PR (Sri Lanka) & Ors v Secretary of State for the Home Department

Factual and Procedural Background

This opinion concerns three renewed applications for permission to appeal against decisions of the Upper Tribunal Immigration and Asylum Chamber ("UTIAC"). These cases were identified as potential test cases for 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. The test requires that permission to appeal is granted only if there is an important point of principle or practice, or some other compelling reason for the Court of Appeal to hear the case, and "realistic prospects of success" alone are insufficient.

The opinion traces the development of the second-tier appeals test from the Access to Justice Act 1999, relevant case law including Supreme Court decisions in linked cases, and the statutory framework established by the Tribunals, Courts and Enforcement Act 2007. It also discusses the integration of immigration and asylum appeals into the two-tier tribunal system in 2010, replacing the previous single-tier system.

The three cases before the court involve appellants challenging decisions on asylum or immigration appeals, each having been dismissed at both the First-Tier Tribunal and the Upper Tribunal levels. The applicants sought permission to appeal to the Court of Appeal, which is the focus of the present applications.

Legal Issues Presented

1. Whether the "second-tier appeals test" under section 13(6) of the Tribunals Courts and Enforcement Act 2007 applies to immigration and asylum cases in the same way as to other tribunal appeals.
2. What constitutes an "important point of principle or practice" or "other compelling reason" sufficient to grant permission to appeal from the Upper Tribunal to the Court of Appeal.
3. Whether the serious consequences for individuals in asylum or immigration cases, including potential breaches of international human rights obligations, amount to a compelling reason to grant permission to appeal.
4. The extent to which ministerial statements and parliamentary debates may be relied upon as aids to the interpretation of the statutory test.
5. The appropriate approach to judicial review of Upper Tribunal decisions in the context of the new two-tier tribunal system.

Arguments of the Parties

Appellants' Arguments

• The starting point for permission should be a properly arguable material error of law.
• The second limb of the test allows appeals that do not raise important points of principle or practice but have other compelling implications, such as serious consequences for individuals, the State, and the Court.
• Asylum removal cases involve serious risks of harm and thus should be considered compelling due to the extremity of the consequences for the individual.
• Removal in violation of the UK's international human rights obligations is a compelling reason to grant permission.
• The Court should give special vigilance to asylum removal cases, reflecting the "anxious scrutiny" approach.
• Ministerial assurances in 2010 debates indicate that important human rights issues in asylum cases would be encompassed within the second-tier appeals test.
• The scope of "compelling reasons" should include well-founded claims of flagrant breaches of human rights and other decisions that may make the difference between a reasonable life and destitution.

Respondent's Arguments (Secretary of State)

• The availability of challenges to decisions of the unified Tribunal system should not depend on the subject matter of the appeal, including asylum cases.
• The Supreme Court rejected the argument that asylum cases require a different or less restrictive approach to permission to appeal.
• Ministerial statements made in 2010 cannot be relied on as an aid to interpreting legislation enacted in 2007 or orders made in 2008.
• Even if ministerial statements were estoppel, the court must independently determine the test's application.
• There is no international law obligation to provide a second appeal; once a competent court or tribunal has decided, the government may proceed on that basis.
• The Court of Appeal should apply the same principles as in Uphill regarding second appeals, including the requirement of "very high" prospects of success or compelling reasons such as procedural irregularity.
• Serious consequences to the individual may be relevant, but failure at two tribunal levels reduces the need for further scrutiny.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed examination of the historical development and statutory framework of the second-tier appeals test, emphasizing its purpose to conserve judicial resources by restricting appeals to cases involving important points of principle or practice, or other compelling reasons. The court reaffirmed that "realistic prospects of success" alone do not suffice to justify permission to appeal.

It reviewed authoritative guidance, particularly from Uphill, which stresses the narrowness of the exception and the necessity for prospects of success to be "very high" or for the appeal to involve a perverse or plainly wrong decision or serious procedural irregularity. The court noted that compelling reasons must be legally compelling rather than merely politically or emotionally compelling.

The court rejected the appellants' argument that the serious consequences for individuals in asylum cases, including potential breaches of international human rights obligations, constitute a compelling reason for permission to appeal. It held that the tribunal system, including the Upper Tribunal, is competent to determine such claims and that the second-tier appeals test applies uniformly regardless of subject matter.

The court further held that ministerial statements made after the legislation's enactment are not admissible aids to statutory interpretation and do not bind the court. The court reinforced that the final judgment on whether permission should be granted rests with the Court of Appeal, independent of government positions.

In applying these principles to the three cases, the court found no important points of principle or practice nor other compelling reasons to justify permission to appeal. The decisions of the Upper Tribunal were not perverse, plainly wrong, or procedurally unfair. The court acknowledged the specialist expertise and involvement of senior judges in the tribunal system as enhancing the quality of decision-making and diminishing the need for further appeals.

Holding and Implications

The court REFUSED PERMISSION TO APPEAL in all three cases.

The decision confirms the strict application of the second-tier appeals test to immigration and asylum cases, reinforcing judicial restraint and efficient use of judicial resources. It clarifies that serious consequences for appellants, including potential breaches of human rights, do not alone justify permission to appeal absent an important point of principle or other compelling legal reason. Ministerial statements made post-legislation cannot be relied upon to expand the scope of appeals.

This ruling maintains the status quo that the two-tier tribunal system, with its specialist judges and judicial oversight, provides an adequate forum for resolving immigration and asylum disputes, limiting the role of the Court of Appeal to exceptional cases. No new precedent was created beyond affirming existing principles and their consistent application.