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What is a ‘Compelling Reason’ for a case to be heard? By Brian Naumann (20 December 2011)

Date: 20/12/2011
Duncan Lewis, Immigration Solicitors, What is a ‘Compelling Reason’ for a case to be heard? By Brian Naumann

The second-tier appeal test -Extract from PR (Sri Lanka) [2011] EWCA Civ 988:

‘The Access to Justice Act 1999 introduced important changes to the procedure governing appeals to the Court of Appeal. Section 54 dealt with permission to appeal in general, providing statutory authority for a requirement for permission to appeal to be introduced by rules of court. Section 55 contained a specific test for "Second Appeals" in the Court of Appeal, under which, where a decision on an appeal has been made in the county court or High Court– "no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that:

a. the appeal would raise an important point of principle or practice; or

b. there is some other compelling reason for the Court of Appeal to hear it."

This stricter test is to be contrasted with the normal test for appeals to any court, introduced under section 54 by CPR Part 52.3(6): Permission to appeal may be given only where—

(a) the court considers that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard."’


The main difference here is noticeably that an appeal which may have a real prospect of success (i.e. there may be readily identifiable arguable material errors of law) may still fail to meet the test since an appeal can be strongly arguable, but not raise an important point of principle of practice, with the resulting need to demonstrate that there is some other ‘compelling reason’ why the case must be heard.

Duncan Lewis has several appeals which have been successful at first instance, but where the Upper Tribunal has overturned the decision on appeal to the Upper Tribunal without adequate explanation. Three of these cases are in the Court of Appeal right now, two of which have permission hearings imminently, namely TN (Cameroon) C5/2011/1706, and JD (DRC) C5/2011/2009 at the end of January.

What is apparent is that the Court of Appeal at present is reluctant to grant permission on account of the second appeals test, even where, as in the two cases above, the decision refusing permission simultaneously states that there are arguable errors of law in the determinations. On the grounds submitted in TN, the Rt. Hon. Sir Richard Buxton stated that the Upper Tribunal had arguably erred in two respects. Firstly, he found that was arguable that the Upper Tribunal had erred in holding that the First Tier decision was inadequately reasoned. Secondly, he found that the Upper Tribunal had also potentially erred in failing to apply established principles. In the case of JD, we have a similar situation in that Lord Justice Carnwath confirmed there was an arguable issue as to whether or not the Upper Tribunal was entitled to find an error of law in the First Tier Tribunal decision. The question therefore needs to be asked: ‘If an Appellant has been successful initially in his or her appeal, can that on its own or in combination with a strong prospect of success[1] (i.e. the presence of arguable material errors of law) amount to a ‘compelling reason’ for the appeal to be heard?’

JD has been considered by Lord Justice Carnwath as suitable for guidance on this issue, and has been listed to be heard alongside WN (Gambia) C5/2011/2201, but he has not indicated that he considers the issue to be to whether or not an initial successful decision would contribute to a ‘compelling reason’ but rather whether or not the actual second appeal criteria are applicable to such a case. TN (Cameroon) has been adjourned pending the outcome in JD.

It may very well be arguable that the second appeals test should not be applicable, since if the Upper Tribunal has gone on to re-decide the appeal, it has in essence sat as a tribunal of first instance. The same argument can be put forward to argue that there is a compelling reason for the appeal to be heard, and indeed this was touched upon by Lady Hope in Cart[2]:

‘A slightly less demanding standard may be appropriate where there has been only one level of judicial consideration... there is room for some flexibility... in the overall evaluation of a ‘compelling’ reason.’

Clearly, the strict nature of the second appeals test as it is, is not adequate to address situations where an Appellant has won his appeal, and unjustly had the decision reversed in the Upper Tribunal. It simply can’t be fair to require that an appeal at that stage raise an important principle or be of wider importance to allow an Appellant permission to appeal his or her recognized arguable errors of law. If the situation remains as it is, judicial decision making in the Upper Tribunal is arguably immune from scrutiny and errors in the Upper Tribunal can therefore go unchecked.

Will Lord Justice Carnwath consider these types of appeals as compelling or will he decide that the test should not apply? We’ll have to wait and see.


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