Amir, R (on the application of) v Secretary of State for the Home Department

Judicial review of a refusal by the Upper Tribunal to grant permission to appeal is available only on the stringent second-tier grounds: an important point of principle or practice, or some other compelling legal reason. The latter is exceptional and means legally compelling, not merely politically or emotionally compelling.

Where a later tribunal considers substantially the same human-rights evidence, the earlier tribunal’s determination is the proper starting point. Issues already determined should generally be treated as settled. The later tribunal must identify any genuinely new and material evidence, but the involvement of children or their welfare does not itself justify reopening the full Article 8 assessment.

The claimant, a Pakistani national, challenged the Upper Tribunal’s refusal of permission to appeal against a First-tier Tribunal decision dismissing his appeal against refusal to revoke a deportation order. The deportation followed his conviction and four-year sentence for wounding with intent.

The claimant relied principally on Article 8 family life, including the interests of his two British children. That issue had previously been considered by the First-tier Tribunal and permission to appeal had been refused. A later asylum and human-rights application produced a further appeal, but the First-tier Tribunal concluded that the alleged new matters did not materially alter the earlier decision.

The central issue was whether the Upper Tribunal’s refusal disclosed an important point of principle or practice, or some other compelling legal reason justifying a second-tier appeal.

1. The claim was refused. The Upper Tribunal’s refusal of permission to appeal was not arguably wrong in law.
2. An application to judicially review refusal of permission by the Upper Tribunal must satisfy the second-tier appeal criteria identified in R (Cart) v The Upper Tribunal [2011] UKSC 28. The second limb is a narrow and exceptional jurisdiction. A case must have very high prospects of success, be plainly wrong or perverse, involve a serious procedural failure, or otherwise present a legally compelling reason. Emotional or political consequences do not constitute a free-standing compelling reason.
3. R (PR (Sri Lanka) & Others) v Secretary of State for the Home Department [2011] EWCA Civ 988 confirmed the exceptional nature of the second limb, particularly in the specialist tribunal system. JD (Congo) & Others v Secretary of State for the Home Department [2012] EWCA Civ 327 confirmed that the test remains sufficiently flexible to prevent injustice.
4. The second First-tier Tribunal correctly treated the earlier March 2011 determination as its starting point. Under the guidance in Devaseelan [2004] UKIAT 282, it had to identify material facts or evidence which were not before the earlier tribunal and might have affected its conclusions. Where the facts and evidence were essentially the same, the issues were settled and could not be re-litigated. The guidance was supported by LD (Algeria) (also known as Djebbar) [2004] EWCA Civ 804 and AS and AA (Effect of previous linked determination) Somalia [2006] UKAIT 00052, as approved by the Court of Appeal in AS and AA (Effect of previous linked determination) Somalia [2007] EWCA Civ 1040.
5. The presence of children, including British citizen children, did not require departure from those principles. The school letter concerning one child was not materially different evidence, and the tribunal was entitled, indeed bound absent good cause, to make findings in line with the earlier determination.
6. Any genuinely material changes occurring after the Upper Tribunal’s decision should be raised by fresh representations to the Secretary of State, rather than introduced through this judicial review.
7. The claimant was ordered to pay the defendant’s costs, reduced to 90 per cent because the defendant had failed to lodge and serve a statement of costs as required for summary assessment.

The judgment does not describe an appeal from this court. It records that the First-tier Tribunal dismissed the claimant’s appeal, refused permission to appeal, and that the Upper Tribunal refused permission on 8 February 2012. The present judicial review challenge to that refusal was dismissed.