Duncan Lewis was instructed in the lead case of JD (Congo) & Ors v Secretary of State for the Home Department  EWCA Civ 327 in which the Court of Appeal considered, and provided guidance on, the ‘Second Appeals Test.’ Specifically, the court has dealt with the second limb – i.e. what factors are to be taken into consideration in deciding whether or not there is a compelling reason for a case to be heard. The court has confirmed that the following can be taken into account:
?That there is a sufficiently serious legal basis for challenging the [IAC Chamber] Upper Tribunal’s decision (Paragraph 26)
?The extremity of the consequences of the Upper Tribunal's allegedly erroneous decision for the individual seeking permission to appeal from that decision. (Paragraph 27)
?Whether or not there has been, in substance only one level of judicial consideration, and to that end:-
¦The reason why the First Tier Tribunal's decision was set aside (Paragraph 30)
¦The extent to which it was possible to preserve the findings of fact of the First Tier Tribunal (Paragraph 31)
In summary, the court has decided that where an Appellant wins in the First Tier Tribunal (as in our client’s case), this is not sufficient on its own to constitute a ‘compelling reason’ for a case to be heard. The court will however take into account the particular circumstances of each case in deciding whether or not there is a compelling reason for a case to be heard, which could include the fact that an appellant has succeeded before the First Tier Tribunal and failed before the Upper Tribunal. (Paragraph 23). If there is a sufficiently serious legal basis for the challenge then that is to be considered alongside the consideration of the extremity of the consequences of the allegedly wrong decision. Our client, JD was successful in obtaining permission to appeal.