EH v The Secretary of State for the Home Department

On 15 January 2020, the First-tier Tribunal heard the appeal of the appellant , a citizen of Bangladesh, against the decision of the respondent to deport him to Bangladesh. On 19 December 2007, the appellant had killed his wife in the United Kingdom and on 1 December 2008 he was convicted of murder and sentenced to life imprisonment, with a recommendation that he serve a minimum of twelve years before release. The appellant made a protection claim, asserting that he would be at real risk of serious harm, if returned to Bangladesh, because his late wife’s family would kill him there. Second , he said that he had converted from Islam to Christianity and so would be at real risk of serious harm in Bangladesh as an apostate. Third, the appellant claimed that he was bisexual and wanted to live openly as such, but that he would be at real risk of serious harm , if he did so in Bangladesh. The respondent refused the appellant’s protection claim and the appellant exercised his right of appeal to the First-tier Tribunal.

On 4 February 2020, following a hearing the previous month, the First-tier Tribunal promulgated a decision, dismissing the appellant ’s appeal on asylum and human rights grounds. He sought permission to appeal on seven grounds. On 3 March 2020, the First-tier Tribunal refused permission to appeal. The appellant then renewed his application to the Upper Tribunal , on each of the seven grounds.

On 26 May 2020, Upper Tribunal Judge Sheridan made a decision as follows: “Application for permission to appeal is granted in respect of Grounds 4 and 7 only ” (original emphasis) .

CPR 54.7A(1) provides as follows:-

On 6 July 2020, the appellant applied for permission to judicially review UTJ Sheridan’s decision. Paragraph 1 of the Statement of Facts and Grounds that accompanied the application stated that UTJ Sheridan had “granted permission to appeal in respect of two grounds, grounds 4 and 7, and refused permission on all other grounds”. Under the heading “Relief sought” , however , the application stated that what was requested was “an order quashing the permission decision of UTJ Sheridan granting permission only on limited grounds”, together with “an order that permission to appeal to the Upper Tribunal be granted on the grounds which were refused by the Upper Tribunal”.

On 28 August 2020, the High Court granted permission to bring judicial review. In the High Court’s order, under the heading “Observations”, there is the following:-

On 15 February 2021, Master Gid d en, having noted that no request had been made under CPR 54.7A(9) for a substantive hearing, ordered that “the decision of the Upper Tribunal to refuse permission to appeal is quashed”.

On 25 February 2021, the Vice President of the Upper Tribunal Immigration and Asylum Chamber issued directions, as follows:-

On 24 March, Mr Symes appeared for the appellant. Mr Symes had not previously been involved in the appeal. He prepared a helpful skeleton argument, for which we are grateful. We heard oral submissions from Mr Symes and Mr Lindsay. Following the hearing, the parties were given the opportunity to file and serve further written submissions on the question of whether it is possible or necessary to bring a “Cart” judicial review challenge in the event of a partial or limited grant of permission by the Upper Tribunal. Mr Lindsay informed us that no such submission would be made by him . For the appellant, Mr Symes and Ms Nizami filed written submissions on 31 March 2021, which we have found helpful.

The first issue is to determine the effect of what happened in the High Court in the proceedings under CPR 54.7A. Until that is done, it is not possible to establish the current position in the se appeal proceedings. As we have seen, CPR 54.7A(1) states in terms that the rule applies “ following refusal by the Upper Tribunal of permission to appeal against the decision of the First-tier Tribunal”. It is plain that the High Court was aware of the fact that permission to appeal to the Tribunal had been granted by Upper Tribunal Judge Sheridan. Indeed, that fact was part of the court’s rationale for deciding the second appeal criteria were satisfied, in that “an appeal will be heard in any event, and it is unlikely that these additional grounds will significantly add to the time required for the appeal”. T his reasoning might, with respect, be considered probl ematic, in that it would render the second appeal criteria in 54.7A(7)(b) otiose, in all cases in which the judicial review challenge is to the rejection of some, but not all, of the grounds of appeal to the Upper Tribunal.

That problem is, however, subsumed in the larger question of whether CPR 54.7A has any application at all, whe re the Upper Tribunal has granted permission to appeal from the First-tier Tribunal. As can be seen from rule 22 of the Upper Tribunal Rules , the legislature contemplates that the Upper Tribunal can respond to an application for permission to appeal from the First-tier Tribunal in three ways . It can:-

In the case of certain applications for permission, described in rule 23(3)(a), an appellant may apply for a decision taken without a hearing to be reconsidered at a hearing. Rule 22(4)(a) provides that this may occur where the Upper Tribunal refuses permission or refuses to admit a late application. Rule 22(4)(b) is significant for our purposes , in that it gives a right to reconsideration where the Upper Tribunal “gives permission to appeal on limited grounds or subject to conditions”. This means, in our view, that it is not possible to extrapolate from rule 22 any inference that the legislature contemplated that a limited grant of permission c an be treated as a refusal of permission. On the contrary, it is quite clear that, according to the Rules, a grant is a grant, whether limited or not; and whether or not subject to conditions. Unlike the CPR, the Upper Tribunal Rules have P arliamentary authority .

It is necessary to compare the position under the Upper Tribunal Rules with th at in the First-tier Tribunal Rules. As we have seen, rule 34 of those R ules specifically requires the First-tier Tribunal, if giving permission to appeal on limited grounds, to comply with rule 34(4) in relation to any grounds on which it has refused permission. In respect of such grounds, the First-tier Tribunal must send “notification of the right to make an application to the Upper Tribunal for permission to appeal”. This ties directly into rule 21(2)(b) of the Upper Tribunal Rules, which expressly contemplates an application for permission to appeal where the First-tier Tribunal has granted permission “only on limited grounds”. Paragraphs 48 and 49 of the Joint Presidential Guidance 2019 No 1: Permission to appeal to UTIAC deal with “limited or restricted grounds” of permission. In paragraph 48 , reference is made, in the context of rule 21(2)(b), to permission having been “refused on some grounds”. Whilst that formulation is unobjectionable in that context, it is not , of course, dispositive of the general meaning and effect of a permission granted on limited grounds .

It c ould, nevertheless , be argued that the very fact that the “ permission interface ” between the First-tier Tribunal and the Upper Tribunal expressly caters for a means of challenging a limited grant of permission requires an expansive reading of CPR 54.7A(1) in which, despite the wording of r ule 22 of the Upper Tribunal Rules, a judicial review may be brought in the High Court, where the Upper Tribunal has granted permission to appeal on limited grounds. At paragraph 2 6 below, we deal with a case in which the Court of Appeal dealt with a challenge of this kind . It is, however, necessary first to address the genesis of CPR 54.7A.

Some support for the expansive reading just described might be said to lie in the actual case which led to the creation of the procedure in CPR 54.7A and which has , in practice, given its name to that procedure : R (Cart) v the Upper Tribunal and R (MR) Pakistan v the Upper Tribunal ((Immigration and Asylum Chamber) and Secretary of State for the Home Department [2011] UKSC 28 ; [2011] Imm AR 704 . As is plain from paragraph 3 of the judgment of Lady Hale, Mr Cart’s judicial review was brought against the refusal by the Upper Tribunal Administrative Appeals Chamber of permission to appeal on one of four grounds. Since CPR 54.7A was introduced to give effect to the judgments in Cart , it could , therefore, be said to be wrong to read the words “refusal by the Upper Tribunal of permission to appeal” as excluding cases where the Upper Tribunal has granted permission on limited grounds.

There are, however, powerful arguments in favour of the opposite conclusion , which are, in our view, persuasive . The judgments in Cart show the Supreme Court was anxious that judicial review of the Upper Tribunal ’s permission to appeal functions should be kept in narrow bounds. Although the case itself concerned a limited grant of permission, the wording of CPR 54.7A shows an appreciation of the important fact that the right of challenge to a decision of the Upper Tribunal in this area is needed where that decision disposes of the appeal proceedings . A limited grant of permission does not dispose of the appeal proceedings . There is still an appeal to be decided by the Upper Tribunal, which :

We shall deal first with the jurisdictional position. Rule 22(2)(b) of the Upper Tribunal states that, subject to any direction by that Tribunal, the application for permission to appeal stands as the notice of appeal. What this means is that unless the Upper Tribunal makes such a direction, then , even if it has granted permission to appeal only on limited grounds, the notice of appeal p uts all of the grounds at issue in the Upper Tribunal proceedings. I n the present case, there was no such direction. The High Court was, therefore, being asked to adjudicate on a non-existent issue.

It is instructive at this point to look beyond the immigration and asylum jurisdiction of the Upper Tribunal. At paragraph 4.214 of Jacobs : Tribunal Practice and Procedure (5 ^th Edition, 2019) , the author considers that “the power to give permission on limited grounds may not be of practical significance”. The authority for this statement is paragraph 3 of the Upper Tribunal Administrative Appeal Chamber ’s decision in DL-H v Devon Partnership NHS Trust [2010] UKUT 102 (AAC) , where it held as follows:-

There are nuanced differences between the Administrative Appeals Chamber and the Immigration and Asylum Chamber , which were explored by the latter in Ferrer (limited appeal grounds ; Alvi ) [2012] UKUT 304 (IAC). Notwithstanding these, and leaving aside the fact that, in an immigration and asylum appeal , the power to strike out is extremely circumscribed, the basic point made in DL-H holds good in the Immigration and Asylum Chamber. T here is no relevant jurisdictional fetter upon the Upper Tribunal’s consideration of an appeal from the First-tier Tribunal. The scope of the appeal is subject to procedural constraints. Those constraints must be exercised compatibly with the overriding objective in rule 2. The power to give directions in rule 5(2) expressly includes the power to make “a direction amending, suspending or setting aside an earlier direction”. Whilst that power must, of course, be exercised on a principle d basis, the overall position in the Upper Tribunal is such that an appellant who has been subject ed to a grant of permission on limited grounds does not, as a general matter, need to resort to the Administrative Court. That is so , even if there has been a direction of the kind contemplated by rule 22 (2)(b).

In so finding , we are cogni sant of the judgment of the Court of Appeal in Sark a r and another v Secretary of State for the Home Department [2014] EWCA Civ 195 ; [2014] Imm AR 911 . In that case, the Upper Tribunal granted permission to appeal on a ground relating to section 47 of the Immigration, Asylum and Nationality Act 2006. In his reasons for granting permission, Upper Tribunal Judge Spencer said he had taken the provisional view that the appeals should be allowed on th is limited basis. The appellants ’ application for permission had, in fact, included a ground based on Article 8 of the ECHR. Neither the appellants nor the respondent responded to the Upper Tribunal’s invitation to react to th e judge’s provisional view , with the result that he proceeded to set aside the First-tier Tribunal judge ’s decision and re-make the decision in the appeal , by allowing it on the section 47 ground.

The appellants obtained permission to appeal to the Court of Appeal, contending that the Upper Tribunal should have dealt with the A rticle 8 issue. Giving the only reasoned judgment, Moore-Bi ck LJ said:

As can immediately be seen, Moore-Bi ck LJ’s observations on the jurisdictional position of the Upper Tribunal were obiter . It does not appea r that the court was referred to the relevant provisions of the Upper Tribunal Rules , which we have set out above . The case is, nevertheless, instructive , in that it highlights the second reason given in paragraph 1 9 above why judicial review of a limited grant of permission by the Upper Tribunal is unnecessary; namely, because a party who is dissatisfied with the way in which the Upper Tribunal has acted under its procedural powers to limit the scope of the appeal may apply for permission to appeal to the relevant appellate court against the resulting substantive decision .

Finally, mention must be made of the case foreshadowed in paragraph 17 above: JH (Palestinian Territories ) v Upper Tribunal (Immigration Asylum Chamber) and Secretary of State for the Home Department [2020] EWCA Civ 919. The judgment of the Court of Appeal concerned the position in costs, following a judicial review brought pursuant to CPR Rule 54.7A. The judicial review proceedings involved the challenge to a decision of the Upper Tribunal, refusing permission to appeal in respect of grounds that had been rejected by the First-tier Tribunal and which were then subject to an application to the Upper Tribunal , pursuant to rule 34(4)(b) of the First-tier Tribunal Rules and rule 21(2)(b) of the Upper Tribunal Rules. The Court of Appeal judgments did not address the question of whether CPR 54.7A is appropriate in this situation . Although the points we have made regarding the nature and scope of appeals in the Upper Tribunal apply equally where that Tribunal is seized of an appeal that has come to it following a limited grant for permission by the First-tier Tribunal, the fact that rule 21(2)(b) of the Upper Tribunal Rules provides expressly f or a right of application for permission to appeal to the Upper Tribunal on th is discrete basis may mean that, anomalously, a refusal by the Upper Tribunal at that stage to expand the limited grounds is to be treated as on all fours with an outright refusal of permission. We do not , however , consider that JH means the words “ refusal … of permission to appeal” in CPR 54.7A must be generally read as including a grant of permission to appeal.

Although both members of th e pres ent panel sit in the Administrative Court, we are, of course, here acting as judges of the Upper Tribunal. Our analysis of the ambit of CPR 54.7A ha s been necessitated by the fact that, in order to give effect to the High Court’s decision in the judicial review, we have had to establish the nature and effect of that decision. In the light of the conclusions we have reached , the decision of the Master to order that “the decision of the Upper Tribunal to refuse permission to appeal is quashed” cannot be read as it stands, because there was no such decision. Since t he only decision of the Upper Tribunal was to grant permission on limited grounds , it would seem the only way of giving express effect to the Master’s order would be to treat it as having quashed the Upper Tribunal’s grant of permission .

It is unnecessary for us to have to adopt such a course . This is because, t here being no direction to the contrary, the appellant’s grounds of appeal, in their entirety, stand as the grounds of appeal to the Upper Tribunal. Since that is the outcome the High Court envisaged, an express acknowledgment of th at fact by this Tribunal accords proper respect to the proceedings in th e High Court . And s ince th at also coincides with the appellant’s aim, and is not opposed by the respondent, we hereby formally record that the appellant may advance all his grounds of appeal at the forthcoming hearing in the Upper Tribunal. If we are wrong, and it is necessary for the Upper Tribunal to grant permission, we do so on that basis.

We can sum up the position as follows :

As envisaged in the further submissions of 31 March, this case affords an opportunity to explain why it is inappropriate to seek to challenge in the High Court by way of judicial review the Upper Tribunal’s limited grant of permission to appeal . Those acting for the appellant at the relevant time did not , of course, have the benefit of the analysis we have set out above ; and we are fully satisfied that they acted in good faith in furtherance of the best interests of the appellant. For the future, however, practitioners will be expected to be mindful of this decision.

The appeal will be listed for hearing in the Upper Tribunal.