ON APPEAL FROM
UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)
AA054632010, AA045462010 & AA003922010
Strand, London, WC2A 2LL
B e f o r e :
THE RT HON SIR ANTHONY MAY (President of the Queen's Bench Division)
THE RT HON LORD JUSTICE CARNWATH (Senior President of Tribunals)
| (1) PR (SRI LANKA)
|(2) SS (BANGLADESH)
|(3) TC (ZIMBABWE)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPT
Tasaddat Hussain & Ish Ahmed (instructed by Parker Rhodes Hickmotts)
for the 2nd Appellant
Michael Fordham QC, Justine Fisher & Paul Nettleship (instructed by Sutovic & Hartigan) for the 3rd Appellant
Jonathan Hall (instructed by Treasury Solicitors) for the Respondent
Hearing dates : Tuesday 26th & Wednesday 27th July, 2011
Crown Copyright ©
LORD JUSTICE CARNWATH (giving the judgment of the court):
The second-tier appeal test
"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."
"(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."
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…."
"... 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)
"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)
"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)
"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 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."
"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 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.
"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.
Cart; MR; Eba
i) It was agreed that proper use of judicial resources required a restriction on the right of recourse to the courts, even if the result was that some arguable errors of law might go uncorrected. As Lord Brown said:"The rule of law is weakened not strengthened if a disproportionate part of the court's resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff" (para 101).
ii) The court agreed with Sullivan LJ in rejecting arguments that "the special features of the asylum jurisdiction" justified a less restrictive approach, or that a different approach should be adopted depending on the subject matter of the decision under review. Such distinctions would be "completely inconsistent with the new structure" and "contrary to the unifying purpose of the TCEA" (paras 36, 37, 125). The Sinclair Gardens approach should no longer be followed (para 57).
iii) Two alternative approaches advanced in argument were considered, but not adopted: (i) the "exceptional circumstances" approach (as adopted by the lower courts), that is review limited to restriction to "pre-Anisminic excess of jurisdiction and the denial of fundamental justice"; and (ii) "the status quo ante" (as advanced by the appellants) (paras 37-51).
iv) Instead the court, referring with approval to the judgment of Dyson LJ in Wiles, adopted "the second-tier appeals criteria", as offering "a rational and proportionate" restriction on the availability of judicial review, and one which would –"... recognise that the new and in many ways enhanced tribunal structure deserves a more restrained approach to judicial review than has previously been the case, while ensuring that important errors can still be corrected" (para 53,57; see also 129-30).Lord Phillips, having initially favoured an even more restrictive test -"... was persuaded that there is, at least until we have experience of how the new tribunal system is working in practice, the need for some overall judicial supervision of the decisions of the Upper Tribunal, particularly in relation to refusals of permission to appeal to it, in order to guard against the risk that errors of law of real significance slip through the system." (para 92)
v) Comments were made with specific reference to the two parts of the second-tier appeals test:-Lady Hale:"It is a test which the courts are now very used to applying. It is capable of encompassing both the important point of principle affecting large numbers of similar claims and the compelling reasons presented by the extremity of the consequences for the individual." (para 57)Lord Clarke:"My experience as Master of the Rolls was that such a test worked well for second appeals. On the one hand it limited the number of appeals and thus the expenditure of excessive resources while, on the other hand, it enabled the court to hear cases raising an important point and cases where there was some other compelling reason to do so. In that way the court has been able to deal with cases where something has gone seriously wrong." (para 104)Lord Dyson:"... the second limb of the test ("some other compelling reason") would enable the court to examine an arguable error of law in a decision of the FTT which may not raise an important point of principle or practice, but which cries out for consideration by the court if the UT refuses to do so. Care should be exercised in giving examples of what might be "some other compelling reason", because it will depend on the particular circumstances of the case. But they might include (i) a case where it is strongly arguable that the individual has suffered what Laws LJ referred to at para 99 as "a wholly exceptional collapse of fair procedure" or (ii) a case where it is strongly arguable that there has been an error of law which has caused truly drastic consequences." (para 131)Lord Hope (in Eba):"I would hold that the phrases "some important point of principle or practice" and "some other compelling reason", which restrict the scope for a second appeal, provide a benchmark for the court to use in the exercise of its supervisory jurisdiction in relation to decisions that are unappealable that is in harmony with the common law principle of restraint... Underlying the first of these concepts is the idea that the issue would require to be one of general importance, not one confined to the petitioner's own facts and circumstances. The second would include circumstances 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." (Eba para 48, citing with approval Uphill and Cramp).
The arguments in this Court
i) First come the implications for the individual, of serious risk of serious harm, such as were acknowledged to be relevant in Cart by both Lady Hale ("the extremity of the consequences for the individual") and Lord Dyson ("truly drastic consequences").
ii) Secondly, for the State, removal in violation of the UK's international human rights is "at or near the top of the list" of what is serious and compelling in relation to its responsibilities under the rule of law.
iii) Thirdly, while it is accepted that the proper application of the test is a matter of "judicial policy for the court", there is unlikely to be any higher call on the conscience of the law than protection of the fundamental rights of individuals to refuge, and not to be removed to face serious harm. The special vigilance of the Courts in asylum removal cases has long been reflected in the so-called "anxious scrutiny" approach, derived from Lord Bridge's speech in Bugdaycay v SSHD  AC 514, 531F-G.
"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  1 AC 1101, para 29).
i) First, the merits, in particular whether the prospects of success were "very high", bearing in mind the guidance of Lady Hale in AH (Sudan) v Secretary of State  1 AC 678, para 30, as to the caution appropriate to an appeal from a specialist tribunal.
ii) Secondly, countervailing matters such as fault by the party seeking permission, although, as he acknowledged, such matters might have "little if any weight" where serious human rights or asylum issues are in play.
iii) Thirdly, procedural irregularity. If the Upper Tribunal had failed to provide a fair appeal hearing, then there might be greater reason for the Court of Appeal to intervene.
iv) Fourthly, the possible consequences to the individual might supply "some other compelling reason", but the fact that the applicant has already failed to make out the relevant risk to the lower standard, and has failed at the first tier of appeal, before a specialist and expert tribunal, might mean that no scrutiny by the Court of Appeal was called for, whatever the claimed consequences.
Discussion of principle
Application to individual cases
The proposed appeal
"... 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."
i) It would be wrong to exclude an asylum appeal under the second appeal test where, as in this case, the Upper Tribunal has heard the case "de novo";
ii) The case raises a new point of principle, that is, whether in the light of the observations of the ECtHR in RC v Sweden (App. No. 41827/07, 9 March 2010), the tribunal should proceed on the basis that, once it was shown that the Applicant had been tortured, the burden of proof as regards risk on return fell on the State.
The proposed appeal
i) Undue weight attached to his risk of reoffending;
ii) Inadequate consideration of the reasonableness of his return to Zimbabwe, having regard in particular to the interests of the children, one of whom was a British citizen;
iii) Misapplication of the guidance in RN (Zimbabwe)  UKAIT 00083, as to his ability to demonstrate loyalty to the regime;
iv) Failure to have regard to the issue of a section 72 certificate.
i) The SIJ wrongly determined the risk of TC reoffending, holding that it justified the interference with his family and private life, but failed to consider all the evidence of the experts qualified to make the assessment, which supported a lesser risk. That should have been taken into account in assessing the proportionality of interfering with his article 8 rights. A serious offence does not always require deportation (referring to the observations of Blake J in RG (Automatic deport – Section 33(2)(a) exception) Nepal  UKUT 273 (IAC), para 43)
ii) The SIJ had erred in consideration of the reasonableness of return having regard to the guidance in Beoku-Betts  UKHL 39 and ZH (Tanzania) v SSHD  UKSC 4, both of which emphasised the paramount importance of the interests of the children, particularly if they are British citizens. It was not reasonable to expect NM, TC's partner, to return to Zimbabwe with her children, both of whom were born in the United Kingdom, after having left 10 years earlier. TC's first child, J, could not be removed from the United Kingdom because he is a British citizen. It was said that Sir Richard Buxton made a number of errors of fact with respect to his relation with the first child, J. Further, the SIJ held that TC had shown no interest in his own children, wrongly ignoring, for example, a letter from the school of the elder child that he had been an "integral part" of her excellent attitude to the school and that his deportation would have a "devastating effect" on her.
iii) The tribunal had failed to address the basis of the claim under RN(Zimbabwe). The finding that the claimant had no political profile was insufficient. As stressed by the Court of Appeal in RT(Zimbabwe)  EWCA 1285, in Zimbabwe there is no neutral. The absence of positive support for the ruling Zanu-PF is itself a political stance.
"… 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."
"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  3 All ER 264 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."
".... 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."
The proposed appeal
"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.