EH v The Secretary of State for the Home Department

A grant of permission to appeal by the Upper Tribunal remains a grant even where permission is expressed to be limited. It is not treated as a refusal of permission and is therefore outside the scope of judicial review under CPR 54.7A, which applies following refusal of permission. Unless the Upper Tribunal directs otherwise, the application for permission stands as the notice of appeal and all grounds in that application form the grounds of appeal. Any restriction must be imposed by direction. Such a direction may be amended, suspended or set aside under rule 5(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

The appellant, a Bangladeshi national convicted of murdering his wife, appealed against the refusal of his protection and human rights claims. He sought permission to appeal to the Upper Tribunal on seven grounds. Permission was granted on grounds 4 and 7 only.

The appellant then obtained judicial review in the High Court. The High Court quashed what it described as the Upper Tribunal’s refusal of permission. The Upper Tribunal had to determine the effect of that order, whether a limited grant of permission was amenable to judicial review under CPR 54.7A, and the scope of the appeal under the Upper Tribunal Rules.

1. Judicial review. CPR 54.7A applies only following refusal by the Upper Tribunal of permission to appeal. A limited grant is still a grant. It does not dispose of the appeal proceedings and is not amenable to judicial review under the Cart procedure.
2. Scope of the appeal. Under rule 22(2)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008, the application for permission stands as the notice of appeal unless the Upper Tribunal gives a direction to the contrary. Accordingly, absent such a direction, all grounds in the application are grounds of appeal, even where permission is stated to have been granted on limited grounds.
3. The Upper Tribunal has no relevant jurisdictional fetter on its consideration of an appeal from the First-tier Tribunal. The scope of the appeal is controlled by procedural powers, which must be exercised consistently with the overriding objective. A limitation must be imposed by direction. Under rule 5(2), the Tribunal may amend, suspend or set aside that direction.
4. The observations in Sarkar and another v Secretary of State for the Home Department [2014] EWCA Civ 195 concerning the jurisdictional effect of a limited grant were obiter. JH (Palestinian Territories) v Upper Tribunal (Immigration Asylum Chamber) and Secretary of State for the Home Department [2020] EWCA Civ 919 did not establish that CPR 54.7A generally extends to a grant of permission.
5. The appellant’s grounds of appeal could therefore be advanced in full. The Tribunal formally recorded that position and listed the appeal for hearing.

1. First-tier Tribunal: dismissed the appellant’s asylum and human rights appeal. Permission to appeal was refused.
2. Upper Tribunal: granted permission on grounds 4 and 7 only.
3. High Court: granted judicial review permission and ordered that the purported refusal of permission be quashed.
4. Upper Tribunal (Immigration and Asylum Chamber): held that the limited grant was not amenable to judicial review and recorded that all grounds in the permission application could be advanced.