The ‘Second-Tier Appeals Test’: Objective or Subjective?
The ‘Second-Tier Appeals Test’, introduced to emphasise the authority of the Upper Tribunal as a specialised appellate court, is a provision which Appellants seeking to appeal to the Court of Appeal from the Upper Tribunal often overlook. It is, however, an important consideration when examining the merits of such as an appeal.
The Second Appeals Test was introduced by s.13(6) of the Tribunals, Courts and Enforcement Act 2007 which makes no provision for leave to appeal from the Upper Tribunal to the Court of Appeal:
[U]nless the Upper Tribunal or (as the case may be) the relevant appellate court considers—
(a) that the proposed appeal would raise some important point of principle or practice, or
(b) that there is some other compelling reason for the relevant appellate court to hear the appeal. [emphasis added]
The impact of s.13(6) is that consideration of an application for permission to appeal from the Upper Tribunal to the Court of Appeal involves a two-stage analysis:
- Firstly, consideration is given to whether there is an arguable case that the Upper Tribunal has made a material error of law; and
- Secondly, consideration is given to whether or not the appeal either raises an important point of principle or practice or there is another “compelling reason” for the Court of Appeal to hear the case.
The question of how “compelling reason” is to be defined within the context of s.13(6) of the Tribunals, Courts and Enforcement Act 2007 has arisen in two Court of Appeal decisions: PR (Sri Lanka) & Ors v. Secretary of State for the Home Department  EWCA Civ 998and JD (Congo) & Ors v. Secretary of State for the Home Department  EWCA Civ 327.
PR (Sri Lanka) examined the Second-Tier Appeals Test in the context of Appellants whose cases have failed before both the First Tier Tribunal and the Upper Tier Tribunal. The Court of Appeal defined ‘compelling circumstances’ objectively as opposed to subjectively, finding that the impact of the outcome on the individual Appellant is not determinative:
“The question is not, therefore, whether the nature of the asserted claim would, if its factual basis were established, risk drastic consequences, but whether there is a compelling reason why the issue on which the claimant has failed twice should be subjected to a third judicial process. The two tiers of the Tribunal system are, and are plainly to be regarded as, competent to determine matters of this kind, and there is no case for saying that the United Kingdom would be in breach if its international obligations, if the decisions of the Upper Tribunal are only amenable to appeal in very restricted circumstances. In short, there is no case for contending that the nature of an asylum-seeker's case which has failed twice in the Tribunal system is a compelling reason for giving permission for a further appeal” [at para. 41].
In JD (Congo) the Court subsequently moved away from a purely objective test, towards a more subjective analysis:
“As we read the judgment inPR, the Court was emphasising the fact that, in the absence of a strongly arguableerror of lawon the part of the UT, extreme consequences for the individual could not, of themselves, amount to a free-standing "compelling reason” [at para. 26].
The question before the Court in JD (Congo) was how the Second-Tier Appeals test applied where the Appellant had at some stage succeeded before the Tribunal (for example where they had been successful in the First Tier Tribunal before having that decision set-aside and their appeal dismissed by the Upper Tribunal). In this context the Court held that there is a “level of flexibility” inherent in the Second-Tier Appeals Test due to the fact that regard must be given to the particular circumstances of the case; as such the procedural history of an individual case is relevant to determining whether compelling reasons exist. The examples given by the Court, endorsing this more subjective approach, were as follows:
“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” [at para. 31].
JD (Congo) thus refines PR (Sri Lanka) by taking a more subjective approach to ‘compelling reasons’; limited weight can be given to the effect of a wrongful determination on the Appellant and greater weight should be given to the procedural history of the individual case.
For advice on appealing against a decision of the Upper Tribunal and the Second Appeals Test, contact our immigration barristers on 0203 617 9173 or by email to email@example.com.