is received no later than 14 days after the date on which the party making the application was sent the written reasons for the decision.
(3) Where an appellant is outside the United Kingdom, an application to the Tribunal under paragraph (1) must be sent to the Tribunal so that it is received no later than 28 days after the date on which the party making the application was sent the written reasons for the decision.
(4) The time within which a party may apply for permission to appeal against an amended notice of decision runs from the date on which the party is sent the amended notice of decision.
(5) 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 and include any application for an extension of time and the reasons why such an extension should be given.”
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The key requirements when making an application to the FTT for permission to appeal to the UT are thus to make the application within the prescribed time limits, to identify the decision under challenge, the alleged errors of law, and the result sought, as well as applying to extend time, if relevant. There is no prescribed form. The rule does not require the name of the person making the application to be provided, nor does it have to be signed.
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The remainder of rule 21 of the UT Rules provides, where relevant:
“(3) An application for permission to appeal must be made in writing and received by the Upper Tribunal no later than—
[…]
(aa) in an asylum case or an immigration case where the appellant is in the United Kingdom at the time that the application is made, 14 days after the date on which notice of the First-tier Tribunal's refusal of permission was sent to the appellant; or
(b) otherwise, a month after the date on which the tribunal that made the decision under challenge sent notice of its refusal of permission to appeal, or refusal to admit the application for permission to appeal, to the appellant.
(4) The application must state—
(a) the name and address of the appellant;
(b) the name and address of the representative (if any) of the appellant;
(c) an address where documents for the appellant may be sent or delivered;
(d) details (including the full reference) of the decision challenged;
(e) the grounds on which the appellant relies; and
(f) whether the appellant wants the application to be dealt with at a hearing.
(5) The appellant must provide with the application a copy of—
(a) any written record of the decision being challenged;
(b) any separate written statement of reasons for that decision; and
(c) if the application is for permission to appeal against a decision of another tribunal, the notice of refusal of permission to appeal, or notice of refusal to admit the application for permission to appeal, from that other tribunal.
(6) If the appellant provides the application to the Upper Tribunal later than the time required by paragraph (3) or by an extension of time allowed under rule 5(3)(a) (power to extend time)—
(a) the application must include a request for an extension of time and the reason why the application was not provided in time; and
(b) unless the Upper Tribunal extends time for the application under rule 5(3)(a) (power to extend time) the Upper Tribunal must not admit the application.
(7) If the appellant makes an application to the Upper Tribunal for permission to appeal against the decision of another tribunal, and that other tribunal refused to admit the appellant's application for permission to appeal because the application for permission or for a written statement of reasons was not made in time—
(a) the application to the Upper Tribunal for permission to appeal must include the reason why the application to the other tribunal for permission to appeal or for a written statement of reasons, as the case may be, was not made in time; and
(b) the...
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