England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
Ref: AA134472010

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/03/2012

Lord Justice Sullivan:

This is the judgment of the Court.

Introduction

1. The right of appeal from the Upper Tribunal (Immigration and Asylum Chamber ) ("UT") to the Court of Appeal is subject to the "second-tier appeals test": permission to appeal is not to be granted unless the UT or this 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 [Court of Appeal] to hear the appeal."

Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act") and The Appeals from the Upper Tribunal to the Court of Appeal Order 2008 ("the 2008 Order").

2. In PR (Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 73, [2011] EWCA Civ 988, ("PR") this Court explained how the second-tier appeals test was to be applied to appeals from the UT . In each of the three cases before the Court – PR, TC (Zimbabwe) and SS (Bangladesh) -the appellant had failed before both the First-tier Tribunal (FTT) and the UT. In PR, the UT having held that the FTT had erred in law by failing to consider a medical report, reconsidered the appeal and dismissed it. Giving the judgment of the Court, Carnwath LJ said in paragraph 41:

"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." (emphasis added)

3. How should the test be applied in cases where the appellant has succeeded before the FTT but failed in the UT following a successful appeal by the Secretary of State? How should the test be applied in cases where the appellant has "failed twice in the tribunals system", but the FTT's adverse decision was set aside because it contained a material error of law, and the UT has re-made the decision and dismissed the appeal? The issue is not whether the second-tier appeals test applies to such cases (all of the parties accept that the test does apply), but how the test should be applied in such cases.
4. JD, WN and MR's appeals to the FTT were successful. On appeal by the Respondent, the UT having found that the FTT had materially erred in law, set aside the decisions in their favour, and substituted fresh decisions dismissing their appeals. ES's appeal to the FTT was dismissed, but the UT set that decision aside in its entirety. The UT then proceeded to re-make the decision, and dismissed ES's appeal.
5. JD's application for permission to appeal to this Court was considered by Carnwath LJ on the papers. He observed when adjourning the application for an oral hearing on notice to the Respondent:

"For the reasons given in the skeleton dated 15 August 2011, there is an arguable issue as to whether the UT judge was entitled to find an error of law in the FTT decision, but not one which would justify an appeal to this court under second appeal criteria explained in PR (Sri Lanka) [2011] EWCA Civ 988. There is, however, an arguable issue as to the application of those criteria to a case such as this where the UT has reversed the FTT decision. I am adjourning the application on notice to allow argument on that point."

6. The papers were referred to the Master of the Rolls to consider whether JD should be listed with other similar cases, where the applicant was successful in the FTT but not in the UT, to enable the Court to give guidance on the application of or weight to be given to the second-tier appeal test in such circumstances. The Master of the Rolls directed that these four applications for permission to appeal should be listed together to enable the Court to consider the following issues:

"In JD and WN, the application of and weight to be given to the second appeals test where the applicant was successful in the FTT but the UTIAC reversed the decision.

In ES, the same issue but in circumstances in which the FTT dismissed the appeal, an error of law was found in that decision which was set aside and the matter was heard de novo in the UTIAC.

In MR the question of whether, in either of the above circumstances the UTIAC, once it has found a material error of law and decides to set aside the FTT's decision, should proceed to hear the appeal or should remit the matter to the FTT so that the second appeals test does not apply to the next onward appeal.

In WN the relevance of the fact that an Immigration Judge sat in the UTIAC in the light of the judgment in PR (Sri Lanka) [2011] EWCA Civ 988 is also argued."

The test – the arguments

7. In summary, it was submitted on behalf of all the applicants, and by the Public Law Project (PLP) as an Intervener, that in those cases where:

i) the UT had reversed a decision of the FTT to allow an individual's appeal; or

ii) the UT had set aside a decision of the FTT to dismiss an individual's appeal because it contained a material error of law, and had then gone on to re-make the decision, and dismissed the appeal;

that was, of itself, a "compelling reason" for the Court of Appeal to hear the appeal, provided only that there was a real prospect of persuading the Court of Appeal that the UT had erred in law.

8. During the course of their submissions the applicants and the PLP acknowledged that the basis upon which the FTT's decision had been set aside by the UT might be relevant when the Court was considering whether there was a compelling reason to hear an appeal from the UT's decision; eg there might be a distinction between, at one end of the spectrum, those cases where there was a discrete error of law – failure to consider a particular piece of evidence – and at the other end of the spectrum, those cases where the hearing before the FTT had been so unfair that there had, in effect, been no proper hearing prior to the hearing before the UT.
9. As a fall back position, the applicants and the PLP submitted that if something more was needed for there to be a "compelling reason" to grant permission to appeal, then in those cases falling within (a) and (b) (above), a strongly arguable case that the UT had erred, when combined with the severity of the consequences for the appellant could amount to a compelling reason. Insofar as paragraph 36 of PR (see below, paragraph 24) decided that the severity of the consequences for the appellant was not, or was only exceptionally, a relevant factor when considering whether there were "compelling reasons", it was in conflict with the judgments of the Supreme Court in R (Cart) v Upper Tribunal (Public Law Project and another intervening) [2011] 3 WLR 107, [2011] UKSC 28 ("Cart"), and was wrongly decided.
10. On behalf of the Respondent, Mr. Blundell submitted that the statutory language, previous authority and principle all dictated that the test was to be applied in the same manner in all cases, whether the appellant had failed before both the FTT and the UT, had succeeded before the FTT but failed before the UT, or had failed before the FTT, succeeded in having that decision set aside by the UT, but had then failed before the UT. He submitted that paragraph 36 of PR was consistent with the Supreme Court's decision in Cart.

The test - discussion

11. The background to the adoption of the second-tier appeals test and its application to appeals from the UT is set out in detail in the Court's judgment in PR. With two exceptions – Azimi v Newham London Borough Council (2001) 33 HLR 51 ("Azimi") and esure Insurance Ltd v Direct Line Insurance Plc [2009] Bus LR 438, [2008] EWCA Civ 842 ("esure") – all of the authorities to which we were referred were cited to, or considered by, the Court in PR. The authorities do not show any settled pattern for present purposes. There are extensive (albeit obiter) observations by Brooke LJ as to the implications of the (then) newly enacted second-tier appeals test in Tanfern v Cameron-Macdonald [2000] 1 WLR 1311 ("Tanfern"), but they are of no real assistance in the present case because the Court did not have to consider the application of the "other compelling reason" limb of the test to an appellant who had won below but lost at the first appellate level.
12. In Azimi the Court of Appeal applied the second-tier appeal test to an appeal by a local authority from a decision of a County Court judge who had allowed an appeal by an applicant for assistance as a homeless person against the authority's review decision that he was not entitled to accommodation. Although the court in PR was not referred to this decision, it is of limited assistance because the statutory context of Azimi was most unusual. The appeal to the County Court in such cases is an appeal from the local authority's review officer on a point of law only. It is, in effect, a judicial review by the County Court of the authority's review decision. The County Court judge, having found an error in the authority's decision, set it aside and remitted the matter to the authority for redetermination.
13. In Cramp v Hastings Borough Council [2005] 4 All ER 1014, [2005] EWCA Civ 1005, another appeal from the County Court in a homelessness case, Brooke LJ said at paragraph 65 that:

"It would be regrettable if helpful guidance for the majority of cases were to ossify into rule, and Dyson LJ was wise enough to say that his advice in Uphill's case was not intended to be exhaustive. The Court of Appeal has already shown itself willing to temper the way it will exercise its discretion to grant permission for a first appeal from a specialist appellate tribunal, depending on the expertise of the tribunal (see Civil Procedure (2005), vol 1, 1462-1463 (para 52.3.10) (the White Book). It should show itself no less willing to be flexible in its interpretation of CPR 52.13 depending on the provenance of the proposed appeal."

14. In Re B (Residence: second Appeal) [2009] 2 FLR 632 [2009] EWCA Civ 545 ("Re B"), the Court of Appeal considered how the test should be applied when a Circuit Judge allowed an appeal from the justices. It was submitted that if the judge's decision was arguably plainly wrong that was a compelling reason to hear the appeal in the absence of any important point of principle or practice. The Court's answer to that submission was as follows:

"[11] Both principle and authority demonstrate that it is not. In Tanfern Ltd v Cameron-Macdonald and Another [2000] 1 WLR 1311, paragraphs [41]-[46] the Court of Appeal emphasised when giving guidance about second appeals in civil cases in private law matters (but not including family cases) that even if this court takes the view that a second appeal is properly arguable or has a real prospect of success, that does not provide a justification for hearing it. The purpose behind s 55 (1) of the 1999 Act and CPR 52.13 is that, in general, there should only be one appeal from any given decision. Were either arguability or even a strong prospect of success to constitute a compelling reason for a second appeal, there would be no difference between first and second appeals, and the statute would be deprived of its meaning and effect. In our judgment, that must equally be so in family appeals. The strength of the case does not, of itself, provide a compelling reason to hear an appeal.

[12] When listing the matter before us, Wilson LJ commented: 'second appeals may have a different colour when the proposed appellant in this court prevailed in the court of trial'. We understand the thinking behind this comment: on the face of it, there is a stronger case for a second appeal where the earlier rulings are in conflict when where they are in harmony. However, the statute itself draws no such distinction.

[13] In the event, however, we take the view that this case does raise an important point of principle, namely the interrelationship between the roles of a parent and a grandparent in the welfare equation identified by s 1 of the 1989 Act. For that reason, we granted permission to appeal.

[14] It may also be the case – we did not hear argument on the point and have reached no concluded view – that the effect of a decision relating to the welfare or future upbringing of a child may itself constitute a compelling reason for hearing a second appeal. The importance of such decisions for the children and adults concerned cannot be over-emphasised. Moreover, the fact that two courts have reached different conclusions may (a word we emphasise) reinforce the justification for hearing the appeal."

Although the Court was minded to reject the submission (see paragraphs [11] and [12]) it did not have to decide the matter because the case did raise an important point of principle. In the event the Court appears to have left open the question whether (a) the impact of the decision upon the child, and (b) the fact that two courts had reached different conclusions, were factors which were capable of being relevant when considering whether there was a "compelling reason".

15. In esure the Court of Appeal granted permission to appeal (but dismissed the appeal) against a decision of Lindsay J who had held that there was a material error of principle in the decision of a hearing officer, but had nevertheless upheld the hearing officer's decision upon the basis that, had he not made the error, he would have reached the same conclusion in any event. Having said that the complexity of the case was such that the challenge to the judge's order could not be resolved without a full hearing, Arden LJ said:

"In addition, there was a real prospect of success in this case in showing that the judge had, in a material respect, incorrectly exercised his appellate function. This also constitutes a compelling reason for the grant of permission for a second appeal for the purpose of CPR r 52.13 because the second appeal is the first opportunity that any party has had of seeking to correct this error and, if CPR r 52.13 were interpreted too stringently in this situation, there would be no right of appeal at all in these circumstances." (paragraph 65)

16. Pausing there, it seems to us that these authorities do not support either of the two extreme positions: that the fact that the UT has reversed a decision of the FTT, or has re-made the decision for itself having set aside the FTT's decision is:

i) of itself a "compelling reason" to grant permission to appeal if there is a ground of appeal which has a real prospect of success; or

ii) of no relevance when deciding whether there is a "compelling reason" to grant permission to appeal.

17. The former effectively ousts the second-tier appeal test altogether in such cases and replaces it with the ordinary test for granting permission to appeal. That would be contrary to the statutory scheme which provides that the second-tier test shall apply to such cases, so that a real prospect of success will not be a sufficient justification for granting permission to appeal.
18. The latter ignores the flexibility inherent in the statutory language – which requires the Court to decide whether a particular reason is "compelling" – and the indications (and they are no more than indications) in the authorities that the provenance of the appeal (Cramp), the consequences for the applicant for permission (Re B), and the fact that the second appeal is the first occasion that the applicant has had to correct the error (esure), may all be relevant factors when the Court decides whether there is a compelling reason to grant permission to appeal.
19. We have dealt briefly with these authorities because the second-tier appeal test was considered, albeit in the context of applications for permission to apply for judicial review of refusals by the UT of permission to appeal from decisions of the FTT, in Cart. The Supreme Court considered three possible approaches: exceptional circumstances, the status quo ante and the second-tier appeals test: see Baroness Hale at paragraph 38. When deciding which option to adopt the Supreme Court had, necessarily, to consider the ambit of each of the options: in what circumstances, and subject to what constraints, would they permit a challenge to a refusal of permission to appeal?
20. When deciding that the second-tier appeal option should be adopted Lord Dyson said in paragraph 131 of his judgment:

"131 Thirdly, 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."

21. To similar effect, Baroness Hale said in paragraph 57 of her judgment:

"57 For all those reasons, together with those given by Lord Dyson JSC (in the case) and Lord Hope of Craighead DPSC (in the Eba case [2011] 3 WLR 149), the adoption of the second-tier appeals criteria would be a rational and proportionate restriction upon the availability of judicial review of the refusal by the Upper Tribunal of permission to appeal to itself. It 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. 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."

22. We accept Mr. Beloff's submission on behalf of PLP that it is important not to lose sight of Lord Dyson's warning that "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". Undue emphasis should not be laid on the need for the consequences to be "truly drastic". Lord Dyson was expressly giving two, non exhaustive, examples. However, the second of his examples makes it clear that very adverse consequences for an applicant (or per Baroness Hale, the "extremity of consequences for the individual") are capable, in combination with a strong argument that there has been an error of law, of amounting to "some other compelling reason."
23. While the test is a stringent one it is sufficiently flexible to take account of the "particular circumstances of the case." It seems to us that those circumstances could include the fact that an appellant has succeeded before the FTT and failed before the UT, or the fact that the FTT's adverse decision has been set aside, and the decision has been re-made by the UT. Where they apply, those circumstances do not, of themselves, amount to "some other compelling reason", but they are capable of being a relevant factor when the court is considering whether there is such a reason. In Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070 Dyson LJ (as he then was) said that "anything less than very good prospects of success will rarely suffice" for the purposes of the second-tier appeals test. However, he recognised that there "may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not high": see the passages from Uphill cited in paragraph 8 of PR. Dyson LJ did not refer to the kind of circumstances with which we are concerned in these applications. That is not surprising, the Court in Uphill was not considering a case where the applicant for permission to appeal had succeeded at first instance but had failed at the first level of appeal. The defendant had failed before both the District Judge and the County Court Judge. Since Lord Dyson referred to Uphill and other authorities in his review of the earlier cases in Cart, it is appropriate to take his reference to the need for there to be a "strongly arguable" error of law as a synthesis of those earlier authorities.
24. Where does that leave paragraph 36 of PR? In paragraph 36 Carnwath LJ said:

"36. It is true that Baroness Hale and Lord Dyson JJSC in the Cart case 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."

25. The applicants and PLP submitted that if this passage meant that the consequences for the individual were not relevant, or might only exceptionally be relevant, when the court was considering whether there was "some other compelling reason", it was in conflict with the passages in Cart (above), and wrong. Although Mr. Blundell submitted that paragraph 36 was consistent with Cart, he was only reluctantly prepared to concede that, in cases such as these with which we are concerned, a strongly arguable error of law on the part of the UT when coupled with truly drastic consequences for the individual "might" amount to a compelling reason for granting permission to appeal.
26. In our view paragraph 36 of PR is consistent with Cart, indeed it would be surprising if it was not. As we read the judgment in PR, the Court was emphasising the fact that, in the absence of a strongly arguable error of law on the part of the UT, extreme consequences for the individual could not, of themselves, amount to a free-standing "compelling reason." The Court noted that Baroness Hale and Lord Dyson had "acknowledged the possible relevance of the extreme consequences for the individual." It did not suggest that such consequences were irrelevant to the consideration of whether there was a "compelling reason", it merely stated, in our view correctly, that absent a sufficiently serious legal basis for challenging the UT's decision, extreme consequences would not suffice.
27. We have deliberately used the phrase "sufficiently serious legal basis for challenging the UT's decision" because the threshold for a second appeal must be higher than that for an ordinary appeal – real prospect of success. How much higher, how strongly arguable the legal grounds for the challenge must be, will depend upon the particular circumstances of the individual case and, for the reasons set out above, those will include the extremity of the consequences of the UT's allegedly erroneous decision for the individual seeking permission to appeal from that decision. It may well be the case that many applicants in immigration and asylum cases will be able to point to the "truly dire consequences" of an erroneous decision. As Mr. Husain pointed out, a decision to remove an asylum applicant from the United Kingdom's jurisdiction to the place where he claims to fear persecution will be irreversible. Just as there is no case for applying a different test to applications for permission to appeal from the Immigration and Asylum Chamber of the UT (see Lord Dyson at paragraph 125 of Cart), so also there is no reason to minimise the significance of the consequences of a decision in the immigration and asylum field merely because legal errors in that field are often capable of having dire consequences for appellants.
28. What is the position when the UT, having set aside the FTT's decision to dismiss the applicant's appeal on the ground that it contains a material error of law, exercises its discretion under section 12(2)(b)(ii) of the 2007 Act to re-make the decision, and dismiss the appeal? The second-tier appeals test applies to the UT's decision, but as the Court said in PR:

"We accept, however, that both the Uphill case [2005] 1 WLR 2070 and the Cart case [2011] 3 WLR 107 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 the Cramp case [2005] 4 All ER 1014, 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."

29. This is not authority for the proposition advanced by the applicants and PLP that the mere fact that the UT has set aside the FTT's decision and re-made the decision is a compelling reason to grant permission to appeal provided the challenge to the lawfulness of the UT's decision has a real prospect of success. Such an approach would substitute the ordinary test for granting permission to appeal for the second-tier appeals test in circumstances where the 2007 Act and the 2008 Order provide that the latter shall apply. Equally, paragraph 53 of PR does not support the Respondent's position: that if the UT decides that it is not necessary to remit the case to the FTT, it is of no consequence for present purposes that the UT will be making its decision de novo.
30. If the Court is bound to have regard to the particular circumstances of the case (see Lord Dyson at paragraph 131 of Cart), the reason why the FTT's decision was set aside is capable of being a relevant factor when deciding whether there has been, in substance, only one level of judicial consideration. We emphasise the words "in substance". As a matter of form, if it has re-made the decision the UT will always have set aside the FTT's decision on the basis of an error of law (see section 12(2) of the 2007 Act, paragraph 33 below), but errors of law are many and various and may range from a discrete failure to consider a particular piece of evidence (eg the medical report in PR), to a decision that is so replete with error that the UT will have had to start again from scratch.
31. The extent to which it was possible to preserve the findings of fact of the FTT will be relevant. If the FTT has rejected an appellant's case, but in doing so has failed to consider a particular piece of evidence, or has failed to give adequate reasons for reaching a particular conclusion adverse to the appellant, and on re-making the decision the UT reaches the same conclusion having considered the evidence that was omitted from the FTT's consideration, or if the UT gives more detailed, and adequate reasons for reaching precisely the same conclusion as the FTT, we can see no reason for applying a less demanding standard. In such cases there will, in substance, have been two levels of judicial consideration and the appellant will have failed twice in the tribunal system. In other cases the UT may have reversed the FTT's decision upon the basis of a wholly new legal point which was not argued before the FTT, in respect of which there will have been only one level of judicial consideration.
32. These are illustrations of the flexibility that is inherent in the second limb of the second-tier appeals test. In those cases where an asylum seeker has "failed twice in the tribunal system" because the UT has either agreed with the FTT on appeal, or has refused permission to appeal against the FTT's decision upon the basis that it contains no arguable error of law, it is likely to be much more difficult to persuade this Court on an application for permission to appeal, or the Administrative Court on an application for permission to apply for judicial review, that the legal basis for challenging the UT's decision is sufficiently strong and the consequences for the applicant are so extreme as to amount to a compelling reason for giving permission to appeal, or to apply for judicial review, respectively.

Remission

33. In view of our conclusions as to how the second-tier appeals test should be applied in these cases, we can deal very briefly with this issue. If their principal submission, summarised in paragraph 7 (above), was not accepted by the Court, the applicants (with the support of PLP) submitted that where the UT set aside the FTT's decision it should always remit the case for redetermination by the FTT, rather than remake the decision itself, at least in any case where further factual findings were required. This would avoid the application of the second-tier appeals test to the re-made decision.
34. Section 12(2) of the 2007 Act confers a broad discretion upon the UT if it decides that there is an error of law in the FTT's decision:

"(2) The Upper Tribunal –

(a) may (but need not) set aside the decision of the First-tier Tribunal, and

(b) if it does, must either –

(i) remit the case to the First-tier Tribunal with directions for its reconsideration, or

(ii) re-make the decision.

(4) In acting under subsection (2)(b)(ii), the Upper Tribunal -

(a) may make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision, and

(b) may make such findings of fact as it considers appropriate."

35. On 10^th February 2010 the Senior President of Tribunals published Practice Directions and Practice Statements for the FTT and UT. The Directions and Statements explain how the UT will normally exercise the discretion conferred by section 12(2). Rather than remit the case to the FTT,

"7.2 The Upper Tribunal is likely on each such occasion to proceed to re-make the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper tribunal is satisfied that:-

the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or

there are highly compelling reasons why the decision should not be re-made by the Upper Tribunal. (Such reasons are likely to be rare.)"

(paragraph 7.2 of the Practice Statements, see also paragraph 3.1(b) of the Practice Directions)

36. The applicants did not contend that the Senior President had no power to issue Practice Statements and Practice Directions for the FTT and UT. It seems to us that the emphasis in paragraph 7.2 of the Practice Statement upon the desirability of the UT re-making the decision rather than remitting the case to the FTT for reconsideration, far from being unlawful, is an eminently sensible use of limited judicial resources within the UT and FTT, and is wholly in accord with the Senior President's obligation under section 2(3)(b) of the 2007 Act to have regard to the need for proceedings before tribunals: (i) to be fair, and (ii) to be handled quickly and efficiently.
37. The sole basis for the applicants' submission was the perceived need to avoid the adverse consequences of the application of the second-tier appeals test to a decision that was re-made by the UT. It was feared that the application of the test would effectively render the re-made decision "unappealable" in the absence of an important point of principle or practice. For the reasons set out above (paragraphs 11-31), that fear is not well founded. While the mere fact that an appellant has succeeded before the FTT and failed in the UT, or has succeeded in having an adverse decision in the FTT set aside only to receive an adverse decision from the UT, is not sufficient to constitute a compelling reason so as to bring the ordinary test into play, the Court when applying the second limb of the second-tier appeal test to the re-made decision by the UT will take account of the particular circumstances of each case.
38. The second-tier appeals test will still be more stringent than the ordinary test for granting permission, as illustrated by the two examples given by Lord Dyson in Cart (paragraph 20 above), but it is not so stringent as to render the re-made decision "unappealable"; and the fact that a more stringent test will be applied by the Court when deciding whether to grant permission for an appeal against the re-made decision is not a justification for remitting the case rather that remaking the decision. Prompt decision making in the tribunals system is in the best interests of all parties.

Immigration Judges sitting in UT

39. The applicant's submission that the fact that an Immigration Judge (rather than a Senior Immigration judge) sat in the UT, as occurred in the case of WN, is, of itself, a reason to find that the second limb of the second-tier appeal test is satisfied is said to be based upon the statement of Baroness Hale in paragraph 56 of Cart that the "Second judge should always be someone with more experience and expertise than the judge who first heard the case."
40. When her statement is read in context, it is clear that Baroness Hale was concerned with the different levels of an effective appellate structure, and was not encouraging an examination of the qualifications and experience of individual Deputy Judges in the UT. The short answer to this submission is that the 2007 Act makes provision for the appointment of Deputy Judges to the UT and there is no suggestion that the provisions of the Act were not complied with in these cases. The particular circumstances of the case will include the quality of the decision – is it strongly arguable that it is legally erroneous – they will not include the qualifications or experience of the decision-maker, save in those very rare cases where it is contended that the statutory criteria for appointment as a Deputy Judge of the UT were not met.

The individual cases

41. Although these four cases are all applications for permission to appeal we give permission for this judgment to be cited as authority, but only for the statements of principle as to the manner in which the second-tier appeals test should be applied in such cases. This judgment is not to be cited as an authority insofar as it deals with the facts of the individual cases. At this stage lengthy reasons are not appropriate, particularly where permission to appeal is granted.
42. We grant permission to appeal in the case of JD. It is strongly arguable that there was an error of law in the UT's conclusion that the FTT had erred in law, and that the UT's criticisms of the FTT's decision amount to no more than a disagreement as to the proportionality of removal; and the consequences of removal for the applicant and his partner would be very severe.
43. We also grant permission to appeal in the case of WN. It is another case where it is strongly arguable that there was no error of law in the FTT's decision, and that the UT's approach was itself in error. Again, the consequences of removal for the applicant would be very severe. The FTT had found that the applicant's medical condition made it one of those very exceptional cases where the humanitarian grounds against removal were compelling.
44. ES is a case where there was, in substance, only one level of judicial consideration of the applicant's claim to fall within the categories of those who are at risk on return to Iran, as set out in the relevant Country Guidance: BA (Demonstrations in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC). The FTT's decision was set aside in its entirety by the UT on the ground that it contained a number of errors of law. Against this background, there is a strong argument that the UT did not correctly apply the Country Guidance, and that a failure to apply this particular guidance will have drastic consequences for the individual on return. We grant permission to appeal in this case.
45. We refuse permission to appeal in MR. Mr. Malik was not able to point to any error of law in the UT's decision, his only submission was that having (correctly) found a material error of law in the FTT's decision in MR's favour and set it aside, the UT should have remitted the case for redetermination rather than re-making the decision itself. He contended that, despite the lack of any error of law in the re-made decision, this was an important point of principle or practice. The point is an important one, but it is not well founded for the reasons set out above under "Remission".