JD (Congo) and Others v SSHD

JD (Congo) WN (Gambia) ES(Iran) MR (Bangladesh)  v Secretary of State for the Home Department [2012] EWCA Civ 327

By section 13(6) of the TCEA 2007, and the 2008 Order, permission to appeal to the Court of Appeal  is not to be granted unless a proposed appeal would raise some important point of principle or practice, or that there is some compelling reason for the Court of Appeal to hear the case.  This is known as the ‘second tier appeals test’, and is something JCWI campaigned against in the past.

This case before the Court of Appeal  looked at how the ‘compelling reason’ head of the ‘second-tier appeals test’ applies in two different scenarios.  The first is where appellants succeed before the First Tier Tribunal, but proceed to fail in the Upper Tribunal following a successful appeal by the SSHD.  The second is where the appellants fail twice in the tribunals system but the original FTT adverse decision is set aside because it contains a material error in circumstances where the UT goes on to remake the decision and dismiss it at appeal.


1.Whilst the ‘compelling reasons’ test is a stringent one, it is sufficiently flexible to take into account the particular circumstances of a case. Those circumstances could include the fact that an appellant has succeeded before the FFT, and failed before the UT, or the fact that the FTT’s adverse decision has been set aside, and the decision remade by the UT.

2. Where the circumstances listed in para.1 above apply, those circumstances will not, in themselves fulfil the ‘compelling circumstances’ limb of the second tier appeals test. They are merely relevant factors to be taken into consideration.

3. In the absence of a strongly arguable error of law on the part of the UT, extreme consequences for the individual could not in themselves amount to a freestanding compelling reason, however they are relevant factor to be taken into consideration.

4. The issue concerning the threshold for a second appeal- i.e.  how much higher, and strongly arguable the legal grounds for challenge must be than in the case  of an ordinary appeal will  depend  on the particular circumstances of an individual case and include the above.   However ‘ 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’.

5. Where the UT set aside the FTT’s decision to dismiss an appeal on the ground that it contains a material error of law, and exercises its discretion to remake the decision, the second tier appeals test applies to the UT’s decision a slightly less demanding standard may be appropriate. As such 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. At para. 31  the Court explains this in the following terms:

 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.

6.  In 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 decision because it contains no arguable error of law it will be much harder to pursued the Court that the legal basis for challenging the UT’s decision is sufficiently strong and the consequences are so extreme as to amount to compelling reason (for permission to appeal or to apply for judicial review)

7. There is nothing unlawful or for that matter undesirable  about the UT remaking a decision rather than remitting a case to the FTT for reconsideration in the light of s.12(2) of TCEA 2007 and the associated Practice Statements/Directions, and therefore  the second tier test in such circumstances will apply on the above terms.

8. The qualifications or experience of decision makers in the Upper Tribunal will not be relevant factor save where it is contended that the statutory criteria for appointment as a Deputy Judge of the UT are not met.

JCWI is running a training course on appeals In June 2012. For full details of courses please look at our website.

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

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