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

These are three renewed applications for permission to appeal against decisions of the Upper Tribunal Immigration and Asylum Chamber (“UTIAC”). They have all been identified as possible test cases on 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. Under that test “realistic prospects of success” are not enough. Permission to appeal may only be given if there is an important point of principle or practice or “other compelling reason” for the Court of Appeal to hear the case.

It is necessary to consider the test against the background of the corresponding criteria first applied to second-appeals from the courts by the Access to Justice Act 1999, and the subsequent case-law culminating in the recent Supreme Court judgments in the linked cases of R(Cart) v Upper Tribunal [2011] 3 WLR 107, [2011] UKSC 28, and (in relation to Scotland) Eba v Advocate General for Scotland [2011] 3 WLR 149, [2011] UKSC 29.

The Access to Justice Act 1999 introduced important changes to the procedure governing appeals to the Court of Appeal. Section 54 dealt with permission to appeal in general, providing statutory authority for a requirement for permission to appeal to be introduced by rules of court. Section 55 contained a specific test for “Second Appeals” in the Court of Appeal, under which, where a decision on an appeal has been made in the county court or High Court–

“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 stricter test is to be contrasted with the normal test for appeals to any court, introduced under section 54 by CPR Part 52.3(6):

“(6)

Permission to appeal may be given only where—

(a)

the court considers that the appeal would have a real prospect of success; or

(b)

there is some other compelling reason why the appeal should be heard.”

As Brooke LJ explained in Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311, the reasons for the change of appellate policy could be found in the 1997 Bowman Review of the Business of the Court of Appeal (Civil Division). This proposed that where there had been one appeal in a civil case “this should normally be the end of the matter”, unless there were “special circumstances”. This principle reflected “the need for certainty, reasonable expense and proportionality”; and the consideration that “judges of the quality of Lords Justices of Appeal were a scarce and valuable resource”, which should be “used effectively and only on work which was appropriate to them”. Brooke LJ added:

45 It is clear that in the Access to Justice Act 1999 Parliament not only accepted the report's analysis of the problems confronting the Court of Appeal but that it also adopted even tougher measures than those recommended by the review to ensure that second appeals would in future become a rarity and that the judges of this court would be freed to devote more of their time and energy in hearing first appeals in more substantive matters which either their court or a lower court had assessed as having a realistic prospect of success….”

It appears from Hansard that the word “compelling” (rather than “special”, as proposed by the Bowman review) was adopted on the suggestion of Lord Woolf, after consultation with the Court of Appeal judges. The proposed formulation would, he said, enable the court to exercise its function –

“... of first of all dealing with important points of principle and practice and also acting as a safety valve so as to ensure that no compelling injustice... was done.” (Hansard HL 28 January 1999 col 1242)

Authoritative guidance on the operation of the second appeals test under the 1999 Act was given by Dyson LJ (with Tuckey LJ) in Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60, approved by the then Master of the Rolls (Lord Phillips) and Vice-President (Brooke LJ), but “not intended to be exhaustive”. Of the first limb (“important point of principle or practice"), he distinguished between (a) establishing a principle or practice and (b) applying it correctly; only the former would justify a second appeal (para 18).

Of the second limb (“compelling reason”) he said:

“24 (1) A good starting point will almost always be a consideration of the prospects of success. It is unlikely that the court will find that there is a compelling reason to give permission for a second appeal unless it forms the view that the prospects of success are very high. That will usually be a necessary requirement, although as we shall explain, it may not be sufficient to justify the grant of permission to appeal. This necessary condition will be satisfied where it is clear that the judge on the first appeal made a decision which is perverse or otherwise plainly wrong. It may be clear that the decision is wrong because it is inconsistent with authority of a higher court which demonstrates that the decision was plainly wrong. Subject to what we say at (3) below, anything less than very good prospects of success on an appeal will rarely suffice. In view of the exceptional nature of the jurisdiction conferred by CPR r 52.13(2), it is important not to assimilate the criteria for giving permission for a first appeal with those which apply in relation to second appeals.

“(2)

Although the necessary condition which we have mentioned at (1) is satisfied, the fact that the prospects of success are very high will not necessarily be sufficient to provide a compelling reason for giving permission to appeal. An examination of all the circumstances of the case may lead the court to conclude that, despite the existence of very good prospects of success, there is no compelling reason for giving permission to appeal. For example, if it is the appellant's fault that the first appeal was dismissed, because he failed to refer to the authority of a higher court which demonstrates that the decision on the first appeal was wrong, the court may conclude that justice does not require this court to give the appellant the opportunity to have a second appeal. There is a reason for giving permission to appeal, but it is not compelling, because the appellant contributed to the court's mistake. On the other hand, if the authority of a higher court which shows that the decision on the first appeal was wrong post-dated that decision, then there might well be a compelling reason for giving permission for a second appeal.

(3)

There may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not very high. The court may be satisfied that there are good grounds for believing that the hearing was tainted by some procedural irregularity so as to render the first appeal unfair. Suppose, for example, that the judge did not allow the appellant to present his or her case. In such a situation, the court might conclude that there was a compelling reason to give permission for a second appeal, even though the appellant had no more than a real, as opposed to fanciful, prospect of success. It would be plainly unjust to deny an appellant a second appeal in such a case, since to do so might, in effect, deny him a right of appeal altogether.” (emphasis added)

In Cramp v Hastings BC [2005] 4 All ER 10, a housing case where the first appeal had been from a local authority to the County Court, Brooke LJ accepted that some flexibility might be needed in applying the Uphill guidance “depending on the provenance of the proposed appeal” (para 65).

It is to be noted that the same test was applied to appeals in family proceedings court. Thus in Re B (A Child) (Residence: Second Appeal) [2009] 2 FLR 632, the Court (Wall and Elias LJJ) held (applying Tanfern,but apparently without being referred to Uphill) that the mere fact that the decision of the High Court was “arguably plainly wrong” did not give rise to a compelling reason to hear the appeal, in the absence of an important point of principle or practice ([10]-[11]). They left open (because not argued) the question whether the fact that a decision related to the welfare or future upbringing of a child might itself give rise to a compelling reason [14].

In a separate line of authority, this court had been required to consider the appropriate criteria for the grant of permission to challenge by judicial review decisions of the inferior courts and tribunals. The two most significant cases were R(Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738, [2003] 1 WLR 475, and R(Sinclair Gardens Investments (Kensington) Ltd) v Lands Tribunal [2005] EWCA Civ 1305, [2006] 3 All ER. In the former it was held that decisions of the county court were subject to judicial review only in “exceptional” cases, such as “procedural irregularity of such a kind as to constitute a denial of the applicant’s right to a fair hearing” (para 56). In the latter, the same approach was extended to decisions of the Lands Tribunal. In both it was acknowledged that a less restrictive approach was applied in asylum cases, because of the “fundamental human rights”, involved in most such cases (per Neuberger LJ, Sinclair Gardens para 48). As will be seen, in Cart the Supreme Court held that, in relation to decisions of the Upper Tribunal, “the Sinclair Gardens approach” should no longer be followed.

Uphill was the leading authority on the second-appeal test at the time that Parliament enacted the Tribunals, Courts and Enforcement Act 2007 (“TCEA”), Part I of which provided the statutory framework for the new two-tier tribunal system. It generally followed the recommendations of the review by Sir Andrew Leggatt. As Lord Phillips commented:

“What must, I believe, be beyond doubt is that it was Parliament's intention that the two tier structure set up by the TCEA would provide a statutory right of appeal in relation to decisions of tribunals that would, in most cases, provide a satisfactory alternative to judicial review.” (Cart para 86)

Section 13 provided a right of appeal from the Upper Tribunal, on a point of law only and subject to permission to appeal, to the “relevant appellate court” (in the present cases the Court of Appeal). Power was given to the Lord Chancellor by order to restrict the grant of permission (s 13(6)). An order to that effect was made so as to come into operation on the day that the new tribunal system was established on 3 November 2008 (Appeals from the Upper Tribunal to the Court of Appeal Order SI.2008/2834), which provided:

“2.

Permission to appeal to the Court of Appeal in England and Wales or leave to appeal to the Court of Appeal in Northern Ireland 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.”

It is clear, and not in dispute, that the intention was to apply the same test for appeals from the Upper Tribunal as applied to second appeals from other courts. It is to be noted that the scope of TCEA section 13(6) is limited by section 13(7) to appeals from decisions of the Upper Tribunal on appeals under TCEA section 11. It seems therefore (although not apparent from the terms of the 2008 Order itself) that the more restrictive test does not apply where the Upper Tribunal is acting as a first instance tribunal (see the examples given by Lady Hale in Cart para 24), or apparently where the appeal comes to the Upper Tribunal by a different statutory route (see JacobsTribunal Practice and Procedure 2^nd Ed para 4.220). The applications before us all relate to decisions on appeals under section 11, even though in one (PR(Sri Lanka), the decision directly under challenge followed a de novo rehearing by the Upper Tribunal (see para 53 below).

The TCEA as enacted did not provide for asylum and immigration cases to be brought within the scope of the new appeal provisions at that stage. They remained with the single-tier Asylum and Immigration Tribunal. During the second half of 2008 the government issued a consultation paper (Fair Decisions; Faster Justice) on proposals to bring immigration appeals into the new system. Commenting on this paper, Lord Phillips said (Cart para 86):

“... it was stated at para 23 that the Government had been advised that ‘except in the most exceptional circumstances’ decisions of the Upper Tribunal would not be subject to judicial review. What must, I believe, be beyond doubt is that it was Parliament's intention that the two tier structure set up by the TCEA would provide a statutory right of appeal in relation to decisions of tribunals that would, in most cases, provide a satisfactory alternative to judicial review.”

In a response to the consultation, the then Master of the Rolls (Sir Anthony Clarke) commented that since 2005 the Court of Appeal had seen a 77% increase in applications for permission to appeal from AIT cases, the majority of which were from reconsiderations by ordinary Immigration Judges that raised no point of general importance. He said:

“The influx of these cases has put significant pressure on the resources of the Court of Appeal both in terms of the numbers office staff and lawyers who must prepare the cases for the Court and perhaps more importantly, in terms of judicial time; it is wholly disproportionate for these cases to be considered by the most senior judges who sit in the Court of Appeal.”

In 2009 provisions for the transfer of immigration appeals to the new two-tier system were included in the Borders and Immigration Bill. In the House of Lords an amendment to exclude such appeals from the scope of section 13(6) was moved by Lord Lester of Herne Hill, with the support of a number of distinguished lawyers in the House (Hansard 1^st April 2009 col 1121-2). He referred to an opinion of Sir Richard Buxton (the former Lord Justice) for the Joint Council of the Welfare of Immigrants, in support of the view that -

“... in a case where there is a real prospect that the decision of the Upper Tribunal is in breach of the UK’s international human rights obligations, that issue demands the attention of the stature of the Court of Appeal.”

In resisting the amendment for the Government, Lord West (Col 1130) referred to the need to respond to pressures on the Court of Appeal identified in the Master of the Rolls’ response to consultation on the pressures of such appeals on the resources of the Court of Appeal, but added:

“I accept that there may be some cases which raise the real prospect that the decision of the Upper Tribunal is in breach of the UK’s human rights obligations, but these are precisely the sort of cases that would meet the test set out in Section 13(6).”

A statement to identical effect was made by the Minister Mr Woolas in the House of Commons in resisting a similar amendment (Hansard HC Committee 6th sitting 16 June 2009 Col 182). At report stage (HC Debates 14 July 2009 col 210) he put the matter slightly differently:

“The Master of the Rolls supports this more restrictive test... We are clear that the test would not stop cases that raise important issues concerning human rights or asylum being granted permission to appeal to the Court of Appeal. That is a critical point...”

He added that the Government thought it preferable to have a single test for hearing of appeals by the Court of Appeal. The amendment was defeated.

Earlier in 2009 Mr Cart had sought judicial review of a decision of the Upper Tribunal (Administrative Appeals Chamber) to refuse permission to appeal on one ground in a child support case. In December 2009, the Divisional Court dismissed the claim, holding that judicial review was only available in exceptional circumstances.

On 15 February 2010, pursuant to the proposals in the consultation paper, the single-tier Asylum and Immigration Tribunal (AIT) was abolished and its functions transferred to new Immigration and Asylum Chambers in the First-Tier Tribunal and Upper Tribunal, the latter presided over by a High Court judge (Blake J). One effect was that the internal “reconsideration” procedures which applied in the AIT, combined with a right of renewal in the High Court, were replaced by a more conventional right of appeal on points of law, with permission, to the Upper Tribunal. Another was that High Court judges began to sit regularly, alongside Senior Immigration Judges, in immigration and asylum cases in the Upper Tribunal. At the same time (subject to the transitional considerations discussed in FA (Iraq) v SSHD; PD (India) v SSHD [2010] EWCA Civ 827), this jurisdiction became subject to the same “second-tier appeals test” as was already in operation in respect of other parts of the Upper Tribunal.

In May 2010 an asylum applicant, MR, applied for judicial review of a decision of Ouseley J, sitting in the Upper Tribunal, to refuse permission to appeal from a first-tier decision. Permission to apply for judicial review was granted, but the substantive application was dismissed by Sullivan LJ in December 2010 ([2010] EWHC 3558 (Admin)). In doing so he followed the decision of the Court of Appeal on the appeal in Cart itself, which had been dismissed in July 2010. He gave permission for the appeal to go direct to the Supreme Court so that it could be heard at the same time as the appeal in Cart.

Meanwhile, in March 2010, in R(Wiles) v Social Security Commissioners [2010] EWCA Civ 258, the Court of Appeal had occasion to consider an application for judicial review of a decision of the former Social Security Commissioners, made before they became part of the Upper Tribunal, and therefore before the second-tier appeals test became directly applicable. This case is significant because it paved the way to the solution later adopted by the Supreme Court in Cart. The court felt constrained by authority to hold that such cases must be decided by “conventional” judicial review tests. It rejected the Secretary of State’s submission that they should be confined to “exceptional circumstances”, by analogy with the approach taken in respect of judicial review of the county court in cases such as Sivasubramaniam. Dyson LJ found a closer analogy to the case before him in the more open practice applied to applications for judicial review of the former immigration appeal tribunal:

“46... I accept the submission of Mr Drabble that the nature and functions of the social security commissioners are closer to those of the IAT than to either the county court or the Lands Tribunal. They are an administrative tribunal, frequently called upon to adjudicate on significant legal issues which have far-reaching consequences well beyond the individual case, including important issues of human rights and EU law. I accept that issues such as the right to life and the right not to be tortured are unlikely to arise in a social security case. But a social security case may well involve the right of a claimant to subsistence income and so directly affect their access to the most fundamental necessities of life.

47.

It seems to me that there is much to be said for opening the door somewhat wider than Mr Eadie would allow to reflect the fact that (i) issues that arise in social security cases may affect the lives not only of the individual claimant, but of many others who are in the same position, some of whom are among the most vulnerable members of our society; and (ii) the issues may be of fundamental importance to them, sometimes making the difference between a reasonable life and a life of destitution.”

For this reason, if unconstrained by authority, he would have found “much to be said” for the application of criteria equivalent to the 1999 Act second-appeals test.

These three cases, considered together by the Supreme Court provided an opportunity for authoritative guidance as to both the susceptibility to judicial review of decisions of the Upper Tribunal, and the standard to be applied. Eba was an appeal from the Court of Sessions. The cases thus provided an opportunity to develop a common approach to review of the Upper Tribunal throughout the United Kingdom. The leading judgments in Cart were given by Lady Hale and Lord Dyson, and in Eba by Lord Hope, each of whom carried the support of the whole court. All three judgments therefore can be relied on as complementary and mutually supportive.

The following are the main points which emerge from the judgments:

The legal arguments in this court turned principally on the scope of the “compelling reasons” part of the test. On behalf of the three appellants, submissions on the principles were made by Mr Fordham QC.

He accepted that the starting point must be “a properly arguable material error of law”. However, the second limb of the test recognised that an appeal which involves no “important point of principle or practice” could be one which the Court of Appeal should hear, because of implications other than developing principle or practice. A “paradigm” example must be a case which is “compelling” as to its implications for the individual, for the State, and for the Court. Such, he submitted is an asylum removal case:

Mr Fordham relied on the statements to Government Ministers in the 2010 debates, indicating that such cases would be embraced within the second-tier appeals test. These, he said, should be taken into account by the court under the principle that -

“categorical assurance given by the government in debates as to the meaning of the legislation... may preclude the government vis-à-vis an individual from contending to the contrary” (per Lord Steyn, McDonnell v Congregation of Christian Brothers Trustees [2004] 1 AC 1101, para 29).

Although his skeleton argument was directed principally to the special considerations raised by asylum cases, his oral submissions cast the net somewhat wider. As I understood his submissions, he would include properly arguable cases relating not only to breaches of “absolute” obligations under the Human Rights Convention, such as in respect of threats to life or of torture (articles 2 and 3), but also to “flagrant” breaches of other rights under the Convention (see R(Ullah) v Special Adjudicator [2004] 2 AC 323); and also to decisions in other areas of the law, such as noted by Dyson LJ in Wiles,which might make “the difference between a reasonable life and a life of destitution”.

In reply, Mr Hall for the Secretary of State argued that Mr Fordham’s submissions were inconsistent with the ratio of Cart that the availability of challenges to decisions of the unified Tribunal structure does not depend on the subject matter under appeal. In relation to asylum appeals, the Court specifically rejected arguments, advanced in the Divisional Court in MR, that a different approach was called for because such cases were “matters of life and death, torture or ill-treatment” involving “among the most vulnerable in society”, and where the UK “may be placed in breach of its international obligations under the ECHR and/or the Refugee Convention”. That approach was reflected in the order made in MR,itself an asylum removal case. Although permission had been granted to apply for judicial review of the UT’s refusal of leave, on the basis of the Deputy Judge’s finding of a realistically arguable case in law, the Supreme Court did not regard the asylum context as sufficient to bring it within the second-tier appeals test (see per Lady Hale, para 59).

In his submission, Ministerial statements made in 2010 could not be relied on as an aid to interpretation either of a section enacted in 2007, or of an order made in 2008. They were neither an indication of Parliamentary intention when the relevant legislation was passed nor part of the background to the legislation to which the court might have regard under the principles explained by Lord Nicholls in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, para 56-60). Nor could they be brought within Lord Steyn’s “estoppel” principle in McDonnell. The operation of the second-tier appeals test was a matter for the Courts, not Ministers. Even if the Secretary of State were estopped from arguing a particular interpretation of second-tier appeals test, it would still be necessary for the Court to determine the issue for itself.

Further, he said, the appellants’ argument based on potential breach of international obligations was fallacious. There is no international law obligation to provide a second appeal (see eg per Lord Hoffmann, RB (Algeria) v Secretary of State [2010] 2 AC 110 para 190). Once a court or tribunal of competent jurisdiction has finally determined that there is no such breach, the government is entitled to proceed on that basis.

Accordingly, he submitted, the Court should approach an application for permission to appeal from the Upper Tribunal in an asylum or immigration matter with the same general considerations in mind as explained in Uphill in relation to second appeals generally. As to the “compelling reasons” test, the following considerations indicated in Uphill were relevant, but non-exhaustive:

Other potentially relevant factors included: whether the applicant had failed at both levels, or whether the first appeal reversed the original decision; whether the grounds before the Court of Appeal were themselves considered by the Upper Tribunal; more generally, whether the case was such as to require, notwithstanding the expertise of the First Tier and Upper Tribunals, the attention of the Court of Appeal.

Mr Fordham is right in our view to acknowledge that the issues are ones primarily of judicial policy. The historical survey shows the extent to which developments in this field have stemmed from judicial thinking, and Parliament’s response to it, rather than from government initiatives. The introduction of the second-appeals test in 1999, following a Court of Appeal review, was designed to ensure best use of the limited judicial resources of that court. The emphasis was to be on important points of law or principle. The alternative “compelling reasons” test, the wording proposed by senior judges, was to be an “exceptional” remedy, a “safety valve”. The required value-judgement was entrusted to the court.

It is to be noted also that it is for the Court of Appeal ultimately to decide whether a matter is sufficiently compelling to justify its attention. If permission is refused, that will be the end of the matter; there is no further right of appeal to the Supreme Court. Conversely, if permission is granted, attention will turn to the merits of the appeal. The question whether permission was rightly granted becomes academic, both in this court and in any onward appeal. It follows that views expressed on this issue by the Supreme Court, though highly persuasive, cannot be determinative.

Judicial guidance in the leading case of Uphill emphasised the narrowness of the exception. The prospects of success should normally be “very high”, or (as it was put in Cart para 131) the case should be one which “cries out” for consideration by the court. The exception might apply where the first decision was “perverse or otherwise plainly wrong”, for example because inconsistent with authority of a higher court. Alternatively a procedural failure in the Upper Tribunal might make it “plainly unjust” to refuse a party a further appeal, since that might, in effect, “deny him a right of appeal altogether”. In Cart Lord Dyson, following Laws LJ, characterised such a case as involving “a wholly exceptional collapse of fair procedure” (para 131). Similarly, Lord Hope in Eba referred to cases where it was “clear that the decision was perverse or plainly wrong” or where, “due to some procedural irregularity, the petitioner had not had a fair hearing at all”.

It is true that Lady Hale and Lord Dyson in Cart 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.

The 2007 Act took the process a stage further, following the recommendations of another Court of Appeal judge, Sir Andrew Leggatt. The Upper Tribunal was established as an expert appellate forum for most tribunal appeals. Senior judges had already urged restraint by the higher courts in reviewing decisions of such tribunals within their specialist fields of law. That approach gained implicit Parliamentary endorsement in the adoption by the TCEA of the second-tier appeals test (see per Lady Hale, Cart para 52). The test is the same as under the 1999 Act, but the new context is relevant. 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.

Another important feature of the TCEA was provision for involvement of the court judiciary in the tribunal system (see per Lady Hale, Cart para 22). Leadership was entrusted to the Senior President of Tribunals, currently a Court of Appeal judge, appointed with the concurrence of the three chief justices. Judges of courts up to and including the Court of Appeal (or their equivalents in Scotland and Northern Ireland) are ex officio members of the Upper and First-tier tribunals, available to sit by request of the Senior President with the agreement of the relevant chief justice. Three of the four Upper Tribunal Chamber Presidents are High Court judges. As already noted, High Court judges sit regularly in the Immigration and Appeals Chamber of the Upper Tribunal, as do judges of equivalent status from Scotland and Northern Ireland. Some Lord Justices of Appeal have also sat. In this way senior court judges have been able to contribute to the quality of the Upper Tribunal by direct involvement, rather than simply by the corrective mechanism of appeal.

Parliament has thus provided a statutory framework within which the Senior President and Chamber President should be able to ensure that the gateway to appeals to that level is controlled by judges of appropriate status and experience. It has been content to leave the practical operation of this system to the Senior President of Tribunals, working with the chief justices, but subject to the former’s overriding obligation (under TCEA s 2) to pay due regard to the defining characteristics of the tribunal system, including specialist expertise. Judicial policy and practice in this respect are still developing. As Lord Phillips said (Cart 92), the criteria for onward appeals should be informed by “experience of how the new tribunal system is working in practice”.

We agree with Mr Hall in rejecting arguments based on the risk of breach of international obligations. We do so with respect, having regard to the weight given to this aspect in the speeches of Lord Lester and others, with the support of Sir Richard Buxton, in the 2010 Parliamentary debate. However, the debate preceded the final decision in Cart. There was no express or implicit support for such arguments in the judgments of the Supreme Court. Although the “drastic consequences” of some tribunal decisions were regarded as potentially relevant, there was no indication that this turned on their implications under international law. As Mr Hall pointed out, international law recognises no right to a second appeal.

Mr Hall’s submission is reinforced by the disconnection between Mr Fordham’s starting point and his submitted conclusion. For these purposes, his starting point is that, in many asylum cases, the person seeking asylum asserts a well-founded fear that his Article 2 or Article 3 (or perhaps Article 5, 6 or 8) rights will be violated if he is removed from the United Kingdom. Certainly, if his fear is well-founded, the consequences could be drastic, if he is removed. But the proceedings in the First and Upper Tiers of the Tribunal (from which permission for a second appeal is sought) have established by proper judicial process, put in place by Parliament, that his fear is not well-founded. The question is not, therefore, whether the nature of the asserted claim would, if its factual basis were established, risk drastic consequences, but whether there is a compelling reason why the issue on which the claimant has failed twice should be subjected to a third judicial process. The two tiers of the Tribunal system are, and are plainly to be regarded as, competent to determine matters of this kind, and there is no case for saying that the United Kingdom would be in breach if its international obligations, if the decisions of the Upper Tribunal are only amenable to appeal in very restricted circumstances. 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.

We also agree with Mr Hall that statements by Ministers in the course of the 2010 debates cannot be relied on, either (under Pepper v Hart principles) as an aid to interpretation of the 2007 Act (or the 2008 Order); or under Lord Steyn’s “estoppel” formulation. It is noteworthy that Lord Steyn’s remarks in McDonnell were not adopted by any of his colleagues. In any event, Parliament has entrusted specifically to the court the judgment as to what meets the standard for a second appeal. It would be wrong in principle for judges to regard themselves as constrained by points made in Ministerial statements, beyond whatever merits they may be found to have in arguments before the court.

The practical application of these principles can best be illustrated by references to the three cases before the court, to which we now turn. For this purpose, we shall consider them in rather more detail than might normally be expected on a permission application.

This case is one of a very large number which have come before the tribunals and the courts arising out of the civil war in Sri Lanka, now at an end. Many claims to asylum have been made by Tamils, with links to the LTTE organisation, claiming to be faced with the risk of torture or death at the hands of the Sri Lankan authorities. Guidance has been given by the former AIT in two important “Country Guidance” cases LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076, and TK(Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049. In the latter, the Senior President presided, sitting with two of the most experienced Senior Immigration Judges, Judge Ockelton and Judge Storey. In that respect the case may be seen as underlining the potential, afforded by the TCEA, for combining the general experience of the senior court judges, with the specialist skills and knowledge of the senior tribunal judiciary.

The judgment also illustrates the difficulties, even with that specialist knowledge, of extracting a coherent picture from often confusing and incomplete evidence, against a background of rapidly changing circumstances. There was the further complication that, in parallel with the tribunal’s work, similar cases were under consideration by the European Court of Human Rights, leading to the decision in NA v UK (2009) 48 EHRR 15. While the Strasbourg court had generally endorsed the approach of the tribunal in LP, including its use of so-called “risk-factors” (see TK para 5-6), there were at least arguably some differences of emphasis in the factual conclusions drawn from them.

We mention these points, not as directly relevant to the present appeal, but as supporting points made in the preceding discussion of principle. They include the importance of specialist experience in evaluating the evidence in individual cases, within the framework of the available Country Guidance or ECHR authorities, and of other objective material. Except where it is clear that something has gone seriously wrong (as in the examples in Uphill), it not a sensible use of judicial resources for court judges, even at the level of the Administrative Court or the Court of Appeal, to seek to replicate that task.

PR had been detained and tortured in Sri Lanka for supporting the LTTE Army. On 1 February 2010 he claimed asylum and international protection in the United Kingdom. He claimed that he had left Sri Lanka on 11 January 2010, travelled to India by boat and then to an Arab country before entering Europe and the UK. He said that he was a member of the LTTE from 1996 to 2009, that he had been tortured by the army to get him to identify other members of the LTTE, and detained at a camp called Menik Farm. He had been forced to sign a written confession. There was medical evidence of injuries consistent with his account of having been whipped, and hung upside-down by his ankles.

His appeal to the First-Tier Tribunal was dismissed 21 May 2010. In the Upper Tribunal, Designated Immigration Judge Wilson granted permission to appeal, and decided to reconsider the application himself (as permitted by TCEA s 12(2)). In his decision dated 30 September 2010, he held that the FTT had erred in law in relation to the medical evidence. The FTT Judge had failed to consider the medical report “as part of her primary focus in assessing credibility”, and had taken into account the possibility that his injuries were self-inflicted without making a finding to that effect on the balance of probabilities (para 8-9).

DIJ Wilson was referred to, and took account of, the country guidance in TK CG, but noted the lack of “further and recent objective information”(paras 25-6). Having himself heard the evidence of the applicant, he accepted his account of being tortured; he found a little more difficulty with, but did not reject, his account of his release, apparently as a result of a bribe by a wealthy relation, with whom he was no longer in contact (para 17, 34). He concluded that he would not have been so released unless “the authorities were convinced he was of no interest” (para 37, 41). He was one of “a large number of Tamils involved at the very low level”, as compared to those engaged at a high level or in fund-raising whom the government was interested in tracking down. He dismissed the appeal.

PR’s application for permission to appeal to this Court was dismissed by SIJ Ward on 6 December 2010, and Stanley Burnton LJ on the papers on 25 January 2011. He found no point of importance and no other compelling reason. As to the merits, the judge had been entitled to view the confession in the light of the fact “that the LTTE are no longer effective and many admitted low level members have been released...” On 11 April 2011, the Master of the Rolls directed an oral hearing. Having been persuaded that the grounds would have been sufficient for a first appeal, he saw -

“... room for consideration as to the approach to be taken by this court on second appeals in asylum cases, particularly those where it is said to be a risk of torture or another serious infringement of Human Rights.”

In this court, apart from the general merits of his case, Mr Mackenzie makes two additional points:

The second point, whatever its precise effect, would only be relevant if there was some indication in the decision that a different approach to burden of proof might have produced a different result. We can find none.

As to the first, Mr Mackenzie does not dispute that the second-tier appeals test applies in principle, even though DIJ Wilson was reconsidering the matter as a first-instance judge. Where the Upper Tribunal finds an error of law in the First-tier decision, TCEA section 12 gives it the option of either remitting the case to the First-tier, or deciding the matter itself, if necessary hearing evidence for that purpose. The second-tier appeals test applies equally to both cases. We accept, however, that both Uphill and Cart 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 Cramp,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.

On the merits, Mr Mackenzie submits that DIJ Wilson failed to apply, or misapplied, the guidance in LP and TK. His conclusion rested on the assumption that PR’s release was an indication of the authorities’ lack of interest in him, and that the records would reflect that fact. However, the likely contents of the authorities’ records would be dictated by what PR had confessed to. On similar facts in MP (Sri Lanka) v SSHD [2011] EWCA Civ 362, the court had held that there was at least a risk that the records would indicate a higher level of membership. All the relevant guidance treated the existence of a signed confession as a significant risk factor. Further, there was nothing in the country guidance to support the view that escape by bribery was incompatible with ongoing interest. Nor does TK support the judge’s assumption that only high-level LTTE members would be of interest to the authorities.

In our view, none of these points amounts to a “compelling reason” for permitting a further appeal, in accordance with the principles discussed above, even allowing for the fact that it would not be a second appeal in the ordinary sense. That process shows the two-tier system working as it was intended. The appeal to the Upper Tribunal revealed an error in the First-tier’s reasoning which needed to be corrected. The TCEA enabled DIJ Wilson to reconsider the matter, and hear evidence for the purpose. He rightly had regard to the most up-to-date Country Guidance, but took account of the fact that it was by then almost a year old. It is a carefully reasoned decision. While it may be possible to criticise aspects of the reasoning, it cannot be said to be “perverse” or “plainly wrong”, nor is there any allegation of serious procedural irregularity. There is no other reason requiring further consideration by the courts. The claimed risks are, unhappily, in no way exceptional in this jurisdiction, and not in themselves such as require the attention of the Court of Appeal.

TC is a national of Zimbabwe, who entered the United Kingdom as a visitor on 31 May 2001, to join his then wife, PB. They had a son, J, who like PB is now a British national, resident in the United Kingdom. TC met his current partner, NM, in 2001. They have two children together, born in 2002 and 2010. They separated between 2002 and 2006, but were reunited thereafter. In 2005 (whilst in the UK) TC joined the MDC, never having previously been involved in politics, but he later allowed his membership to lapse and has never renewed any interest in politics. On 8 September 2006 TC was convicted of robbery and imprisoned for eight years. Since his release the couple have lived together in the family home.

On 7 April 2009 TC made a claim for asylum, which was refused by letter dated 11 March 2010, and a decision was made on 31 March 2010 to issue a deportation notice. His appeal against those decisions was dismissed by the First-Tier Tribunal on 26 July 2010. His appeal with permission to the Upper Tribunal was dismissed on 27 January 2011 by SIJ McGeachy.

The application for permission to appeal to this court rests in summary on four grounds:

As Miss Fisher I think concedes, the last point adds nothing. The Secretary of State’s Certificate’s certificate under section 72 of the Nationality, Immigration and Asylum Act 2002 that the applicant did not qualify for asylum, raised a rebuttable presumption, which the First-tier tribunal was required to consider at the beginning of the hearing. They failed to do so. That was a technical error, but the SIJ rightly found that it was not material, because the Tribunal had gone on to consider the case on the merits (para 42).

Expanding the other points, she submitted:

In refusing permission to appeal to this court Sir Richard Buxton accepted that the third ground was realistically arguable, but not such as to justify a second appeal. He said:

“… Under the analysis at paras 230-231 of RN as a general rule a person returning as a failed asylum seeker will be subject to real risk of persecution, because he cannot demonstrate that he voted for Zanu-PF. The applicant will be returning as a failed asylum-seeker, and Ms M, although not technically such, will be associated with him, and also be a person who has been continuously out of the country for some ten years... SIJ McGeachy at his §45 discounts this guidance on the basis of the applicant’s lack of credibility, reading RN as holding that where an applicant is not credible it will be very difficult for him to show that he could not show loyalty to the regime. What para 246 of RN said was that a person who is not credible will not be accepted as unable to demonstrate loyalty to the regime just because he asserts that. That judgement cannot, however, apply to the situation addressed in paras 230-231 of RN, because the persecution envisaged in those paragraphs flows from the objective situation of the claimant, which cannot be changed by protestations on his part.”

However, applying the second-tier appeal test, he was unable to grant permission:

“First, the case does not establish an important point of principle. The law as set out in RN is well-established. The criticism of the judge is that he incorrectly applied that principle. On the authority of Dyson LJ (as he then was) in Uphill [2005] 3 All ER 264[18] that is not enough. Second, although it might be thought to be a compelling reason to grant permission that an error in this case may expose the applicant to persecution, and involve a breach of the UK’s international obligations, Parliament was well aware of those considerations when it created the power by section 13(6) of the Tribunals, Courts and Enquiries Act 2007. Indeed it was that factor that caused the original Bill to fail in the Lords after a recommendation by the Joint Committee on Human Rights, only for it to be reinstated in the Commons. Accordingly, to accept the arguments just set out as bringing a case under the second limb of the second appeals test would mean that the legislation had beaten the air.”

Although, as already explained, we would not respectfully endorse his comments on the implications of possible breach of the UK’s international relations, we agree with his conclusion that the case does not satisfy the second-tier appeals test. For similar reasons as in PR(Sri Lanka) we regard this as precisely the kind of argument, based on a detailed critique of the tribunal’s application of the country guidance, which the second-tier test was designed normally to exclude from further reconsideration in the Court of Appeal.

As to the other points, they are points of detail not principle. Overall, the SIJ placed weight on the interests of the children, but greater weight on the seriousness of the crime (para 53-4). Such points, even if realistically arguable, do not amount to “compelling” reasons justifying the exceptional course of a second appeal to the Court of Appeal.

SS is a citizen of Bangladesh, born on 7 June 1968. He is a Buddhist monk. He arrived in the United Kingdom (via Norway) on 30 October 2005 but did not claim asylum until 9 February 2010. SS claims that he was directly linked with a murder in Bangladesh for which, in 2007, he was found guilty in his absence and sentenced to 14 years’ imprisonment, although he was not in fact involved in the incident. He fears persecution for his religious beliefs if returned. His application for asylum was refused on 11 March 2010.

His appeal was heard by IJ Law and dismissed on 16 May 2010. He appeared in person, (although, as the judge noted, he had previously received legal advice), and he gave evidence through an interpreter, The judge accepted that he was a Buddhist monk who ran a monastery in his home area, and that he had been convicted in his absence. He also accepted that there was evidence, in the “country profile”, of discrimination by the Muslim majority against Buddhists, including “the killing of male Buddhists particularly those associated with monasteries...” But he found a number of inconsistencies in SS’ evidence. He noted, for example, that between the alleged rape of his sister and his reporting it, he had sought a visa to travel to Norway (“strange behaviour when one of his sisters had been attacked in the most savage of ways”) (para 31); and that, although the events relied on dated back to 2005, and the conviction occurred in 2007, there was no satisfactory explanation for his failure to apply for asylum until 2010 (para 28(c)). He concluded that his “overall claim has been totally undermined and his credibility severely affected by his actions” (para 32). His conviction for murder was not in itself persecutory “but the result of the prosecution in the upholding of law and order in Bangladesh” (para 33).

SS sought permission to appeal to the Upper Tribunal. His short, hand-written grounds argued simply that the tribunal “gave no deep attention” to the human rights issues, and that if returned he faced a “real risk” of suffering serious harm or torture. Permission to appeal was granted by SIJ Waumsley, not on the points raised by the applicant, but on the basis of what he perceived to be a defect in the reasoning. He found it difficult to reconcile the IJ’s acceptance of SS’ evidence that he had been convicted in his absence of murder, with his statement that the “overall claim” had been “totally undermined”. He added that the hearing could also consider “the issues (such as they are) raised in the appellant’s grounds.”

The appeal was heard by Designated Immigration Judge Harris, sitting as a Deputy Judge of the UTIAC, who dismissed the appeal. SS again appeared in person. From the summary of his submissions given by the judge (para 5), it seems that he did not rely specifically on the inconsistencies found by SIJ Waumsley, but sought to challenge Judge Law’s finding on the facts. DIJ Harris dismissed the appeal on 22 November 2010. In doing so, he dealt briefly with inconsistency point, by reference to the SIJ’s comments, saying:

“.... Whilst perhaps those paragraphs should have been expressed in slightly better terms, the findings of fact that the Judge made were ones that he was entitled to make on the evidence before him. Thereafter the Immigration Judge made clear and cogent reasons for his adverse credibility findings.”

Permission to appeal to this Court was initially sought from the Upper Tribunal, by means of a short letter signed by SS. He asserted simply that he had been convicted of a murder of which he was innocent. He also referred to the comments of SIJ Waumsley on the original decision. Permission was refused by SIJ Eshun.

The application was renewed in the Court of Appeal, this time supported by a 10-page skeleton argument, prepared by solicitors. It was argued that the decisions below had failed to resolve conflicts of fact on material matters, and failed to give adequate reasons. In particular, reference was made to Judge Law’s acceptance of the conviction for murder, and the evidence of widespread persecution of Buddhists in the country profile. Although the judge had pointed to inconsistencies in SS’ evidence, he had failed to make clear which aspects he accepted or rejected, or explain the impact of these findings on the risk of return.

The application was dismissed on the papers by Lord Justice Pitchford, but he invited the applicant to renew the application at an oral hearing. For the reasons identified by SIJ Waumsley, expanded in the appellant’s skeleton argument, he thought it arguable that in important particulars IJ Law’s determination was “obscure and contradictory”; that the determination failed to identify the reasoning which resulted in the dismissal of the appeal; and that IJ Harris had been wrong not to find an error of law. However, he was constrained by the second-tier appeal test -

“While I would have been prepared to find a real prospect of success, on a point of law, I am not able to conclude that an important point of principle or practice is raised by this appeal or that there is some other compelling reason for the Court of Appeal to hear the appeal (unless it be the possible consequences to the appellant of an arguably wrongful return to Bangladesh).”

He advised that the application should be reviewed at an oral hearing to test the issues of what amounts to an important point of principle or practice, or a compelling reason, in the context of asylum appeals from the Upper Tribunal.

In this court, the arguments in the skeleton have been repeated. It is submitted that the second-tier test is satisfied because there are strong arguments that the original decision was flawed, and the potential consequences for SS are “very drastic”.

We observe that this history well illustrates a frequent problem in such cases, where a case is initially presented by a claimant in person (in this case through an interpreter), but subsequently developed in much more detail at the appeal stage. It seems that it was not until the application for appeal to this court that a detailed skeleton argument was presented. Even then, there was nothing to indicate why it should be regarded as meeting the second-tier test. Although we agree with Pitchford LJ that some aspects of Judge Law’s reasoning are not easy to follow, this is in part a reflection of the presentation. He appears to have made a conscientious attempt to extract a coherent case from the somewhat confusing evidence before him. In any event, for the reasons explained in the other two cases, we are satisfied that there is no point of general principle, and no other compelling reason justifying an appeal to this court.

For these reasons, we would refuse permission to appeal in all three cases.