Second tier appeals test: judgment handed down in JD (Congo) and others

Thursday 22 March 2012

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JD (Congo) and others v Secretary of State for the Home Department [2012] EWCA Civ 327

The Court of Appeal has clarified the approach to the "some other compelling reason" limb of the second tier appeals test in JD (Congo) and others v Secretary of State for the Home Department, in which Anthony Vaughan was instructed.

The Court confirmed that the provenance of the appeal, the consequences for the applicant of permission, and the fact that the second appeal is the first occasion that the applicant has had to correct the error, may all be relevant factors when the Court decides whether there is a "compelling reason" to grant permission to appeal. The extent to which it was possible to preserve the findings of fact of the First Tier Tribunal will be relevant in determining whether a particular application involves a true "second appeal". The Court held that the Upper Tribunal should not routinely remit appeals to the First Tier Tribunal, rather than remake the decision itself, at least in any case where further factual findings were required.

Permission was granted in the individual cases broadly because they were, in substance, first appeals; that there were strongly arguable errors of law in the decisions of the Upper Tribunal (Immigration and Asylum Chamber) under appeal; and the consequences for the applicants of a wrong decision were extreme and irreversible (return to persecution or Article 3 ECHR harm).

The case is significant, among other things, for its clarification of the relevance of "extreme consequences" when applying the compelling reason test. PR (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 988, which was until JD the leading case, had suggested at §36 that extreme consequences would only exceptionally be of relevance. The Court in JD confirmed that "[T]here is no reason to minimise the significance of the consequences of a decision in the immigration and asylum field merely because legal errors in that field are often capable of having dire consequences for appellants" (§27).

Click here to read the full judgment.

Anthony Vaughan is a member of the Garden Court Chambers Immigration Team.

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