Palash v Secretary of State for the Home Department

In a second-appeal immigration application, permission should be granted where there are compelling grounds for thinking that the Upper Tribunal may have seriously erred in treating an appeal as involving an error of law. A First-tier Tribunal’s findings on the credibility and substance of an applicant’s evidence may be open to it, particularly where the Secretary of State’s evidence is generic or untested and the applicant’s account is detailed and unchallenged. The Upper Tribunal must not substitute its own view of the evidence for that of the First-tier Tribunal without identifying a proper legal error. A possible real injustice is a compelling reason for granting permission.

The applicant challenged the Upper Tribunal’s interference with a First-tier Tribunal decision concerning cancellation of leave to remain following alleged deception in an ETS TOEIC English-language test. The Secretary of State relied on generic evidence about fraudulent proxy testing and applicant-specific look-up evidence. The First-tier Tribunal accepted the applicant’s detailed evidence that he had taken and passed the test, together with his fluent English and educational history.

The Court of Appeal considered whether the Upper Tribunal had arguably erred in law by treating the First-tier Tribunal’s acceptance of that evidence as inadequately reasoned, by giving precedence to the Secretary of State’s evidence, or by substituting its own assessment of the facts.

1. Permission granted. The Court granted permission to appeal in the applicant’s case because it was arguable that the Upper Tribunal had erred in finding an error of law and had set aside the First-tier Tribunal’s decision without proper justification. The second-appeal test applied, but a moderated approach was appropriate because the Upper Tribunal had departed from the First-tier Tribunal’s decision. A compelling reason also existed where the circumstances suggested that something had gone very seriously wrong and that a real injustice might otherwise have occurred.
2. The First-tier Tribunal was entitled to accept the applicant’s detailed and specific evidence that he had attended and passed the TOEIC test. Relevant considerations included his educational history, fluent English, account of the test arrangements, and the absence of effective challenge to his evidence. The Secretary of State’s generic material and applicant-specific look-up evidence did not automatically require rejection of that evidence.
3. Findings made after the First-tier Tribunal had heard the evidence were findings of fact. The Upper Tribunal could interfere only on the basis of an identifiable error of law. It was arguable that the Upper Tribunal had instead substituted its own view for that of the tribunal which heard the evidence.
4. The suggested misapplication of Secretary of State for the Home Department v Shehzad and Chowdhury [2016] EWCA Civ 615 was not made out on the First-tier Tribunal’s approach. The applications were therefore granted.

• Court of Appeal (Civil Division): granted permission to appeal on the basis that the Upper Tribunal’s intervention was arguably legally erroneous and that there was a compelling reason to proceed.
• Upper Tribunal (Immigration and Asylum Chamber): interfered with the First-tier Tribunal’s decision and remade the decision, finding an error of law.