Third bite at the cherry?: uphill and downhill in second appeals

JD (Congo) & Ors v Secretary of State for the Home Department & Anor [2012] EWCA Civ 327 (16 March 2012) 

Appeals are hugely important but they cost a lot. Thus, in general litigation, the rich can pursue appeals easily whereas the poor can’t. But despite this discrepancy, appeals allow individual interests to be reheard when people are aggrieved with a decision. Similarly, it is in the interests of the state to maintain a system of justice and administration which inspires confidence. Therefore, as argued by Lord Woolf in his Access to Justice – Final Report in the mid-1990s, the correction of error through the appellate system serves the interests of the public and private spheres. But how far can one take that logic and whether or not the case should be heard again is an important question. 

The central questions in this case were: under what circumstances should the Court of Appeal allow appeals from the Upper Tribunal? What is the meaning of the phrase “other compelling reasons” in the second-tier appeals test?

The right of appeal

The right of appeal from the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) to the Court of Appeal (“CA”) is subject to the “second-tier appeals test” (“the test”) – 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”).

Under article 2 of the 2008 Order permission to appeal is not to be granted unless the UT or the CA considers that (a) an appeal raises some important point of principle or practice or (b) there is some other compelling reason for the CA to hear the appeal. This language is identical to CPR 52.13(2) in the White Book where sub-rules (a) and (b) mirror article 2(a) and (b) in the 2008 Order: inevitably the approaches of the courts in non-immigration cases are therefore important in the present discussion.

Court of Appeal and “compelling reasons” in the past

In PR (Sri Lanka) [2011] EWCA Civ 988, where Carnwath LJ at [36] interpreted compelling reasons as legally compelling, the test was described as not being “free-standing”. He could not see the nature of an asylum seeker’s case that had failed in the First-tier Tribunal (FTT) and the UT as a compelling reason for permission to be granted. But despite all this, as one would expect, two dismissed appeals in the two-tier tribunal structure can be synonymous with two errors of law.

The present case

This case concerned how the test should be applied in the tribunals’ system where the FTT has made an error of law and the decision was set aside and the UT has gone on to dismiss the appeal. There were four appellants/applicants in this case – JD, WN, MR and ES: the first three applicants had successful appeals in the FTT but the UT dismissed these and ES’s unsuccessful appeal in the FTT was set aside by the UT which remade the decision but still dismissed the appeal. Procedurally, the novelty was that in the circumstances it was arguable that case law provided no clear answers.

The CA considered the following issues

(1)  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 UT reversed the decision

(2)  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 UT

(3)  In MR the question of whether, in either of the above circumstances the UT, 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

(4)  In WN the relevance of the fact that an Immigration Judge sat in the UT in the light of the judgment in PR (Sri Lanka) [2011] EWCA Civ 988 is also argued”

But most significantly, for the purposes of the test, the CA clarified the relevance of the phrase “extreme consequences”. In the past, PR (Sri Lanka) at [36] suggested that extreme consequences would only be relevant in exceptional circumstances. In the present case, JD (Congo) & Ors, at [27] the CA, in a departure from PR (Sri Lanka) confirmed that there was:

No reason to minimise the significance of the consequences of a decision in the immigration and asylum field merely because legal errors in that field are often capable of having dire consequences for appellants.

The thrust of applicants’ arguments

The Public Law Project acted as an intervener in these proceedings. They quite rightly said that certain circumstances – for example where the FTT’s decision is set aside by the UT which subsequently remakes the decision and dismisses the appeal and there is a real prospect of persuading the CA that the UT erred in law – in themselves amounted to a “compelling reason” for the appeal to be heard.

Whether the error made by the FTT was discrete or very unfair was important in the applicants’ arguments because in the absence of a proper hearing in the FTT, the UT hearing takes on a first instance role apart from exercising its appellate jurisdiction. The applicants also made the argument that where there is a strong and arguable case that the UT erred in law creating severe consequences for an appellant, then this itself amounted to a compelling reason. It was submitted that in light of R (Cart) [2011] UKSC 28, PR was wrongly decided and Carnwath LJ was simply wrong.

The Court of Appeal’s approach

At [11] the CA – while appraising the authorities cited by the court in PR – noted that the authorities were “of no real assistance” as the “other compelling reason” limb of the test was not considered by the CA in a case where appellant had won below but lost at first instance.

But at [16] the CA said that the authorities did not support the applicant’s arguments. This was because they were “contrary to the statutory scheme” and ignored “the flexibility inherent in the statutory language” and the indications in case law (at [18]).

In R (Cart) at [38] the UKSC, Lady Hale, considered three possible approaches which were (a) exceptional circumstances (b) the status quo ante and (c) the second-tier appeals test. When deciding which option to adopt the Supreme Court had, necessarily, to consider the ambit of each of the options: in what circumstances, and subject to what constraints, would they permit a challenge to a refusal of permission to appeal.

At [131], while addressing the second limb of the test, the UKSC, Lord Dyson, said that some other compelling reason might be where an error of law “cries out” for consideration by the CA if the UT refuses to do so. Although the UKSC thought that “some other compelling reason” should be carefully exemplified, “wholly exceptional collapses of fair procedure” or cases where errors of law cause “truly drastic consequences” might serve of examples of what some other compelling reason might be. Similarly at [57] Lady Hale described the test’s scope as dually “including important points of principle affecting large numbers of similar claims and the compelling reasons presented by the extremity of the consequences for the individual.” The CA accepted that circumstances should not be “truly drastic” as the UKSC made it clear that when combined with an error of law truly adverse consequences were capable of fulfilling the test of “some other compelling reason.”

In Uphill [2005] 1 WLR 2070 – a tort case started by the deceased’s administratrix which considered CPR 52.13(2)(b) in the White Book – Dyson LJ (as he then was, at [24]) explained that “anything less than very good prospects of success will rarely suffice” but he qualified that by the observation that circumstances may arise in which there “is a compelling reason to grant permission to appeal even where the prospects of success are not high.” In light of this the applicants submitted that Carnwath LJ was wrong in PR (Sri Lanka): even the SSHD’s counsel accepted that to some extent because a strongly arguable error of law together with truly drastic consequences for the individual were compelling enough for permission to appeal to be granted.

Despite all this at [26] the CA partially stood by [36] of PR (Sri Lanka) and thought that in the absence of a strongly arguable error of law by the UT, extreme consequences for the individual, while not irrelevant, on their own were incapable of being a “free-standing compelling reason”: it was thus said that PR (Sri Lanka) was consistent with R (Cart).

At [27] the CA explained that the threshold for a second appeal – “sufficiently serious legal basis for challenging the UT’s decision” – had to be higher than a first appeal – “real prospect of success” – and thus the Court’s use of the former expression was deliberate. Exactly how much higher the threshold should be will be case specific. The CA at [29] did not accept the submission that the UT’s setting aside and re-making of the FTT’s decision counted as a compelling reason, provided there is a real prospect of success in challenging the UT’s decision, for permission to appeal to be granted.

The CA said [29]

Such an approach would substitute the ordinary test for granting permission to appeal for the second-tier appeals test in circumstances where the 2007 Act and the 2008 Order provide that the latter shall apply. Equally, paragraph 53 of PR does not support the Respondent’s position: that if the UT decides that it is not necessary to remit the case to the FTT, it is of no consequence for present purposes that the UT will be making its decision de novo.

The CA did not dispute that the test would apply when the UT exercised its discretionary powers under the 2007 Act, but it still remained, in light of PR (Sri Lanka) that since the Uphill and Cart cases “were directly concerned with true second appeals” it remained that “a slightly less demanding standard may be appropriate where there has been only one level of judicial consideration” which meant that “room for some flexibility” with respect to the “provenance of the appeal” may, “in some cases” be “a factor in the overall evaluation of a ‘compelling’ reason.

On the one hand at [22] the CA accepted

Mr. Beloff’s submission on behalf of PLP that it is important not to lose sight of Lord Dyson’s warning that “Care should be exercised in giving examples of what might be ‘some other compelling reason’ because it will depend on the particular circumstances of the case”. Undue emphasis should not be laid on the need for the consequences to be “truly drastic”. Lord Dyson was expressly giving two, non exhaustive, examples. However, the second of his examples makes it clear that very adverse consequences for an applicant (or per Baroness Hale, the “extremity of consequences for the individual”) are capable, in combination with a strong argument that there has been an error of law, of amounting to “some other compelling reason.”

Yet, on the other hand, at [23] it was said that

While the test is a stringent one it is sufficiently flexible to take account of the “particular circumstances of the case.” It seems to us that those circumstances could include the fact that an appellant has succeeded before the FTT and failed before the UT, or the fact that the FTT’s adverse decision has been set aside, and the decision has been re-made by the UT. Where they apply, those circumstances do not, of themselves, amount to “some other compelling reason”, but they are capable of being a relevant factor when the court is considering whether there is such a reason. In Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070 Dyson LJ (as he then was) said that “anything less than very good prospects of success will rarely suffice” for the purposes of the second-tier appeals test. However, he recognised that there “may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not high”: see the passages from Uphill cited in paragraph 8 of PR. Dyson LJ did not refer to the kind of circumstances with which we are concerned in these applications. That is not surprising, the Court in Uphill was not considering a case where the applicant for permission to appeal had succeeded at first instance but had failed at the first level of appeal. The defendant had failed before both the District Judge and the County Court Judge. Since Lord Dyson referred to Uphill and other authorities in his review of the earlier cases in Cart, it is appropriate to take his reference to the need for there to be a “strongly arguable” error of law as a synthesis of those earlier authorities.

Decision in individual cases

In the cases of JD, WN and ES permission to appeal was granted.

Permission to appeal was refused in MR’s case.

Afterword

At [38] the CA made some important observations. It said that the test “will still be more stringent than the ordinary test for granting permission” but that “it is not so stringent as to render the re-made decision ‘unappealable’”.

Likewise, the “more stringent test” did not justify “remitting the case rather that remaking the decision” and the CA was unequivocal in its view that, “Prompt decision making in the tribunals system is in the best interests of all parties.”

I’d like to thank everyone at Lamb Building who hosted a free immigration seminar (Fight, Flight or Evasion: the Second Appeals Test following the Decision in PR (Sri Lanka)) earlier this month which helped me read this judgment.

I’ll try to revise this post when I can as it was blogged on an slow internet connection in Karachi, Pakistan. It’s an easy place to get disconnected from the world.

About Asad Khan

Advocate High Courts of Pakistan
This entry was posted in Appeals, Court of Appeal, Tribunals, UKSC and tagged , , , , . Bookmark the permalink.

One Response to Third bite at the cherry?: uphill and downhill in second appeals

  1. mkp says:

    http://www.publications.parliament.uk/pa/ld201213/ldhansrd/text/120704-0002.htm

    Both the First-tier Tribunal and the Upper Tribunal are composed of judges who are experts in this most sensitive of subjects. Therefore, if the Upper Tribunal rejects the appeal, it seems right to the Government that the test to take the matter to a third judicial body should be high.

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