Where a claimant who had succeeded before the First-tier Tribunal but failed in the Upper Tribunal sought permission to appeal from the Upper Tribunal, not on the ground of an important point of principle or practice, but for some other compelling reason within section 13(6)(b) of the Tribunals, Courts and Enforcement Act 2007, the test to be applied was stringent but flexible, taking into account the particular circumstances of the case. The procedural history and extreme consequences for the claimant if he were refused permission to appeal were relevant factors to be taken into account by the court in deciding whether the threshold for a second-tier appeal had been reached.

The Court of Appeal so held, (1) giving permission to appeal to the claimants, JD (a Congolese national) and WN (a national of The Gambia), against decisions of the Upper Tribunal to allow the appeals of the Secretary of State for the Home Department against decisions of the First-tier Tribunal to allow the claimants’ appeals against the Secretary of State’s refusal to grant them asylum; (2) giving the claimant, ES (an Iranian national), permission to appeal against the decision of the Upper Tribunal to dismiss his appeal, having set aside the entire decision of the First-tier Tribunal to dismiss his appeal against the refusal of the Secretary of State to grant him asylum and, re-made the decision; and (3) refusing the claimant, MR (a Bangladeshi national), permission to appeal against the decision of the Upper Tribunal to allow the appeal of the Secretary of State against the decision of the First-tier Tribunal to allow his appeal against the refusal of the Secretary of State to grant him asylum. The Public Law Project intervened in the appeal.

Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 provides: “The Lord Chancellor may, as respects an application [for permission to appeal from any decision of the Upper Tribunal] and for which the relevant appellate court is the Court of Appeal…, by order make provision for permission … not to be granted on the application unless the Upper Tribunal or (as the case may be) the relevant appellate court considers— (a) that the proposed appeal would raise some important point of principle or practice, or (b) that there is some other compelling reason for the relevant appellate court to hear the appeal.” Article 2 of the Appeals from the Upper Tribunal to the Court of Appeal Order 2008 provides: “Permission to appeal to the Court of Appeal … shall not be granted unless the Upper Tribunal or, where the Upper Tribunal refuses permission, the relevant appellate court, considers that— (a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason for the relevant appellate court to hear the appeal.

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

SULLIVAN LJ, giving the judgment of the court, said that the right of appeal from the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) to the Court of Appeal was subject to the “second-tier appeals” test set out in section 13(6) of the 2007Act and article 2 of the 2008 Order. In PR (Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 73 the Court of Appeal had explained how that test was to be applied to appeals from the UT. In each of the three cases there considered the claimant had failed before both the First-tier Tribunal (“FTT”) and the UT. In the PR case 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 second-tier test to be applied where the claimant had succeeded before the FTT but failed in the UT following a successful appeal by the Secretary of State? How was the test to be applied where the FTT’s adverse decision had been set aside because it contained a material error of law, but the UT had re-made the decision and dismissed the appeal? Their Lordships accepted the importance of Lord Dyson JSC’s warning that care was to be exercised in giving examples of what might be “some other compelling reason” because it depended on the particular circumstances of the case, nor should undue emphasis be laid on the need for the consequences of an adverse decision to the claimant to be truly drastic: see R (Cart) v Upper Tribunal (Public Law Project intervening) [2011] 3 WLR 107, para 131. However the examples given made it clear that the very adverse consequences for a claimant (or, per Baroness Hale of Richmond JSC, “the extremity of consequences for the individual”: para 57) were capable, in combination with a strong argument that there had been an error of law, of amounting to “some other compelling reason.” While the test was a stringent one it was sufficiently flexible to take account of the particular circumstances of the case, which could include the fact that a claimant had succeeded before the FTT and failed before the UT, or the fact that the FTT’s adverse decision had been set aside, and the decision had been re-made by the UT. Where they applied, those circumstances did not, of themselves, amount to “some other compelling reason”, but they were capable of being a relevant factor when the court was considering whether there was such a reason. Their Lordships rejected the submission for the claimants and the intervener that para 36 of the judgment in the PR case, which stated that extreme consequences for the individual did not constitute a free-standing test and that the word “compelling” in the second-tier appeals test meaning “legally compelling”, was inconsistent with Cart’s case. In the PR case the court was emphasising the fact that, absent a strongly arguable error of law on the part of the UT, 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 had to be, would depend upon the particular circumstances of the individual case, including the extremity of the consequences of the UT’s allegedly erroneous decision for the individual seeking permission to appeal. Although the court had accepted in the PR case, at para 53, that a slightly less demanding standard might be appropriate where there had only been one level of judicial consideration, the fact that the UT had set aside the FTT’s decision and re-made the decision was not a compelling reason to grant permission to appeal provided the challenge to the UT’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. If the court were bound to have regard to the particular circumstances of the case, the reason why the FTT’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. If it had re-made the decision the UT would always have set aside the FTT’s decision on the basis of an error of law (see section 12(2) of the 2007 Act) but errors of law were many and various. The extent to which it was possible to preserve the FTT’s findings of fact would be relevant. If the FTT had rejected the clamant’s case but failed to give adequate reasons for reaching a particular conclusion adverse to the claimant, and on re-making the decision the UT had reached the same conclusion, there was no reason for applying a less demanding standard. There would in substance have been two levels of judicial consideration and the claimant would have failed twice in the tribunal system. In other cases the UT might have reversed the FTT’s decision on the basis of a wholly new legal point which had not been argued before the FTT, in respect of which there would only have been one level of judicial consideration. Those were illustrations of the flexibility inherent in the second limb of the second-tier appeals test. Where an asylum seeker had failed twice in the tribunal system because the UT had either agreed with the FTT on appeal, or had refused permission to appeal against the FTT’s decision on the basis that it contained no arguable error of law, it was likely to be more difficult to persuade the Court of Appeal on an application for permission to appeal, or the Administrative Court on an application for permission to proceed with a claim for judicial review, that the legal basis for challenging the UT’s decision was sufficiently strong and the consequences for the claimant were so extreme as to amount to a compelling reason for giving permission to appeal, or to proceed, respectively.