JD (Congo) & Ors v Secretary of State for the Home Department & Anor

The second-tier appeals test remains more stringent than the ordinary requirement of a real prospect of success. Under its compelling-reason limb, the court must evaluate all the circumstances. A sufficiently serious legal challenge may combine with extreme consequences for the individual to justify a further appeal.

Success in the First-tier Tribunal followed by defeat in the Upper Tribunal, or the Upper Tribunal's remaking of a decision set aside for legal error, is relevant but never sufficient by itself. The court must examine whether there have, in substance, been two levels of judicial consideration. The Upper Tribunal need not remit a case merely to avoid the second-tier test.

Four applicants sought permission to appeal from decisions of the Upper Tribunal in immigration and asylum proceedings. JD, WN and MR had succeeded before the First-tier Tribunal, but the Upper Tribunal set those decisions aside and dismissed their appeals. ES had lost before the First-tier Tribunal; that decision was set aside in its entirety before the Upper Tribunal reheard and dismissed the appeal.

The applications raised how the second-tier appeals test applies where tribunal decisions conflict, or where the Upper Tribunal has effectively supplied the only proper judicial consideration. They also raised whether cases should be remitted to the First-tier Tribunal and whether an Immigration Judge's sitting as a Deputy Judge of the Upper Tribunal affected the test.

1. Disposition. Permission to appeal was granted to JD, WN and ES, but refused to MR. The judgment was authorised for citation only for its statements of principle concerning the second-tier appeals test, not its treatment of the applicants' individual facts.
2. The compelling-reason limb is stringent but flexible. A real prospect of success does not suffice. The proposed challenge must have a sufficiently serious legal basis, the required strength depending on all the circumstances. A strongly arguable legal error may combine with extreme consequences for the individual to constitute a compelling reason. Extreme consequences alone are insufficient. The approach in PR (Sri Lanka) [2011] EWCA Civ 988 was consistent with R (Cart) v Upper Tribunal [2011] UKSC 28.
3. The fact that an applicant succeeded before the First-tier Tribunal but lost before the Upper Tribunal, or obtained the setting aside of an adverse decision before losing on remaking, is relevant but is not itself compelling. The court must examine the provenance of the appeal and whether there have, in substance, been two levels of judicial consideration. Relevant matters include why the earlier decision was set aside, whether its factual findings were preserved, and whether the Upper Tribunal decided a new legal issue.
4. Tribunals, Courts and Enforcement Act 2007, section 12(2), gives the Upper Tribunal a broad choice between remission and remaking after it sets aside a First-tier Tribunal decision. The published practice favouring remaking, save where unfairness or highly compelling reasons require remission, was lawful and promoted fair, prompt and efficient adjudication. Avoiding the second-tier test was not a reason to remit.
5. The composition of the Upper Tribunal did not itself supply a compelling reason. Baroness Hale's reference in Cart to a more experienced second judge concerned the levels of an appellate structure, not scrutiny of an individual Deputy Judge's qualifications. Ordinarily, the quality and arguable legality of the decision matter; the decision-maker's qualifications do not, absent a rare challenge to compliance with statutory appointment criteria.

1. Court of Appeal (Civil Division): On four applications governed by the second-tier appeals test, permission to appeal was granted to JD, WN and ES and refused to MR: [2012] EWCA Civ 327 .
2. Upper Tribunal (Immigration and Asylum Chamber): The favourable First-tier Tribunal decisions concerning JD, WN and MR were set aside for material errors of law and their appeals were dismissed on remaking. ES's adverse First-tier Tribunal decision was set aside in its entirety, but his appeal was dismissed after the Upper Tribunal remade the decision.
3. First-tier Tribunal: JD, WN and MR succeeded in their appeals. ES's appeal was dismissed.