UPDATED AND REVISED

Judgment was handed down this morning by the Court of Appeal in a test case on the nature of the second appeals test in immigration and asylum cases. The case name is JD (Congo) & Ors v Secretary of State for the Home Department & Anor [2012] EWCA Civ 327. Paragraph 709 of the Bar Code of Conduct forbade me from expressing personal opinion in this case at the time it was handed down and a colleague never quite got round to writing it up, frustratingly. At the time, I merely quoted directly from the judgment of Sullivan LJ:

22. We accept Mr. Beloff’s submission on behalf of PLP that it is important not to lose sight of Lord Dyson’s warning that “Care should be exercised in giving examples of what might be ‘some other compelling reason’ because it will depend on the particular circumstances of the case”.  Undue emphasis should not be laid on the need for the consequences to be “truly drastic”.  Lord Dyson was expressly giving two, non exhaustive, examples.  However, the second of his examples makes it clear that very adverse consequences for an applicant (or per Baroness Hale, the “extremity of consequences for the individual”) are capable, in combination with a strong argument that there has been an error of law, of amounting to “some other compelling reason.”

23. While the test is a stringent one it is sufficiently flexible to take account of the “particular circumstances of the case.” It seems to us that those circumstances could include the fact that an appellant has succeeded before the FTT and failed before the UT, or the fact that the FTT’s adverse decision has been set aside, and the decision has been re-made by the UT.  Where they apply, those circumstances do not, of themselves, amount to “some other compelling reason”, but they are capable of being a relevant factor when the court is considering whether there is such a reason.  In Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070  Dyson LJ (as he then was) said that “anything less than very good prospects of success will rarely suffice” for the purposes of the second-tier appeals test.  However, he recognised that there “may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not high”: see the passages from Uphill cited in paragraph 8 of PR.  Dyson LJ did not refer to the kind of circumstances with which we are concerned in these applications.  That is not surprising, the Court in Uphill was not considering a case where the applicant for permission to appeal had succeeded at first instance but had failed at the first level of appeal.  The defendant had failed before both the District Judge and the County Court Judge.  Since Lord Dyson referred to Uphill and other authorities in his review of the earlier cases in Cart, it is appropriate to take his reference to the need for there to be a “strongly arguable” error of law as a synthesis of those earlier authorities.

The actual second appeals test itself originates in section 13(6) of the Tribunals, Courts and Enforcement Act 2007:

(a) the proposed appeal would raise some important point of principle or practice; or

(b) there is some other compelling reason for the [Court of Appeal] to hear the appeal.

The introduction of the test meant that it was no longer sufficient for there merely to be an error of law for one to appeal a decision of the Upper Tribunal to the Court of Appeal, the additional hurdle of the second appeals test must also be met.

Other key cases include PR (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 988 (which JD Congo supersedes or “clarifies” to some extent) and Re B (A Child) [2009] EWCA Civ 545 in which Wall LJ raised the possibility that decisions affecting children might engage the “other compelling reason” leg of the test:

It may also be the case – we did not hear argument on the point and have reached no concluded view – that the effect of a decision relating to the welfare or future upbringing of a child may itself constitute a compelling reason for hearing a second appeal. The importance of such decisions for the children and adults concerned cannot be over-emphasised. Moreover, the fact that two courts have reached different conclusions may (a word we emphasise) reinforce the justification for hearing the appeal.