It is a dark day for asylum seekers and their ability to obtain lawful adjudications on their appeals on Refugee Convention grounds. Alive to the 77% increase in applications for permission to appeal in immigration cases since 2005, the majority of which were from reconsiderations by ordinary Immigration Judges that raised no point of general importance, the Court of Appeal in PR (Sri Lanka) & Ors v Secretary of State for the Home Department (Rev 2) [2011] EWCA Civ 988 (11 August 2011) has at last confronted the meaning of the "Second Appeals" test, which must be satisfied before permission to appeal to the Court of Appeal may be granted.
The Access to Justice Act 1999 introduced the provision (see also section 13(6) of the Tribunals, Courts and Enforcement Act 2007) that:
"no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that:
(a) the appeal would raise an important point of principle or practice; or
(b) there is some other compelling reason for the Court of Appeal to hear it."
This changed the traditional approach to accessing the Court of Appeal, which permits appeals where there was a real prospect of success or some other compelling reason for taking the case further, which in practice required the identification of a material error of law.
The Court notes that the Tribunals, Courts and Enforcement Act 2007 brought clear Parliamentary endorsement of the Second Appeals test in the context of its unification of the Tribunal system. Now High Court judges sit regularly in the Immigration and Appeals Chamber of the Upper Tribunal, and restraint has been urged by the higher courts in reviewing decisions of such tribunals within their specialist fields of law. All this indicated that the point of principle or practice should be not merely important, but one which calls for attention by the higher courts, specifically the Court of Appeal, rather than left to be determined within the specialist tribunal system.
The issues arising in asylum appeals are different to those that govern many cases. Thus Sir Richard Buxton, giving an Opinion on the application of section 13(6) of the Tribunals Courts and Enforcement Act to immigration appeals for the Joint Council for the Welfare of Immigrants, spoke for many when he wrote that "adjudication upon potential breaches of the United Kingdom's international obligations does really merit, indeed demands, the attention of a court of the stature of the Court of Appeal."
The Court of Appeal disagrees, concluding that 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. So, what is ruled out post PR? Certainly the Court does not accept that the question whether an established point of principle or practice has been properly applied in an individual case itself raises an important point of principle or practice. Thus it would not be a sensible use of judicial resources for judges to replicate the assessment of evidence in an individual case within the context of a Country Guidance determination or a Strasbourg Court authority. On the other hand, permissible challenges would include those identified in Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60: where the first decision was "perverse or otherwise plainly wrong": importantly, an example of being "plainly wrong" is where the decision is "inconsistent with authority of a higher court" (at least where such authority was referred to by the Applicant's legal team). Alternatively a procedural failure in the Upper Tribunal might make it "plainly unjust" to refuse a party a further appeal. The prospects of success must be very high, save for in the cases of procedural irregularity (see Uphill at [24]).
What of proceedings which are not truly a "second appeal", ie where the application to the Court of Appeal is against a redetermination of the merits in the Upper Tribunal (which has previously found the First Tier Tribunal decision on the case to be wrong in law), which has now reheard an appeal itself and so factual findings and risk assessment is being conducted de novo. There is a chink of light here, for in these cases "A slightly less demanding standard may be appropriate where there has been only one level of judicial consideration … there is room for some flexibility … in the overall evaluation of a 'compelling' reason" [53].
It will be appreciated that PR also, by implication, sets the bar high for judicial review of refusals of permission to appeal to the Upper Tribunal, given that as a matter of judicial policy, the Supreme Court in R(Cart) v Upper Tribunal [2011] 3 WLR 107 (a) considered that such challenges were theoretically permissible and (b) adopted the Second Appeals test as applicable to those cases.
Want to know more? HJT Training has a half day Conference scheduled for 28 September addressing aspects of the new judicial review jurisdiction in the Upper Tribunal from 17 October 2011: topics will include judicial review of the Upper Tribunal post-Cart, Age Assessment Transfers and Fresh Claims, and Funding and Procedure; and now we are adding to our agenda "The Second Appeals Test."