Compelling reasons but no need for truly drastic circumstances: second stage immigration appeals revisited

23 March 2012 by Isabel McArdle

JD (Congo)  and others v Secretary of State for the Home Department, Public Law Project [2012] EWCA Civ 327

The Court of Appeal has considered the test for granting permission at the second stage of appeal in immigration cases, when someone wishes to appeal from the Upper Tribunal to the Court of Appeal. The test requires showing 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.”
But these test cases were of special interest, because they involved situations where the appellant has succeeded before the First-Tier tribunal but failed in the UT after the Secretary of State’s appeal succeeded, or where the appellant was unsuccessful at both levels, but the FTT had made a material error of law and the UT made the decision afresh. Previous authority showed no clear approach in these circumstances. The Court stressed that the test for permission at the second stage of appeal is higher than the first stage test.

Sullivan LJ, reading the Court’s judgment, said at paragraph 22:

...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.”

The examples of Lord Dyson, in the case of Cart v the Upper Tribunal [2011] UKSC 28 were,

… (i) a case where it is strongly arguable that the individual has suffered … “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.

Sullivan LJ went on at paragraph 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.”

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