How to interpret decisions on permission to appeal

The recent case of Safi and others (permission to appeal decisions) [2018] UKUT 388 (IAC) provides helpful guidance on interpreting the scope of decisions in which permission to appeal from the First-tier to the Upper Tribunal is granted. The headnote states:

(1) It is essential for a judge who is granting permission to appeal only on limited grounds to say so, in terms, in the section of the standard form document that contains the decision, as opposed to the reasons for the decision.

(2) It is likely to be only in very exceptional circumstances that the Upper Tribunal will be persuaded to entertain a submission that a decision which, on its face, grants permission to appeal without express limitation is to be construed as anything other than a grant of permission on all of the grounds accompanying the application for permission, regardless of what might be said in the reasons for decision section of the document.

The reason for this first principle is that permission to appeal to the Upper Tribunal can be granted on “any point of law arising from a decision” (section 11(1) of the Tribunals, Courts and Enforcement Act 2007). Permission can be granted (on all grounds) even where the granting judge does not consider that the First-tier Tribunal has made an arguable error of law, “if the point of law in question is, in the granting judge’s view, of such significance as to make it desirable for the Upper Tribunal to become seized of the matter” (Safi [31]).  It follows that a judge could formally grant unrestricted permission, even if she considered particular grounds might not in themselves be sufficiently arguable.

This guidance in the first principle follows from that of the Court of Appeal in Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2. Where the grant of permission is unqualified in the opening part of the Order, but there is ambiguity arising from the language of the Reasons, such ambiguity is to be resolved in favour of the applicant [77]. It was also found to be ‘good practice’ to include the limitation of grounds in the actual grant section of the Order [80].

The Upper Tribunal has now held that, it is not merely good practice but rather, it is essential for judges of the First-tier or Upper Tribunal to explicitly limit grounds in the “Notice of Decision” section of the Order by saying something akin to ‘Permission is granted, limited to grounds 1 and 4’ or ‘Permission is granted on grounds 1, 2 and 3 but is refused on grounds 4 and 5’ (Safi [43]).

The “Reasons for Decision” section of the Order, must be just that: clearly identified ‘reasons for the decision which has just been made’ in accordance with the judge’s duty under the Tribunal Procedure Rules (34(4)(a) for the First-tier and 22(1) for the Upper Tribunal) and ‘must not include any words that are intended to form part of the decision’ (Safi [44] (original emphasis)).  Judges who do provide a general grant of permission may also make observations as to the merits of other grounds in the “Reasons” section. For example, stating that particular grounds were not in the judge’s opinion of sufficient arguable merit to grant permission on the ground alone helps direct parties to those grounds which are considered to have arguable merit.

As to the second principle in the headnote, Safi does not clarify or provide examples as to what would constitute the “very exceptional circumstances” to which it refers. However, it is now clear that if on the face of the “Decision” section permission is granted unconditionally, even if contradicted by the “Reasons” it will be “highly likely” (Safi [46]) that the Upper Tribunal will deem permission granted without limitation.

This clarification from the Upper Tribunal is welcome. It is only reasonable (and in the overriding objective) that decisions for permission to appeal can be understood by the parties and the tribunal/court, without the need for judicial interpretation.

Contact Our Immigration Appeal Barristers

For advice or assistance with making an application for permission to appeal to the Upper Tribunal or for representation at an appeal hearing, contact our immigration barristers and lawyers  in London on 0203 617 9173 or through our online enquiry form.