Assessing compelling reasons in second-tier appeals test

Court of Appeal

Published May 28, 2012

JD (Congo) v Secretary of State for the Home Department, Public Law Project intervening

WN (The Gambia) v Same

ES (Iran) v Same

MR (Bangladesh) v Same

Before Lord Neuberger of Abbotsbury, Master of the Rolls, Lord Justice Maurice Kay and Lord Justice Sullivan

Judgment March 16, 2012

A claimant refused asylum who succeeded on appeal to the First-tier Tribunal but failed on the Secretary of State for the Home Department’s appeal to the Upper Tribunal, could only appeal to the Court of Appeal if he satisfied the second-tier appeals test.

Where he relied, not on an important point of principle or practice, but on “some other compelling reason”, the test was stringent but flexible. In determining whether the threshold had been reached the court would take into account the relevant factors in the particular circumstances of the case, including the procedural history of the claim and the extreme consequences for the claimant if he were refused permission to appeal.

The Court of Appeal so held when considering aspplications for permission to appeal by JD (a Congolese national), WN (a Gambian national), ES (an Iranian national) and MR (a Bangladeshi national) from decisions of the Upper Tribunal (Immigration and Asylum Chamber) on appeal from the First-tier Tribunal.

The Court of Appeal gave permission for the judgment to be cited as authority for the statements of principle in respect of the application of the second-tier appeals test in such cases, but not as to the facts of the individual cases.

Mr Richard Drabble, QC and Ms Mavelyn Vidal for JD; Mr Raza Husain, QC and Mr Colin Yeo for WN; Mr Raza Husain, QC and Mr Anthony Vaughan for ES; Mr Zane Malik for MR; Mr Michael Beloff, QC, Mr Shahram Taghavi and Mr Charles Banner for Public Law Project, intervening; Mr David Blundell for the secretary of state.

LORD JUSTICE SULLIVAN, giving the judgment of the court, said that the right of appeal from the Upper Tribunal (Immigration and Asylum Chamber) to the Court of Appeal was subject to the “second-tier appeals” test: section 13(6) of the Tribunals, Courts and Enforcement Act 2007 and article 2 of the Appeals from the Upper Tribunal to the Court of Appeal Order 2008 (SI 2008 No 2834) provided that permission to appeal was not to be granted unless the Upper Tribunal or the Court of Appeal considered that “(a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason for the [Court of Appeal] to hear the appeal”.

In PR (Sri Lanka) v Secretary of State for the Home Department ([2012] 1 WLR 73), the Court of Appeal had explained how the second-tier appeals test should be applied to appeals from the Upper Tribunal. In the three cases before the court, the claimant having failed before both the First-tier Tribunal and the Upper Tribunal, the Court of Appeal had held that the nature of an asylum-seeker’s case which had failed twice in the tribunal system was not a compelling reason for giving permission for a further appeal.

How was the test to be applied where the claimant had succeeded before the First-tier Tribunal but failed in the Upper Tribunal following the secretary of state’s successful appeal? How was the test to be applied where the claimant had failed twice in the tribunal system but the Upper Tribunal had set aside the First-tier Tribunal’s adverse decision because it contained a material error of law, re-made the decision and dismissed the appeal?

Their Lordships accepted the importance of Lord Dyson’s warning in R (Cart) v Upper Tribunal(The Times June 23, 2011; [2011] 3 WLR 107, para 131) to exercise care in giving examples of what might be “some other compelling reason” because it depended on the particular circumstances of the case, and not to lay undue emphasis on the need for the consequences of an adverse decision to the claimant to be truly drastic.

However the examples given made it clear that the very adverse consequences for a claimant (or per Baroness Hale, at paragraph 57 “the extremity of consequences for the individual”) were capable, in combination with a strong argument that there had been an error of law, of amounting to “some other compelling reason”.

Although the test was stringent it was sufficiently flexible to take account of the particular circumstances of the case. Those circumstances might include the fact that a claimant had succeeded before the First-tier Tribunal and failed before the Upper Tribunal, or the fact that the First-tier Tribunal’s adverse decision had been set aside, and the decision had been re-made by the Upper Tribunal.

Those circumstances did not, of themselves, amount to “some other compelling reason”, but where they applied they were capable of being a relevant factor when the court was considering whether there was such a reason.

The statement in paragraph 36 of PR that extreme consequences for the individual did not constitute a free-standing test, the word “compelling” in the second-tier appeals test meaning “legally compelling”, was consistent with Cart. In PR the court was emphasising the fact that, absent a strongly arguable error of law on the Upper Tribunal’s part, extreme consequences for the individual could not, of themselves, amount to a free-standing “compelling reason”.

The threshold for a second appeal had to be higher than for an ordinary appeal: real prospect of success. How much higher, how strongly arguable the legal grounds for the challenge were required to be, depended upon the particular circumstances of the individual case, including how extreme the consequences of the Upper Tribunal’s allegedly erroneous decision were for the individual seeking permission to appeal.

At paragraph 53 of PR the court had stated that where there had only been one level of judicial consideration a slightly less demanding standard might be appropriate. That statement was not authority for the proposition that the mere fact that the Upper Tribunal had set aside the First-tier Tribunal’s decision and, exercising its discretion under section 12(2)(b)(ii) of the 2007 Act, re-made the decision was a compelling reason to grant permission to appeal provided the challenge to the Upper Tribunal’s decision had a real prospect of success.

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 provided that the latter should apply.

If the court was bound to have regard to the particular circumstances of the case, the reason why the First-tier Tribunal’s decision had been set aside was capable of being a relevant factor when deciding whether there had been, in substance, only one level of judicial consideration.