The Second Appeals Test in Immigration Law
In this post, we explain the Second Appeals test and note some recent developments in the area.
What is the Second Appeals test?
The Second Appeals Test was introduced by s.13(6) of the Tribunals, Courts and Enforcement Act 2007. It sets a higher threshold for challenging certain kinds of decisions made by the Upper Tribunal to the Court of Appeal. The purpose of the test is to emphasise the specialist function of the Upper Tribunal.
The Second Appeals test is reflected in CPR 52.7 which states as follows:
‘(1) Permission is required from the Court of Appeal for any appeal to that court from a decision of … the Upper Tribunal which was made on appeal from a decision of the First-tier Tribunal on a point of law where the Upper Tribunal has refused permission to appeal to the Court of Appeal.
(2) The Court of Appeal will not give permission unless it considers that—
(a) the appeal would—
(i) have a real prospect of success; and
(ii) raise an important point of principle or practice; or
(b) there is some other compelling reason for the Court of Appeal to hear it’ [emphasis added]
When does the second appeals test apply?
As stated above, the Second Appeals test applies to appeals from the Upper Tribunal to the Court of Appeal. At this stage, your case will have been heard by the First-tier Tribunal and the Upper Tribunal. For this reason, the heightened test applies: not only must your case have a realistic prospect of success, it must also ‘raise an important point of principle or practice’. Alternatively, there must be ‘some other compelling reason’ for the Court of Appeal to hear your case.
The Second Appeals test also applies in Cart type judicial reviews. This is where permission to appeal has been refused by the Upper Tribunal, and you wish to challenge that decision. There is no right of appeal against a refusal of permission to appeal (it is an “excluded decision” under s.13(8)(c) of the Tribunals, Courts and Enforcement Act 2007). The only way to challenge the refusal is to apply for permission to judicially review the Upper Tribunal’s decision before the Administrative Court (High Court).
Some other compelling reason
You can satisfy the Second Appeals Test by showing that there is ‘some other compelling reason for the Court of Appeal to hear [your case]’.
The Court of Appeal explained the nature of a ‘compelling reason’ in JD (Congo) v SSHD  1 W.L.R. 3273, stating at §25 that:
‘… 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.’
Hickinbottom LJ has recently provided further guidance on the meaning of a ‘compelling reason’ in the case of Singh v SSHD  EWCA Civ 1504. At §25 he said that:
‘… it seems to me that, although every case must turn on its own facts, it may be a compelling reason to allow a second appeal to proceed where, due to a misinterpretation of the law by the first appeal court/tribunal as recently clarified, there may be a high risk of the applicant’s article 8 rights being infringed’ [emphasis added].
This highlights that a compelling reason for granting permission to appeal may stem from the need to ensure that the law is applied correctly after it has recently been clarified, and where there is a high risk of the applicant’s right to private and family life being infringed.
Contact our Immigration Barristers
For expert advice and assistance in relation to appeals or judicial review, contact our immigration barristers in London on 0203 617 9173 or via our enquiry form.