JD (Congo) & Ors v Secretary of State for the Home Department & Anor

Factual and Procedural Background

This opinion concerns applications for permission to appeal from decisions of the Upper Tribunal (Immigration and Asylum Chamber) ("UT") to the Court of Appeal under the second-tier appeals test. The test requires that permission to appeal is granted only if the appeal raises an important point of principle or practice, or there is some other compelling reason for the Court of Appeal to hear the appeal.

The cases involve appellants who had varying outcomes before the First-tier Tribunal (FTT) and the UT: some succeeded before the FTT but lost on appeal to the UT, while others had their FTT decisions set aside by the UT which then re-made the decision. The Court was tasked with clarifying how the second-tier appeals test should be applied in such circumstances, particularly where the UT reverses or re-makes decisions of the FTT.

The Master of the Rolls directed that four applications for permission to appeal be heard together to provide guidance on:

• The application and weight of the second-tier appeals test where the appellant succeeded before the FTT but lost in the UT.
• The application of the test where the UT set aside a dismissal by the FTT due to a material error of law and re-made the decision.
• Whether the UT, having found a material error of law, should re-make the decision or remit the matter to the FTT to avoid the second-tier appeals test applying to the next appeal.
• The significance of an Immigration Judge sitting in the UT in light of prior authority.

Legal Issues Presented

1. How should the second-tier appeals test be applied where the appellant succeeded before the FTT but failed before the UT?
2. How should the test be applied where the UT set aside a FTT dismissal for material error of law and re-made the decision?
3. Should the UT, after finding a material error of law, re-make the decision or remit the matter to the FTT to avoid the second-tier appeals test applying to subsequent appeals?
4. What is the relevance of an Immigration Judge (rather than a Senior Immigration Judge) sitting in the UT for the purposes of the second-tier appeals test?

Arguments of the Parties

Applicants' Arguments

• Where the UT reverses a FTT decision allowing an appeal or sets aside a FTT dismissal due to a material error of law and then re-makes the decision dismissing the appeal, this alone constitutes a "compelling reason" to grant permission to appeal, provided there is a real prospect of persuading the Court of Appeal that the UT erred in law.
• The basis on which the FTT's decision was set aside should be relevant, distinguishing between discrete errors and cases involving a collapse of fair procedure.
• If more is needed beyond the above, a strongly arguable error of law combined with the severity of consequences for the appellant should amount to a compelling reason.
• The UT should remit cases for redetermination by the FTT rather than re-making decisions to avoid the application of the second-tier appeals test to re-made decisions.
• The fact that an Immigration Judge sat in the UT should be a factor satisfying the second limb of the second-tier appeals test.

Respondent's Arguments

• The statutory language, previous authority, and principle require the second-tier appeals test to be applied uniformly regardless of whether the appellant succeeded before the FTT or not.
• Paragraph 36 of PR (Sri Lanka) is consistent with the Supreme Court's decision in Cart, meaning that severity of consequences is not generally a free-standing compelling reason.
• The UT has discretion to re-make decisions, and this practice is appropriate and efficient; remitting cases to the FTT is not required.
• The qualifications or experience of the individual judge sitting in the UT are not relevant factors unless statutory criteria for appointment were not met.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
PR (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 988	Explanation of the second-tier appeals test and its application to appeals from the UT.	Provided the foundational framework for applying the test, particularly regarding cases where appellants failed twice in the tribunal system.
R (Cart) v Upper Tribunal [2011] UKSC 28	Endorsed the second-tier appeals test for judicial review refusals by the UT and emphasized the need for a compelling reason to hear second appeals.	Supported a flexible application of the test, allowing consideration of extreme consequences combined with a strong arguable error of law.
Azimi v Newham London Borough Council (2001) 33 HLR 51	Application of the second-tier appeals test in a local authority context involving appeals on points of law.	Considered but noted as of limited assistance due to unusual statutory context.
esure Insurance Ltd v Direct Line Insurance Plc [2008] EWCA Civ 842	Granting permission for second appeal where there was a real prospect of success in correcting an appellate error.	Demonstrated that a second appeal may be warranted if it is the first opportunity to correct an error of law.
Cramp v Hastings Borough Council [2005] EWCA Civ 1005	Flexibility in applying the second-tier appeals test depending on the provenance of the appeal.	Supported the idea that the nature of the appeal and tribunal expertise influence the test's application.
Re B (Residence: second Appeal) [2009] EWCA Civ 545	Clarified that a strong prospect of success alone is not a compelling reason for a second appeal.	Confirmed that the statute does not distinguish based on whether the appellant won at trial but lost on appeal.
Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070	Set a high threshold for the second-tier appeals test but acknowledged possible compelling reasons even with less than very good prospects.	Used to illustrate the need for a strongly arguable error of law as a synthesis of earlier authorities.
Tanfern v Cameron-Macdonald [2000] 1 WLR 1311	Early obiter observations on the implications of the second-tier appeals test.	Not directly helpful here but referenced for background.
Eba v Advocate General [2011] 3 WLR 149	Referenced in Cart regarding judicial review refusals by the UT.	Supported the adoption of the second-tier appeals test.

Court's Reasoning and Analysis

The Court analyzed the statutory framework under the Tribunals, Courts and Enforcement Act 2007 and the Appeals from the Upper Tribunal to the Court of Appeal Order 2008, which impose the second-tier appeals test for appeals from the UT to the Court of Appeal.

The Court emphasized that permission to appeal is only granted if the appeal raises an important point of principle or practice, or there is some other compelling reason to hear the appeal. The Court rejected the extremes of considering the mere fact that the UT reversed or re-made a FTT decision as either automatically compelling or irrelevant.

The Court reviewed relevant authorities, including PR (Sri Lanka), Cart, esure, and Re B, to clarify that while a real prospect of success is necessary, it is not by itself sufficient to satisfy the second-tier appeals test. The test is stringent but flexible, allowing the Court to consider the particular circumstances of each case, including the severity of consequences for the appellant and the nature of the legal error.

The Court noted that when the UT re-makes a decision after setting aside a FTT decision for error of law, the second-tier appeals test still applies, but the particular circumstances, such as whether there has been effectively one or two levels of judicial consideration, are relevant.

The Court found that the practice of the UT re-making decisions rather than remitting to the FTT is lawful, efficient, and consistent with the statutory obligation to conduct fair and expeditious proceedings. The fear that re-made decisions would be unappealable under the second-tier appeals test was unfounded.

Regarding the argument that an Immigration Judge sitting in the UT should be a factor in granting permission, the Court held that the qualifications or experience of individual judges are not relevant unless statutory criteria for appointment are not met.

Holding and Implications

The Court GRANTED permission to appeal in the cases of JD, WN, and ES, finding that there were strongly arguable errors of law by the UT and that the consequences of removal or dismissal would be severe or drastic for the appellants.

The Court REFUSED permission to appeal in the case of MR, concluding that no error of law was shown in the UT's decision and that the submission regarding remission versus re-making was not well founded.

The ruling clarifies the application of the second-tier appeals test in cases where appellants have succeeded before the FTT but lost in the UT or where the UT has re-made decisions after setting aside FTT decisions. It confirms that such circumstances do not automatically constitute a compelling reason for appeal but are relevant factors to be weighed in the Court's discretion.

No new precedent was established beyond the principles articulated regarding the flexible application of the second-tier appeals test and the appropriateness of the UT's discretion to re-make decisions.