FA (Iraq) and PD (India) v SSHD

The second-appeal criteria apply only where the Upper Tribunal decision is itself a decision on an appeal from the First-tier Tribunal under section 11 of the Tribunals, Courts and Enforcement Act 2007. A transitional provision treating an outstanding Asylum and Immigration Tribunal reconsideration as an appeal to the Upper Tribunal does not, without express or necessary implication, convert the original AIT decision into a First-tier Tribunal decision. Such cases remain first appeals to the Court of Appeal. At the permission stage, an apparent demand for a more convincing explanation may arguably disclose an excessive standard of proof, and credibility reasoning must be assessed with relevant expert evidence and country conditions.

These were two applications for permission to appeal arising from the transition from the Asylum and Immigration Tribunal to the First-tier and Upper Tribunals under the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010. FA’s AIT appeal was dismissed on reconsideration dated 11 February 2010, signed before but served after the transfer date. PD’s appeal, initially allowed, was reconsidered after the transfer date and dismissed. The central issue was whether the second-appeal criteria in the Appeals from the Upper Tribunal to the Court of Appeal Order 2008 applied, and whether either appellant otherwise showed an arguable error of law.

1. Disposition. FA’s application for permission to appeal was granted on all grounds in the notice of appeal. The Secretary of State accepted that permission should be granted and that, on the narrower conceded ground, the appeal should be allowed and remitted because insufficient attention had been given to the interests of a child with severe Down’s syndrome. PD’s application for permission to appeal was refused.
2. Second-appeal criteria. Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 permits the criteria to be imposed only on an application under section 13(4) falling within section 13(7). Section 13(7) concerns permission to appeal from a decision of the Upper Tribunal on an appeal under section 11. Section 11(1) provides for an appeal to the Upper Tribunal on a point of law from a First-tier Tribunal decision. The criteria therefore apply only where the Upper Tribunal has decided an appeal from the First-tier Tribunal.
3. Transitional proceedings. The single-tier scheme established by the Asylum and Immigration (Treatment of Claimants) Act 2004 distinguished an appeal from reconsideration by the same AIT. Schedule 4 to the Transfer Order treated a pre-transfer reconsideration order as permission to appeal to the Upper Tribunal, or continued an existing reconsideration as an Upper Tribunal appeal. It did not deem the original AIT decision to be a First-tier Tribunal decision for section 13(6). The express deeming provision in paragraph 13(3), and the provision concerning continuing directions and orders in paragraph 14(4), did not alter that conclusion. The second-appeal criteria consequently did not apply to any of the transitional categories identified.
4. Individual applications. In FA, the search for a more convincing explanation for the husband’s continued employment arguably applied too high a standard of proof. The reasoning had to be considered with the expert evidence explaining the relative safety of the hotel and the conditions in Iraq. In PD, the risk findings were based on speculation and lacked cogent evidence. The conclusion that low-caste widow discrimination did not amount to persecution, and that relocation was unnecessary, disclosed no arguable error of law.
5. Guidance. Lord Justice Sullivan declined to give general guidance on applying the second-appeal criteria because they were inapplicable. Sir Mark Waller agreed, observing that future cases should ask whether the Upper Tribunal decision was itself on appeal from a First-tier Tribunal decision.

• Court of Appeal (Civil Division): Held that the second-appeal criteria did not apply to either application. FA was granted permission to appeal; PD was refused permission.
• Asylum and Immigration Tribunal and transitional Upper Tribunal proceedings: FA’s initial appeal was dismissed, reconsideration was ordered, and the reconsideration determination dated 11 February 2010 again dismissed the appeal. PD’s initial appeal was allowed, reconsideration was ordered, and the determination dated 22 February 2010 set aside the earlier decision and dismissed the appeal.