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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> JD (Congo) & Ors v Secretary of State for the Home Department & Anor [2012] EWCA Civ 327 (16 March 2012) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2012/327.html Cite as: [2012] EWCA Civ 327, [2012] 1 WLR 3273, [2012] WLR(D) 85, [2012] Imm AR 719, [2012] INLR 412 |
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ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
Ref: AA134472010
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MAURICE KAY
VICE PRESIDENT OF THE COURT OF APPEAL CIVIL DIVISION
and
LORD JUSTICE SULLIVAN
____________________
![]() ![]() ![]() ![]() WN (GAMBIA) ES (IRAN) MR (BANGLADESH) |
Appellant |
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-and – |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT and – PUBLIC LAW PROJECT Intervener |
Respondent |
____________________
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JD
Raza Husain QC and Colin Yeo (instructed by Sriharans)
for WN
Raza Husain QC and Anthony Vaughan (instructed by Brighton Housing Trust) for ES
Zane Malik (instructed by) for MR
Michael Beloff QC, Shahram Taghavi and Charles Banner(instructed by Bates Wells Braithwaite London LLP for the Intervener
David Blundell (instructed by Treasury Solicitors) for the Respondent
Hearing date: 22 February 2012
____________________
Crown Copyright ©
Lord Justice Sullivan:
This is the judgment of the Court.
Introduction
"(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."
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").
"In short, there is no case for contending that the nature of an asylum-seeker's case which has failed twice in the tribunal system is a compelling reason for giving permission for a further appeal." (emphasis added)
"For the reasons given in the skeleton dated 15 August 2011, there is an arguable issue as to whether the UT judge was entitled to find an error of law in the FTT decision, but not one which would justify an appeal to this court under second appeal criteria explained in PR (Sri Lanka) [2011] EWCA Civ 988. There is, however, an arguable issue as to the application of those criteria to a case such as this where the UT has reversed the FTT decision. I am adjourning the application on notice to allow argument on that point."
- "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 UTIAC reversed the decision.
- 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 UTIAC.
- In MR the question of whether, in either of the above circumstances the UTIAC, 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.
- In WN the relevance of the fact that an Immigration Judge sat in the UTIAC in the light of the judgment in PR (Sri Lanka) [2011] EWCA Civ 988 is also argued."
The test – the arguments
i) the UT had reversed a decision of the FTT to allow an individual's appeal; orii) the UT had set aside a decision of the FTT to dismiss an individual's appeal because it contained a material error of law, and had then gone on to re-make the decision, and dismissed the appeal;
that was, of itself, a "compelling reason" for the Court of Appeal to hear the appeal, provided only that there was a real prospect of persuading the Court of Appeal that the UT had erred in law.
The test - discussion
"It would be regrettable if helpful guidance for the majority of cases were to ossify into rule, and Dyson LJ was wise enough to say that his advice in Uphill's case was not intended to be exhaustive. The Court of Appeal has already shown itself willing to temper the way it will exercise its discretion to grant permission for a first appeal from a specialist appellate tribunal, depending on the expertise of the tribunal (see Civil Procedure (2005), vol 1, 1462-1463 (para 52.3.10) (the White Book). It should show itself no less willing to be flexible in its interpretation of CPR 52.13 depending on the provenance of the proposed appeal."
"[11] Both principle and authority demonstrate that it is not. In Tanfern Ltd v Cameron-Macdonald and Another [2000] 1 WLR 1311, paragraphs [41]-[46] the Court of Appeal emphasised when giving guidance about second appeals in civil cases in private law matters (but not including family cases) that even if this court takes the view that a second appeal is properly arguable or has a real prospect of success, that does not provide a justification for hearing it. The purpose behind s 55 (1) of the 1999 Act and CPR 52.13 is that, in general, there should only be one appeal from any given decision. Were either arguability or even a strong prospect of success to constitute a compelling reason for a second appeal, there would be no difference between first and second appeals, and the statute would be deprived of its meaning and effect. In our judgment, that must equally be so in family appeals. The strength of the case does not, of itself, provide a compelling reason to hear an appeal.
[12] When listing the matter before us, Wilson LJ commented: 'second appeals may have a different colour when the proposed appellant in this court prevailed in the court of trial'. We understand the thinking behind this comment: on the face of it, there is a stronger case for a second appeal where the earlier rulings are in conflict when where they are in harmony. However, the statute itself draws no such distinction.
[13] In the event, however, we take the view that this case does raise an important point of principle, namely the interrelationship between the roles of a parent and a grandparent in the welfare equation identified by s 1 of the 1989 Act. For that reason, we granted permission to appeal.
[14] It may also be the case – we did not hear argument on the point and have reached no concluded view – that the effect of a decision relating to the welfare or future upbringing of a child may itself constitute a compelling reason for hearing a second appeal. The importance of such decisions for the children and adults concerned cannot be over-emphasised. Moreover, the fact that two courts have reached different conclusions may (a word we emphasise) reinforce the justification for hearing the appeal."
Although the Court was minded to reject the submission (see paragraphs [11] and [12]) it did not have to decide the matter because the case did raise an important point of principle. In the event the Court appears to have left open the question whether (a) the impact of the decision upon the child, and (b) the fact that two courts had reached different conclusions, were factors which were capable of being relevant when considering whether there was a "compelling reason".
"In addition, there was a real prospect of success in this case in showing that the judge had, in a material respect, incorrectly exercised his appellate function. This also constitutes a compelling reason for the grant of permission for a second appeal for the purpose of CPR r 52.13 because the second appeal is the first opportunity that any party has had of seeking to correct this error and, if CPR r 52.13 were interpreted too stringently in this situation, there would be no right of appeal at all in these circumstances." (paragraph 65)
i) of itself a "compelling reason" to grant permission to appeal if there is a ground of appeal which has a real prospect of success; or
ii) of no relevance when deciding whether there is a "compelling reason" to grant permission to appeal.
"131 Thirdly, the second limb of the test ("some other compelling reason") would enable the court to examine an arguable error of law in a decision of the FTT which may not raise an important point of principle or practice, but which cries out for consideration by the court if the UT refuses to do so. 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. But they might include (i) a case where it is strongly arguable that the individual has suffered what Laws LJ referred to at para. 99 as "a wholly exceptional collapse of fair procedure" or (ii) a case where it is strongly arguable that there has been an error of law which has caused truly drastic consequences."
"57 For all those reasons, together with those given by Lord Dyson JSC (in the case) and Lord Hope of Craighead DPSC (in the Eba case [2011] 3 WLR 149), the adoption of the second-tier appeals criteria would be a rational and proportionate restriction upon the availability of judicial review of the refusal by the Upper Tribunal of permission to appeal to itself. It would recognise that the new and in many ways enhanced tribunal structure deserves a more restrained approach to judicial review than has previously been the case, while ensuring that important errors can still be corrected. It is a test which the courts are now very used to applying. It is capable of encompassing both the important point of principle affecting large numbers of similar claims and the compelling reasons presented by the extremity of the consequences for the individual."
"36. It is true that Baroness Hale and Lord Dyson JJSC in the Cart case acknowledged the possible relevance of the extreme consequences for the individual. However, as we read the judgments as a whole, such matters were not seen as constituting a free-standing test. In other words "compelling" means legally compelling, rather than compelling, perhaps, from a political or emotional point of view, although such considerations may exceptionally add weight to the legal arguments."
"We accept, however, that both the Uphill case [2005] 1 WLR 2070 and the Cart case [2011] 3 WLR 107 were directly concerned with true second appeals. A slightly less demanding standard may be appropriate where there has been only one level of judicial consideration. As Brooke LJ recognised in the Cramp case [2005] 4 All ER 1014, there is room for some flexibility having regard to the "provenance of the appeal" This might therefore in some cases be a factor in the overall evaluation of a "compelling" reason."
Remission
"(2) The Upper Tribunal –
(a) may (but need not) set aside the decision of the First-tier Tribunal, and
(b) if it does, must either –
(i) remit the case to the First-tier Tribunal with directions for its reconsideration, or
(ii) re-make the decision.
(4) In acting under subsection (2)(b)(ii), the Upper Tribunal -
(a) may make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision, and
(b) may make such findings of fact as it considers appropriate."
"7.2 The Upper Tribunal is likely on each such occasion to proceed to re-make the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper tribunal is satisfied that:-
the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
there are highly compelling reasons why the decision should not be re-made by the Upper Tribunal. (Such reasons are likely to be rare.)"
(paragraph 7.2 of the Practice Statements, see also paragraph 3.1(b) of the Practice Directions)
Immigration Judges sitting in UT
The individual cases