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Upper Tribunal’s error of law reasoning can very rarely be altered when a decision is re-made

Upper Tribunal’s error of law reasoning can very rarely be altered when a decision is re-made

In AZ (error of law: jurisdiction; PTA practice) Iran [2018] UKUT 245 (IAC) the determination makes heavy weather of restating some settled principles of law and practice.

The judge granting permission to appeal to the Upper Tribunal had raised the question of whether the delay in promulgating the determination, an unconscionable period of almost 12 months, had led to unfairness and error in the findings on credibility.

The case went to the Court of Appeal on this point as the Upper Tribunal judge hearing the appeal failed to engage with it. Beatson LJ gave permission on that ground and the case was remitted by consent to the Upper Tribunal.

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Chastised, the Upper Tribunal observed that “before it has re-made the decision in an appeal, pursuant to section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal has jurisdiction to depart from, or vary, its decision that the First-tier Tribunal made an error of law, such that the First-tier Tribunal’s decision should be set aside under section 12(2)(a)”. It went on to record that Practice Direction 3.7 highlights that only in a “very exceptional” case should it exercise this power.

Maintaining the tradition established under President McCloskey of using reported cases to try to keep tribunal judges in order, the Upper Tribunal was bitterly critical of the decision to grant permission on the delay ground, which it considered hopeless and unarguable. As guidance, it stated:

…we consider that any judge who is considering whether to grant permission to appeal to the Upper Tribunal must not grant permission on a ground which does not feature in the grounds accompanying the application, unless the judge is satisfied that the ground he or she has identified is one which has a strong prospect of success for the original appellant; or for the Secretary of State, where the ground relates to a decision which, if undisturbed, would breach the United Kingdom’s international treaty obligations; or (possibly) if the ground relates to an issue of general importance, which the Upper Tribunal needs to address.

The case concerned a ground which was introduced by the judge granting permission but the guidance is relevant to a ground a party seeks to advance. The tribunal observed at paragraph 58:

The mere fact that a different representative of the claimant, compared with the person who had attended at the error of law hearing, might have thought that he he could do a better job than that person in advancing the ground based on delay, does not come near making the case an exceptional one.

Delay

As to delay, the Upper Tribunal reiterated that Arusha and Demushi (deprivation of citizenship – delay) [2012] UKUT 80 (IAC) describes the correct approach: it is necessary to show a nexus between delay and the safety of the decision.

Adducing new evidence before the Upper Tribunal

At the hearing before the Upper Tribunal an application under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to adduce evidence that was not before the First-tier Tribunal. The evidence was a witness statement which went to how a document before the First-tier Tribunal came to be misdescribed as an arrest warrant rather than, perhaps, a summons. Representatives in Iranian cases, take note. In the light of a plausible explanation of why the appellant had not appreciated the significance of the distinction earlier, the application was granted.

The official headnote

(1) Before it has re-made the decision in an appeal, pursuant to section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal has jurisdiction to depart from, or vary, its decision that the First-tier Tribunal made an error of law, such that the First-tier Tribunal’s decision should be set aside under section 12(2)(a).

(2) As Practice Direction 3.7 indicates, that jurisdiction will, however, be exercised only in very exceptional cases. This will be so, whether or not the same constitution of the Upper Tribunal that made the error of law decision is re-making the decision in the appeal.

(3) Permission to appeal to the Upper Tribunal should be granted on a ground that was not advanced by an applicant for permission, only if:

(a) the judge is satisfied that the ground he or she has identified is one which has a strong prospect of success:

(i) for the original appellant; or

(ii) for the Secretary of State, where the ground relates to a decision which, if undisturbed, would breach the United Kingdom’s international Treaty obligations; or

(b) (possibly) the ground relates to an issue of general importance, which the Upper Tribunal needs to address. 

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