Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 28
P550/13	OPINION OF LORD GLENNIE   in the Petition of   THABO JONES MDLULI   Petitioner;   for   Judicial Review of a decision by the Upper Tribunal (Immigration and Asylum Chamber) to refuse to grant the petitioner permission to appeal     ________________

 

Petitioner: Caskie; Drummond Miller LLP

Respondent: Komorowski; Office of the Advocate General

 

18 February 2014

 

Introduction

[1] On 7 February, at a "substantive" first hearing of a petition for judicial review of a refusal by the Upper Tribunal (hereafter "UT") to grant permission to appeal from a decision of the First-tier Tribunal ("FTT"), I granted the prayer of the petition and reduced that decision.

[2] As counsel acknowledged, the hearing before me raised issues of principle and practice, and involved some further consideration of what has become known in Scotland (though probably not in England) as the Eba test: Eba v Advocate General [2012] SC (UKSC) 1 ("Eba"), and see R (Cart) v Upper Tribunal (Public Law Project and another intervening) [2012] 1 AC 663 ("Cart"). I therefore indicated that I would write on the matter.

 

Background

[3] The petitioner's application for leave to remain in the UK was made both under the Immigration Rules and under article 8 ECHR (right to family life). It was based upon the fact that he lived as part of a family unit with his father and siblings, all of whom have immigration status in the UK and two of whom (his father and sister) are British citizens. As is often the case with petitioners whose cases come before these courts, the petitioner has what the respondent would describe as an immigration "history". He originally entered the UK as a working holidaymaker; but he remained in the UK as an "over-stayer" after the time when, in accordance with Immigration Rules then in force, his application to switch categories from working holidaymaker to student was refused. Some time then passed - during which he obtained a degree in quantity surveying in Scotland - before he made his application under article 8. But I refer to this only as background - it is not directly relevant to the disposal of this petition.

[4] The application for leave to remain was refused by the Secretary of State. She also issued removal directions. The petitioner appealed. An immigration judge of the FTT dismissed his appeal in a decision running to some 50 paragraphs.

 

Right of appeal to UT

[5] In terms of section 11(1) of the Act, there is a "right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision". This is not an excluded decision. The right to appeal to the UT, however, "may be exercised only with permission" of the FTT or the UT: section 11(3). Clearly that confers on the FTT and the UT a discretion as to whether or not to grant permission.

 

Exercise of discretion to grant or refuse permission to appeal

[6] The mere identification of a point of law arising from the decision of the FTT will not necessarily lead to permission to appeal being granted. It may not be granted, for example, if the point of law is not reasonably arguable or would not affect the outcome of the case even if decided in favour of the applicant. Other factors may also be relevant. The President of the UT Immigration and Asylum Chamber ("UTIAC") has issued helpful guidance under para 7 of Schedule 4 to the Act to judges of the FTT and UT considering whether to grant permission to appeal in such circumstances: Guidance Note 2011 No.1: Permission to appeal to UTIAC (amended September 2013). That guidance makes it clear that it is not intended to be binding. The relevant legal test remains that set out in section 11 of the Act. However, as is said in para 6 of the guidance, though there is a "right of appeal" on a point of law arising from the decision of the FTT, "the requirement to obtain permission enables the judiciary involved to grant permission only where it is appropriate to do so." It is made clear in the covering note that consideration of an application for permission is a judicial decision for the individual judge performing that function.

 

Reasons for grant or refusal of permission

[7] A judge granting or refusing permission to appeal must, of course, give reasons. The reasons need not be lengthy - indeed when permission is granted there is much to be said in some cases for keeping them short - but they must be adequate and intelligible. The giving of reasons is particularly important when permission is refused. The Guidance Note gives helpful guidance on this. It emphasises the need to "engage" with competently drafted grounds of appeal: para 29. The guidance goes on to say this (at paras 29 - 31):

"29. ... The maxim that an appellant is entitled to know why he or she has won or lost also has utility for PTA [permission to appeal] applications. There is a limit to what is required if grounds are overlengthy, rambling, incoherent and imprecise, but there should be some attempt to respond to the case as presented. What is called for is not description of the grounds, but evaluation.

 

30. If the grounds are the same as those made to the Judge dealing with the "first application" for PTA this can often be done by adopting that Judge's observations, but where the grounds are different or the submission is that the Judge dealing with the "first application" has failed to engage with the reasons for which permission is sought, something further is necessary ....

 

31. Resort to very generalised or formulaic reasons or conclusions for refusing PTA do not give an assurance that the point has been understood and engaged with. In an 11 February 2010 speech to the UTIAC judiciary the President highlighted the need when dealing with PTAs to respond to the grounds of appeal and to identify succinctly and clearly why PTA has been granted or refused."

 

I respectfully agree with all of that. The opening sentence of paragraph 31 of that guidance is important. The concern is not simply of a failure to give adequate reasons; it is that the failure to give adequate reasons may suggest a failure to give proper consideration to the application. Parliament has provided that the applicant who has failed in his initial appeal against the decision of the Secretary of State should have two separate opportunities of applying for permission to appeal to the UT. He can apply for permission to the FTT. If that is refused, he can apply for permission to the UT. It is axiomatic that each opportunity should be effective. On each occasion the application for permission to appeal should be properly considered or, as the guidance puts it, "understood and engaged with". Unless that is done, Parliament's intention will have been thwarted - the applicant will not in reality have had his two opportunities. A failure at the stage of the "first application" can to some extent be corrected by proper consideration being given to the "second application". However, if the UT does not understand or engage with the "second application", the applicant has no redress other than in the courts. A complaint that the reasons given for refusing permission to appeal are "generalised or formulaic" may in some cases legitimately be presented not simply as a "reasons" challenge but as a challenge based on a failure of due process: see, for example, S v Secretary of State for the Home Department [2013] CSOH 43 at para [13].

 

The petitioner's "first application" for permission to appeal to the UT

[8] The petitioner applied to the FTT for permission to appeal to the UT (the "first application"). I was told that the application was in the same terms as the subsequent renewed application before the UT. Assuming that to be so, the grounds advanced by the petitioner ran to some 10 paragraphs. Whatever might be the merits of the points raised, it is clear that all or almost all of those paragraphs raised issues of law. For reasons which I shall explain in due course, it is not for the court on this application to assess the strength of those arguments.

[9] That first application was refused. The judge considering the application (who was not the same as the judge hearing the appeal from the Secretary of State) gave the following reasons:

"2. The grounds [of appeal] ... contend at some length the judge was mistaken in her Article 8 ECHR findings, asserting that the judge adopted the wrong approach and reached contradictory findings about family life.

 

3. The length of the grounds fails to disguise their absence of merit. They misrepresent a careful, structured and comprehensive analysis of the facts properly found, extending from paragraph 18 to paragraph 47 of the determination. There are no contradictions: see paragraph 38 and 39 for the judge's summary of the family life found. The judge's proportionality conclusions were open to her. The grounds amount to no more than an elaborate disagreement with the judge's decision. No arguable error of law has been identified."

 

The petitioner's "second application" for permission to appeal to the UT

[10] The petitioner renewed his application for permission to the UT, as he was entitled to do: section 11 Tribunals, Courts and Enforcement Act 2007 ("the Act"). This was his "second application" for permission to appeal (to use the terminology in the Guidance Note). His grounds of appeal were the same as before.

[11] That second application was refused. The judge of the UT who considered the application gave these reasons:

"The grounds seeking permission to appeal take issue with the findings made by the First-tier Tribunal judge with regards to the proportionality of the decision to remove him. They seek to re-litigate matters that were aired before the First-tier Tribunal and upon which the First-tier Tribunal judge reached careful and considered findings taking account of the evidence as a whole in reaching his decision.

 

There is no arguable error of law."

 

Judicial Review

[12] The refusal by the UT of permission to appeal from a decision of the FTT is an unappealable decision. As such it is amenable to judicial review. However, it is now established that the court will only grant a petition for judicial review and reduce the decision refusing permission to appeal if the Eba test is met, i.e. if either (a) the point of law in respect of which it is alleged that permission to appeal ought to have been granted raises an important point of principle or practice or (b) there is some other compelling reason why the court should interfere. The phrasing at (b) is my own rephrasing of the second limb of the Eba test. I return to this point below.

[13] Before turning to consider the Eba test it is useful to remind oneself of two matters: first, what the petition for judicial review is directed against; and, second, what it seeks to achieve. Both points are sometimes overlooked.

[14] As to the first point, the petition for judicial review is directed against the decision of the UT to refuse permission to appeal. This is obvious, but it was emphasised, in case anyone was in any doubt about it, by the Inner House in SA v Secretary of State for the Home Department [2013] CSIH 62 at para [15]. The petition must set out the basis for saying that the decision by the UT to refuse permission to appeal from the FTT should be reduced on recognised judicial review grounds, whether because the UT erred in law, because it failed procedurally in some material respect or because of some other reason recognised as forming a proper basis for interference by the Court of Session with the decision. It is not, therefore, directly relevant, as an end in itself, for the petition to identify errors of law on the part of the FTT: SA at para [15]. However, if the basis for the petition is that the UT erred in law (as opposed to some other ground of judicial review), such error is likely to be one of failing to appreciate that the decision of the FTT gave rise to a point of law worthy of appeal. In refusing the application for permission to appeal, the UT may, for example, have taken the view that the point of law raised by the appellant was not sufficiently arguable to justify the giving of leave; or it may have considered that, even if the point was arguable, it would not affect the outcome of the case. The court hearing the petition for judicial review may be persuaded that the UT was wrong in any such assessment. If so, that error would be an error of law on the part of the UT capable (subject to the Eba test) of justifying interference by the court by judicial review. Any argument about whether the UT erred in law in this way necessarily involves the petitioner identifying errors of law on the part of the FTT - he must show what errors he alleges were made by the FTT in order to show that the UT erred in law in failing to pick them up or properly assess their merit or relevance. Accordingly, while it is obviously correct to say (as is said in SA at para [15]) that the focus of the petition must be on the grounds of challenge to the decision of the UT to refuse leave, there is not a hard and fast demarcation between the exercise of identifying errors of law on the part of the FTT and that of identifying errors of law on the part of the UT.

[16] As to the second point, both in this petition and (as far as I know) in every other petition in which the petitioner complains about the refusal of the UT to grant permission to appeal from a decision of the FTT, the relief sought is simply reduction of that refusal of permission. The petition does not seek review of the original substantive decision by the FTT. Nor is it an application to the court for leave to appeal from that substantive decision. The court hearing the petition for judicial review will not itself grant permission to appeal to the UT. It would not be competent for it to do so. If the court reduces the decision of the UT refusing permission to appeal, the case goes back to the UT for it to consider afresh the application for permission (though it is possible that, depending upon the subject matter of the petition, the court may express views which, to all intents and purposes, predetermine the outcome of that renewed second application). The decision whether or not to grant permission to appeal remains with the UT and not with the court, the role of the court being only to ensure that the UT carries out its gatekeeping function properly and in accordance with the law.

[17] The fact that the petition for judicial review is neither an appeal from the FTT nor an application for permission to appeal from the FTT, and if successful results only in a decree of reduction of the UT's refusal of permission, has in my opinion some important consequences.

 

The two-stage test

[18] It has now been authoritatively stated by the Inner House in SA that, in the light of the guidance given by the Supreme Court in Eba and Cart, a petition for judicial review of a refusal by the UT to grant permission to appeal from the FTT involves two quite separate questions. The first, logically at least, is whether grounds for judicial review are made out. The second is whether, even if such grounds are made out, the Eba test is satisfied. I shall return to the procedural question of how these are to be dealt with, but first I should say something about each of them.

[19] As to the first question, the grounds upon which the court will interfere with a decision of an inferior tribunal are too well established to need elaboration here. They are no different here than in other cases. They include error of law, no distinction now being made between errors which are intra vires and those which are ultra vires. But they are not limited to errors of law. Procedural errors, such as the failure to hear one party, may justify intervention by the court. In SA at para [15] it is said in relation to this first stage, that in order to succeed and before the Eba guidance comes into play, the petition for judicial review "must identify an error in law on the part of the UT". The meaning of that remark is dictated by its context. In a different context the court might easily have added: "or some other basis for judicial review of its decision". I do not understand the inclusion of those words in para [15] of the Opinion in SA (and the omission of those which I have suggested might have been added) as being intended to alter fundamentally the scope of judicial review and confine it to errors of law made by the inferior tribunal as opposed to other reviewable conduct. There is always, potentially at least, scope for judicial review going beyond error of law.

[20] It is only if it is established that there has been an error of law or some other ground for judicial review that the Eba test becomes relevant.

 

The Eba test

[21] The Supreme Court in Cart and Eba made it clear that the court will only interfere by judicial review with a decision of the UT to refuse permission to appeal from the FTT to itself in very restricted circumstances. It laid down a test by analogy with what was known in England as the "second appeal" test: see per Lord Dyson in Cart at para 129. That test is that permission shall not be granted unless "(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": see section 13(6) of the Act and see also s.55(1) of the Access to Justice Act 1999.

[22] There is, of course, a difficulty in applying the second appeal test directly in this situation since, as already indicated, the court hearing a petition for judicial review is not deciding directly whether or not permission to appeal should be granted. It is simply reducing (or setting aside) the refusal of permission. The Supreme Court in Eba and Cart had, therefore, to proceed by way of analogy with the second appeal test. In many cases, where the court is dealing with the first limb of the Eba test, i.e. that the proposed appeal to the UT would raise an important point of principle or practice, it will be necessary for it to identify that point of principle or practice and assess its importance and determine whether it is of sufficient importance to justify an appeal. In such a case it can, in effect, apply the second appeal test directly. So too if it is dealing with the second limb of the Eba test, and decides that there is some other compelling reason why there should be an appeal to the UT against the substantive decision of the FTT, for example because the decision of the FTT is perverse or where the petitioner "has not had a fair hearing at all" before the FTT (illustrations are given by Lord Hope in Eba at para [48]). In such cases the analogy with the second appeal test is close - the court is in effect deciding whether or not permission to appeal should be (or should have been) granted. But in other cases the analogy is less exact. Take a case where the UT in considering an application for permission to appeal has failed to understand or engage with the grounds of appeal and has refused permission to appeal without having given proper consideration to the application. In such cases the complaint in the petition for judicial review is that something has gone seriously wrong with the process at the permission to appeal stage. The failure by the UT to engage with the grounds of appeal has deprived the applicant of his right to have an effective second application for permission. That complaint, if successful, would be a proper basis for reduction of the decision to refuse permission. It satisfies the ordinary judicial review test; and it would (or might) amount to a compelling reason for interference with the decision of the UT so as to satisfy the Eba test. In such a case the court is not saying that there is a compelling reason why the appeal should be heard; it is merely saying that the petitioner has not been given a proper opportunity of persuading the UT that he ought to have permission to appeal from the decision of the FTT: see S v Secretary of State for the Home Department (unreported, 8 March 2013, [2013] CSOH 43). The court in those circumstances may not express any view as to the merits or importance of the points sought to be raised in the proposed appeal - it should not do so, since that is for the UT - but it is satisfied that there is a compelling reason to send the case back to the UT so that a judge of the UT (presumably a different judge) can consider the application for permission afresh.

[23] Neither Eba or Cart, nor SA, was concerned with a case of this sort. I see nothing in those decisions to suggest that judicial review should not be available in such circumstances. The absence of the possibility of judicial review in a case such as that postulated would mean that a failure by the UT to deal properly with the application for permission to appeal would be beyond the supervisory jurisdiction of the court. Nothing in Eba or SA suggests that this could have been intended. But of course the court will be slow to intervene even in such cases. It will require to be satisfied that there is a compelling reason to reduce the decision refusing permission to appeal and send the case back to the UT for it to consider the application afresh.

 

Current practice

[24] Under the current practice a petition for judicial review in this field is appointed to a procedural first hearing: see Practice Note No.1 of 2012. Since SA, it has, as I understand it, become the practice for the question of whether the case satisfies the Eba test to be determined at that procedural first hearing as a preliminary point, in effect as a relevancy point. If it is determined that the Eba test is not met, then the petition is refused there and then. If it is determined that the Eba test is met, then the practice appears to be either to grant the petition and reduce the decision of the UT refusing permission to appeal or to appoint the petition to a substantive first hearing.

[25] This course has much to commend it. Logically, of course, as is pointed out in SA, the first question is whether there is some error of law on the part of the UT or some other basis for judicial review. If so, only then does the Eba question arise. However, in practice it is convenient to consider the Eba point first, because there is no point considering at length the rights and wrongs of the decision by the FTT and the corresponding failure by the UT at the permission to appeal stage if the points sought to be raised on appeal is not sufficiently important to satisfy the Eba test or if there is no other compelling reason justifying reduction of the decision.

[26] The discussion of the Eba test at the procedural first hearing has been regarded, therefore, as a "gatekeeping" exercise. However, it is important to understand what is meant by that. It has become the practice at such hearings for counsel representing the Secretary of State to lodge in process a Note of Argument relating to the Eba test, the greater part of which is in standard terms used for all such hearings. This is a helpful document. However, it seems to me to contain an error as to the significance of the Eba test. In paragraph 1 of that Note of Argument, the Eba test is explained in this way:

"... an unappealable decision of the Upper Tribunal is amenable to judicial review only if either (i) the challenge raises an important point of principle or practice or (ii) there is some other compelling reason for the Court to hear the case."

 

A similar point is made at para 16 in relation to the "compelling reason" limb of the Eba test:

"The petition for judicial review avers that there is a compelling reason for the petition to proceed to a full hearing ..."

 

These statements appear to contemplate that the Eba test is a threshold over which the petitioner must cross in order to be allowed to proceed with his petition for judicial review. This is not correct. There is no leave required to bring a petition for judicial review in Scotland equivalent to that required before judicial review proceedings can be brought in England: see EY v Secretary of State for the Home Department 2011 SC 388 and SA at para [29]. The Eba test is relevant to the grant of the petition. Decree of reduction will not be granted unless that test is met. It is only as a matter of practice that the Eba point is often argued first, for the reasons which I have mentioned.

[27] As noted above, the judge hearing the argument on the Eba test at a procedural first hearing and being persuaded that the case meets the test, will frequently appoint the petition to a (substantive) first hearing, with a time estimate of one day. That was what was done in this case. I was told, however, by counsel, both of whom are very experienced in this field, that in practice the substantive first hearing seldom takes place. This is because, once the Eba point has been decided, the Secretary of State is content that the matter go back to the UT for reconsideration of the application for permission to appeal. I was told that this was the first time that a substantive first hearing in this type of case had in fact taken place.

[28] There is a difficulty, in my view, as to what is to be the subject matter of a substantive first hearing. In theory, at least, it can be seen that the point of law which is sought to be argued on appeal will be assumed to exist, and the court heard that procedural first hearing will simply decide whether, on that hypothesis, it is sufficiently important to meet the Eba test. Similarly, if some other reason is put forward as justifying the grant of permission to appeal by the UT, the court will assume that reason to exist and determine, on that hypothesis, whether it is sufficiently "compelling" to meet the Eba test. But in most cases the exercise is simply unreal. It is, to my mind, virtually impossible to discuss whether appeal raises some important point of principle, or whether there is some other compelling reason why that should be an appeal to the UT, without first having identified how the point arises in the decision of the FTT. If the court at the procedural first hearing decides that it does raise an important point of principle satisfying the Eba test, or that there is some other compelling reason to justify an appeal to the UT, it will do so having understood how the point arises and having formed a view as to whether it exists as a legal point or not. Nothing is to be gained by having a further (substantive) first hearing at which the same arguments will be repeated at greater length.

[29] That is not to say that it will never be appropriate for the court, having decided the Eba point, to appoint the petition to a substantive first hearing. Cases differ, and there is no right answer applicable across the board. However I would respectfully suggest that, before inviting the court to do so, the parties might wish to consider carefully what further arguments are likely to arise at that hearing.

[30] Practice develops with time and experience. My understanding is that the procedural first hearing in an Eba type case usually takes no more than an hour. That is sufficient time to address the Eba question. If, in reality, that discussion is sufficient to dispose of the petition, then the practice of splitting the hearing will have served its purpose. It will have directed parties' attention to the fact that what really matters on a petition of the sort is discussion of whether the Eba test is satisfied. If it is, then it will often be appropriate simply to grant the petition and reduce the decision of the UT refusing permission to appeal rather than appoint the case to a substantive first hearing.

 

The current petition

[31] The current petition came before the court for a substantive first hearing which raised this very question: what more was there to be said?

[32] In its original unamended form first set out (in Statements 1 - 7) the petition set out the background to the application for judicial review in fairly conventional terms. At Statement 8, it quoted verbatim from the decision of the UT judge refusing the application for permission to appeal (see para [9] above). In Statements 9 - 16, the petition set out a complaint, to which I shall refer in more detail, to the effect that the UT judge had not asked himself the right question and, in effect, had not engaged with or given proper consideration to the terms of the application: reliance was placed on S v Secretary of State for the Home Department 2013 CSOH 43. Statements 17 - 20 contained legal submissions as to the way in which the UT judge ought to have approached the matter and narrated the terms of the Tribunals, Courts and Enforcement Act 2007 as well as a passage from Eba, concluding with a statement in Statement 20 that the present case met the Eba test. At Statements 21 - 25 the petition identified a number of legal points arising from the decision of the FTT, each of which, it was said, "is an important point of principle or practice".

[33] In her answers, the respondent, the Secretary of State for the Home Department, in addition to answering the averments and arguments in the petition, tabled a number of pleas in law. The first was a standard plea to relevancy and specification. The second was in these terms:

"2. The petition for judicial review does not raise an important point of principle or practice, or other compelling reason for the Court to hear the case, and, accordingly, should be refused."

 

This was a plea to the effect that the Eba test was not satisfied. The third plea was that any error of law identified in the petition was not material to the outcome of the appeal.

[34] The petition was presented on 22 August 2013. The Lord Ordinary fixed a procedural first hearing to take place on 29 November 2013. That procedural first hearing came before Lord Stewart. The petitioner sought to have the petition appointed to a substantive first hearing. The respondent sought to have the case dismissed on the basis of her second plea in law, i.e. on the basis that the Eba test was not satisfied.

[35] The procedural first hearing resulted in mixed success. A substantive first hearing was fixed, but only in relation to certain parts of the petitioner's case as set out in the petition.

[36] Lord Stewart's interlocutor was in the following terms. Having dealt with various administrative matters, the interlocutor went on to say this:

"Sustains the respondents (sic) second Plea In Law, quoad paragraphs 20 to 25 of the Petition; assigns Friday 7 February 2014 at 10.00 within the Court of Session, Parliament Square, Edinburgh as the date for the First Hearing; ..."

 

[37] That part of the interlocutor requires a certain amount of explanation, and I am grateful to counsel, both of whom appeared before Lord Stewart, for their assistance in understanding what was intended by it. What Lord Stewart was doing by sustaining the respondent's second plea in law in part was, in effect, accepting the respondent's submission that part of the petition failed the Eba test. He refused to appoint that part to a substantive first hearing. In effect, he refused that part of the petition. That is part was identified as being at paragraphs (i.e. Statements) 20 - 25 of the petition. It is apparent from the terms of the unamended petition, and is consistent with both parties' submissions before me, that this should in fact have referred to Statements 21 - 25, since Statement 20 is in general terms and applies both to what has gone before and to what follows.

[38] Both counsel before me agreed that, having sustained the respondent's second plea in law as regards those Statements, Lord Stewart intended to repel that plea in law as regards the remainder of the petition. The interlocutor should be taken as having said this:

"Sustains the respondents second Plea In Law, quoad paragraphs 20 to 25 of the Petition; quoad ultra repels the respondent's second plea in law; ..."

 

Since both counsel were agreed that that was the intention behind the interlocutor, I saw no need for it to be amended. I simply proceed on the basis that Lord Stewart repelled the respondent's plea to the effect that the remainder of the petition failed the Eba test.

[39] Further, counsel were also in agreement that the first limb of the Eba test ("an important point of principle or practice") had no application to the averments in Statements 9 - 16 of the petition which were, as I have said, to the effect that the UT judge had not asked himself the right question and, in effect, had not given any proper consideration to the terms of the application. That was a case which was said to fall within the second limb of the Eba test ("some other compelling reason").

[40] It follows that, in repelling the respondent's second plea in law with regard to the remainder of the petition, in particular paragraphs 9- 6, Lord Stewart is to be understood as having accepted the submission on the part of the petitioner that the circumstances narrated in those paragraphs, which I have summarised in terms of the UT judge asking himself the wrong question and, in effect, failing to give any proper consideration to the application for permission to appeal, amounted to an error of law on the part of the UT judge; and, because it meant that the petitioner had not had an effective hearing of his second application for permission to appeal, it provided a "compelling reason" for reducing the UT judge's refusal of permission to appeal and, in effect, sending the matter back to the UT consider the application afresh.

[41] In those circumstances it seemed to me that there was nothing further to discuss at the substantive first hearing before me. Lord Stewart had decided that the circumstances narrated in the petition, which relied for their force only upon the terms of the refusal by the UT judge to grant permission to appeal (read in the context of the decision of the FTT and the application for leave) amounted to a compelling reason why the decision to refuse leave should be reduced and the case sent back for a UT judge to consider the application afresh. On that basis, there was nothing further to decide.

[42] I therefore granted the prayer of the petition and reduced the decision of the UT judge refusing permission to appeal to the UT.