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Reported Case

New Guidance from the Tribunal President in Safi & Ors: reasons must be given for decisions on permission (25 January 2019)

Date: 25/01/2019
Duncan Lewis, Reported Case Solicitors, New Guidance from the Tribunal President in Safi & Ors: reasons must be given for decisions on permission

As the Hon Mr Justice Lane noted from the outset, the legal proceedings that have resulted from the hijacking of an aircraft from Afghanistan to the UK in February 2000 ‘have been both various and protracted’. He regretted that the current hearing, Safi & Ors (permission to appeal decisions) [2018] UKUT 388 (IAC), had been necessary as it had caused further delay in the resolution of the cases which have been on-going for the best part of two decades.

There was, however, an important question to be answered; namely, when a judge of the First-tier Tribunal grants permission for onward appeal and expresses an opinion on the merits of the grounds but does not expressly limit the grant, what is the scope of the grant of permission?

In this case, the nine Appellants, having succeeded before the First-tier Tribunal in establishing that they were at risk of serious harm if returned to Afghanistan, wished to appeal their exclusion from the Refugee Convention. An exclusion from the Refugee Convention would result in a severely limited grant of leave to remain of 6 months at a time with restrictions on employment and residence.

The exclusion was based on the belief that there were serious reasons for considering that they had committed a serious non-political crime, that of hijacking, before they claimed asylum. Eight of the appellants appealed on 4 grounds, including:

  1. Having been acquitted of the crime of hijacking by the Court of Appeal in 2003 they could not be excluded for having committed a serious crime;

  2. Since the reason they left Afghanistan was to escape persecution by the Taliban, the Tribunal had misdirected itself in relation to the law of duress;

  3. They feared the Talban because they were participants in a democratic political organisation and so any action could not be said to be non-political;

  4. The passage of time since the events in question meant exclusion was no longer appropriate.

The ninth appellant appealed on a fifth ground which related to his medical conditions.

When deciding permission on 18 January 2018, UT Judge Martin, while stating that permission was granted, also expressed views in the body of the decision in relation to the positive and negative merits of three of the grounds. The appellants took the view that as permission had been granted and no detailed reasons had been given for any limitation on the grant, the grant of permission should be interpreted as unrestricted. There was support for this because of the failure to mention the other grounds of appeal pleaded and the failure to give reasons for refusal. In addition, the case of SSHD v Rodriguez [2014] EWCA Civ 2 made it plain that if there was ambiguity in the reasons for a grant of permission, it was to be resolved in favour of the appellant.

At the hearing on 12 October 2018 the President confirmed that the grant of permission was unrestricted in this case and gave the following guidance:

  • It is unacceptable for a decision on permission to be unclear in its terms.

  • Rule 34 of the Tribunal Procedural (First-tier Tribunal) Rules 2014 makes it plain that when receiving an application for permission, the Tribunal must make a decision either to review the initial decision, or make a decision on permission to appeal (34(2))

  • If it decides to refuse permission, reasons must be given together with notice of onward appeal rights. (34(4 a) and b))

  • He was unpersuaded by the utility of granting permission on limited grounds but if permission was to be limited, it was essential that a judge doing so stated so in terms. The place to note this was in the top section of the form that contains the decision.

  • ‘Thus. Permission granted on limited grounds should state “Permission is granted, limited to grounds 1 and 4” [paragraph 43]

  • ‘The “reasons for decision” section is to be construed as just that… The reasons for decision must not include any words that are intended to form part of the decision… It is the place where the reasons for refusing permission… should be stated’. [44]

  • ‘The reasons section is also the place where if and insofar permission is being granted, the reasons for doing so are “clearly identified”.' [45]

  • ‘Henceforth, it is likely to be only in very exceptional circumstance 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 the grounds accompanying the application for permission.’[46]

The case remains on-going; however this new guidance does serve to clarify that reasons must be given for decisions on permission by the First-tier Tribunal including clear limitations on the scope of any grant permitted.

Zofia Duszynska is acting for the first 8 appellants with Duran Seddon and Peter Jorro of Garden Court Chambers; Surinder Matharu of Hammersmith & Fulham Law Centre and Christopher Jacobs of Landmark Chambers act for the ninth appellant.

 

Find full details of this case on Bailii’s website here.
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