Ali Ahmed Safi v Secretary of State for the Home Department

Where permission to appeal is granted on a standard form without an express limitation in the decision section, it will ordinarily be construed as permission on all grounds advanced. Comments in the reasons section about the weakness of particular grounds do not, without clear and unambiguous limiting language, cut down that grant.

A judge who intends to grant permission only on specified grounds must say so expressly in the decision itself. The reasons section should explain the grant or refusal, not introduce operative limitations. Only very exceptional circumstances will justify construing an apparently unrestricted grant as limited.

The appellants had challenged a First-tier Tribunal determination that they were excluded from refugee status under article 1F(b) of the Refugee Convention. They applied for permission to appeal on four grounds; one appellant advanced a fifth ground.

The First-tier Tribunal used a standard form stating, in its decision section, that permission to appeal was granted. In the reasons section it said that two grounds disclosed no arguable error of law, but addressed neither the fourth ground nor the additional fifth ground.

The Upper Tribunal was asked to determine whether the grant was confined to the first ground or extended to every ground advanced.

1. The grant of permission was unrestricted. The First-tier Tribunal’s decision section stated simply that permission to appeal was granted. Read as a whole, the form did not unambiguously limit that grant. Any ambiguity created by the reasons section had to be resolved in the appellants’ favour, consistently with Secretary of State for the Home Department v Rodriguez; Mandalia and Patel v SSHD [2014] EWCA Civ 2.

2. The reasons section was distinct from, and subordinate to, the operative decision section. Its statements that the duress and political-crime grounds were not arguably erroneous did not expressly refuse permission on those grounds. The omission of any treatment of the expiation ground and the additional medical ground reinforced the conclusion that the judge was commenting on comparative merit, rather than restricting the appeal.

3. Section 11(1) of the Tribunals, Courts and Enforcement Act 2007 permits an appeal on a point of law. Once permission was properly granted on one ground, there was no procedural objection to a general grant even if other grounds would not independently have justified permission. This accords with the practical guidance against limited grants where they may delay the appeal.

4. The Tribunal stated a prospective requirement. A judge granting permission only on limited grounds must identify those grounds expressly in the decision section of the form, for example by stating which grounds are granted and which are refused. The reasons section must explain that decision and provide reasons for any refusal; it must not contain words intended to operate as a limitation.

5. Accordingly, the Tribunal did not need to decide whether further permission should be granted on the remaining grounds.

• Upper Tribunal (Immigration and Asylum Chamber): Held that the First-tier Tribunal’s grant of permission extended to all grounds advanced.

• First-tier Tribunal: In a determination promulgated on 7 July 2015, held that the appellants were excluded from refugee status under article 1F(b) of the Refugee Convention. On 18 January 2018 it granted permission to appeal using wording whose scope was later determined by the Upper Tribunal.