The government wants to make it much harder to appeal from the tribunal system to the Court of Appeal. The Ministry of Justice is consulting on changes — sorry, “reforms” — where appeals that have already been heard in both the First-tier and Upper Tribunals in England and Wales would need “reasons of exceptional public interest” to be heard at the next level up. It is also proposing tighter rules on appeals in judicial review cases. The government estimates that the two changes would cull around 600 cases a year from the Court of Appeal’s books.

Background: the law on permission to appeal

Some context for the non-lawyers in the room. Migrants have the right of appeal to an immigration judge against certain Home Office immigration decisions — such as to refuse asylum, for example. The case will first go to the First-tier Tribunal. A First-tier Tribunal judge’s decision can be appealed to the Upper Tribunal. A decision of the Upper Tribunal can be further appealed to the Court of Appeal (in England, Wales and Northern Ireland — in Scotland it’s the Court of Session).

Getting a case that has already been considered by two different immigration judges heard by the Court of Appeal requires permission. The would-be appellant first asks the Upper Tribunal for permission to appeal from its own ruling. If the Upper Tribunal says no, appellants can go over its head, directly to the Court of Appeal, and ask it for permission to appeal. So there are two bites of the cherry.

The legal test for permission to appeal is the same in both cases. Permission will not be granted:

unless the Upper Tribunal or [the Court of Appeal] 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.

This is known as the “second appeals test” and is set out in section 13(6) of the Tribunals, Courts and Enforcement Act 2007.

Tightening the rules in England and Wales

The consultation proposes a stiffening of the legal test from “important point of principle or practice” to “reasons of exceptional public interest”. This would apply where the Court of Appeal is deciding whether to grant permission; it seems that the Upper Tribunal would continue to apply the existing test.

All tribunals feeding into the Court of Appeal, from Social Entitlement to Tax, would be affected but the Immigration and Asylum Chamber appears to be the real target. The consultation document talks about “misuse of the system”:

In 2019, out of the 561 permission to appeal applications determined in the Upper Tribunal (Immigration and Asylum Chamber) at the second appeals stage, only 92 of these were granted (which represents 16 percent). However, the numbers of cases [sic] that were granted permission and succeed[ed] at the substantive appeal stage was only 27 cases.

These statistics are not necessarily a surprise given the wording of the existing second appeals test: it is supposed to be difficult to get a hearing in the Court of Appeal. Nevertheless the government considers that Court of Appeal judges are wasting their time wading through “hopeless challenges” and says it wants to cut their workload.

A separate change is proposed for judicial review cases, which begin life in the Upper Tribunal rather than coming up from the First-tier. The government worries that “the judicial review process may in some cases be subject to abuse”, again with reference to immigration and asylum cases. It essentially wants to stop judicial review applications certified as “totally without merit” from getting to the Court of Appeal at all. It would no longer be possible to apply to the Court of Appeal for permission to appeal a judicial review deemed totally without merit. Instead, a second Upper Tribunal judge would review the case “for a reconsideration of whether or not to grant permission”.

Taken together, these changes are expected to reduce case volumes in the Court of Appeal by between 598 and 624 cases a year. This is a rough estimate, largely based on the volume of immigration cases that are “flagged”, ie “recorded in monthly meeting[s] as those with high media profiles and permissions to appeal which raise a significant point of law”. These are taken as a proxy for the sort of cases that would satisfy the beefed-up second appeals test under the new regime.

Although the purported rationale for the changes is to rescue an overwhelmed Court of Appeal, the actual judicial time savings are estimated at the equivalent of one full-time judge.

And in Scotland

These two changes would apply only to England and Wales, but a third measure drags in Scotland. In that jurisdiction, the Upper Tribunal can grant permission to appeal against its own decisions if there is a mere “arguable point of law”, whereas the Court of Session applies the stricter “important point of principle or practice” test. The consultation describes this as an “anomaly” and proposes that the test be standardised: the Upper Tribunal should apply the normal second appeals test as well.

This is a bit rich: the proposals for England and Wales described above would mean the Upper Tribunal and Court of Appeal applying different tests to the question of permission to appeal. In the same breath, the government is saying that such a situation is an undesirable anomaly in Scotland. In both cases, however, the effect is to reduce rights of appeal to the higher courts in immigration and asylum cases.