G & H, R (on the application of) v Secretary of State for the Home Department

Judicial review of an Upper Tribunal refusal of permission to appeal is not subject to an additional substantive hurdle requiring proof that the First-tier Tribunal actually made a material error of law. Once permission to proceed has been granted, the High Court must review the Upper Tribunal’s decision according to ordinary public law principles. The refusal may be unlawful where the Upper Tribunal misunderstood or misapplied the law in treating a proposed ground as unarguable, including where the ground has a real prospect of success. Procedural fairness ordinarily requires notice before a tribunal goes behind an express concession. A tribunal must also engage with material country guidance and give reasons addressing a substantial argument. An expert’s evidence cannot be rejected wholesale merely because aspects of the expert’s evidence were criticised in another case.

G, a Nigerian national, and her daughter H challenged an Upper Tribunal decision refusing permission to appeal against the First-tier Tribunal’s dismissal of their appeals against deportation and removal decisions. The First-tier Tribunal rejected G’s account of trafficking, found no sufficient risk from traffickers or of female genital mutilation to H, and dismissed their protection and human-rights claims.

The Upper Tribunal refused permission on the grounds that the First-tier Tribunal was entitled to reject the evidence, had properly considered the expert material, and had applied the country guidance on its individual facts. Permission for judicial review was granted. The central issues were the proper substantive role of the High Court after the Cart permission filter, procedural fairness, country guidance, and the treatment of expert evidence.

1. Substantive judicial review. The claim succeeded. An Upper Tribunal refusal of permission to appeal may be quashed where the Upper Tribunal misunderstood or misapplied the law in deciding that no arguable ground of appeal existed. The High Court is not required to find that the First-tier Tribunal actually made a material error of law. The second-appeals test in CPR 54.7A(7) is a filtering requirement and does not impose an additional substantive restriction after permission to proceed has been granted (paras [78]-[95], [117]-[122]).
2. The High Court must make full allowance for the specialist expertise of the tribunals and must not usurp the Upper Tribunal’s appellate function. It may nevertheless conclude that a proposed ground is plainly right, plainly wrong, or genuinely arguable. Where a ground has a real prospect of success and the Upper Tribunal rejected it as unarguable, the refusal may be unlawful (paras [81]-[90], [122]-[124]).
3. Procedural fairness. The First-tier Tribunal acted unfairly by going behind the Home Secretary’s express concession that G’s account of trafficking was accepted, without adequate notice. The adverse credibility findings relied on matters that had not been put to G and materially affected the assessment of the risks on return and the weight given to expert reports. The Upper Tribunal therefore erred in treating any unfairness as immaterial (paras [152]-[180], [182]-[183]).
4. Country guidance. The First-tier Tribunal failed to engage with the preserved guidance in PO (Nigeria) concerning the likelihood that trafficking gangs would seek reprisals against victims or their families. Its reasons did not address the substance of the argument advanced. The Upper Tribunal’s conclusion that each case must be decided on its own facts did not answer that reasons challenge (paras [184]-[196]).
5. Expert evidence. The First-tier Tribunal misread PO (Nigeria) as having discredited Ms Olateru-Olagbegi generally. Criticism of her evidence on particular issues did not justify rejecting her evidence on other matters without assessing its objectivity in the present case (paras [197]-[204]).
6. The Upper Tribunal permission refusal was quashed and the matter was remitted to the Upper Tribunal for reconsideration and a decision on permission to appeal in accordance with the judgment (para [214]).

This was a first-instance judicial review of the Upper Tribunal’s refusal of permission to appeal from the First-tier Tribunal. The First-tier Tribunal dismissed the claimants’ appeals on 10 February 2014. The Upper Tribunal refused permission to appeal on 15 April 2014. The High Court quashed that refusal and remitted the matter to the Upper Tribunal.