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Second appeal criteria tighter than expected


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Mark Symes has posted an article over at the HJT Immigration Blog on a new case from the Court of Appeal on the ‘second appeal criteria’. The case is PR (Sri Lanka) & Ors v Secretary of State for the Home Department [2011] EWCA Civ 988. These criteria are the legal gateway not only to the Court of Appeal on appeal from the Upper Tribunal but also, following Cart and Eba, also to judicial review of the Upper Tribunal.

The criteria are:

(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.

Mark writes that the Court of Appeal concludes as follows:

“[T]here 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. So, what is ruled out post PR? Certainly the Court does not accept that the question whether an established point of principle or practice has been properly applied in an individual case itself raises an important point of principle or practice. Thus it would not be a sensible use of judicial resources for judges to replicate the assessment of evidence in an individual case within the context of a Country Guidance determination or a Strasbourg Court authority. On the other hand, permissible challenges would include those identified in Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60: where the first decision was “perverse or otherwise plainly wrong”: importantly, an example of being “plainly wrong” is where the decision is “inconsistent with authority of a higher court” (at least where such authority was referred to by the Applicant’s legal team). Alternatively a procedural failure in the Upper Tribunal might make it “plainly unjust” to refuse a party a further appeal. The prospects of success must be very high, save for in the cases of procedural irregularity (see Uphill at [24]).”

There is a HJT Training half day conference on judicial review of and in the Upper Tribunal on 28 September 2011 at which this and other subjects will be discussed in more depth. Click here for more details.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.