Kiran Rai & Anor v Secretary of State for the Home Department

Grounds seeking permission to appeal to the Upper Tribunal must identify each arguable error of law clearly, succinctly and with sufficient detail to show its materiality. A grant of permission limited to particular grounds ordinarily confines the appeal to those grounds. However, the Upper Tribunal may consider other issues where they are not discrete and are capable of affecting the outcome of a permitted ground. Limited permission remains appropriate where the excluded ground concerns a separate and wholly unconnected aspect of the decision.

These were two unrelated appeals concerning the scope of appeals following grants of permission on limited grounds. In Kiran Rai’s case, the First-tier Tribunal had dismissed an Article 8 appeal concerning entry clearance, and permission had initially been granted only on the issue of compliance with the Immigration Rules. In DAM’s case, the First-tier Tribunal had dismissed protection and human rights claims, with permission granted on selected grounds concerning the danger-to-the-community assessment and social-work evidence.

The Upper Tribunal was asked to determine which issues remained within the scope of each appeal. It did not decide whether either First-tier Tribunal decision contained a material error of law.

1. Proper pleading. Grounds of appeal must identify each arguable error of law in a clear, concise and properly numbered form. They should identify the relevant passage in the First-tier Tribunal decision, any necessary statutory or other authority, and a short explanation of the alleged error and its materiality. Grounds are not an opportunity to list every perceived error or to reargue factual disagreements.
2. Limited permission. A grant of permission ordinarily confines the Upper Tribunal’s consideration to the grounds for which permission was granted. This promotes procedural rigour and enables the respondent to prepare an effective response. Permission may properly be limited where the excluded ground concerns a discrete aspect of the decision which is wholly divorced from the arguable ground.
3. Holistic consideration. The Upper Tribunal should not apply a limited grant mechanically where the permitted ground overlaps with other issues capable of affecting the outcome. Factual errors, adequacy of reasons, or subsidiary criticisms may be considered to the extent that they feed into the permitted issue. This does not permit an appellant to advance a refused ground as a separate ground of appeal without renewing the application for permission.
4. In Rai’s appeal, the second and third grounds were within scope because they concerned the assessment of family life and Article 8, matters capable of being affected by the permitted ground concerning the Immigration Rules.
5. In DAM’s appeal, the refused grounds concerning the protection claim remained discrete and outside scope. Criticisms of the social-worker evidence and the overall Article 8 assessment were within scope only insofar as they were subsumed within the permitted grounds concerning that evidence. The appeals were to be listed separately for determination of any material error of law and the appropriate disposal.

• First-tier Tribunal: Rai’s appeal was dismissed on 22 January 2024; DAM’s appeal was dismissed in a decision promulgated on 2 June 2023.
• Upper Tribunal: Permission was granted on limited grounds in each appeal. The Upper Tribunal extended the scope of Rai’s appeal to the second and third grounds, and clarified the limited scope of DAM’s appeal. No merits determination was made.