Court of Appeal provides guidelines on the applicability of the "second appeals rule"

Monday 28 June 2010

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On 28 June 2010 the Court of Appeal granted permission to appeal in the case of FA (Iraq), but refused permission in another, linked case. Stephen Knafler QC of Garden Court Chambers appeared for the appellant in FA (Iraq), together with Margaret Phelan of Renaissance Chambers.

The Court of Appeal decided that the applicability of the "second appeals rule", in the Appeals from the Upper Tribunal to the Court of Appeal Order 2008, was limited by sections 11 to 13 of the Tribunals, Courts and Enforcement Act 2007. Therefore, it only applied to appeals from decisions by the Upper Tribunal on appeal from the First Tier Tribunal under section 11 of the 2007 Act. It never applied to reconsideration decisions by the Asylum and Immigration Tribunal, or decisions of the Upper Tribunal that were treated as being appeals from such reconsideration decisions. The Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 made no difference to that.

Thus CPR 52.3(6) ("real prospect of success" or "some other compelling reason") continues to apply in all the following types of case:

  1. where a hearing has taken place as a reconsideration and the determination is dated before 15 February 2010, but is promulgated after that date
  2. where a hearing has taken place as a reconsideration before 15 February 2010 and the determination is dated and promulgated after that date
  3. where there was a first stage reconsideration before 15 February 2010, but the second stage reconsideration was heard after that date
  4. where a reconsideration was ordered before 15 February 2010 and then heard as an appeal to the Upper Tribunal by virtue of the transitional provisions after that date.

Permission to appeal was granted in FA (Iraq) on Article 8 grounds and because it was arguable that the AIT applied the wrong standard of proof (by indicating that it was not "convinced" by certain aspects of the claim). The Court of Appeal made a direction permitting reference to the decision because of the importance of the general guidance about the applicability of the second appeals rule.

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