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“Wing and a prayer” grounds of appeal criticised by President

“Wing and a prayer” grounds of appeal criticised by President

President Mr Justice McCloskey has criticised the Home Office for submitting “wing and a prayer” grounds of appeal to the Upper Tribunal and the judge who granted permission to appeal. The case is MR (permission to appeal: Tribunal’s approach) Brazil [2015] UKUT 00029 (IAC) and the language is forthright:

To conclude, the decision of the FtT in this case was unimpeachable. On behalf of the Secretary of State, the application for permission to appeal was launched on a wing and a prayer. It was manifestly devoid of any substance or merit and should have been exposed accordingly.

Essentially, the grounds attempted to argue that the First-tier judge had “diminished” certain aspects of evidence and should have reached a different conclusion. There was obviously no error of law pleaded and it was nothing more than a quarrel with the outcome.

The President is highly critical of the decision to grant permission to appeal. He returns to the theme of the earlier case of Nixon (permission to appeal: grounds) [2014] UKUT 368 (IAC) (“Contrasting cases on grounds of appeal“):

“It may be worth emphasising that, irrespective of whether permission to appeal is granted on all of the grounds advanced or some thereof only, a reasoned decision is always required in respect of each and every ground, which reinforces the necessity of considering all grounds with scrupulous care.”

It is appropriate to add that nothing of an unduly elaborate, burdensome or analytical nature is expected of the permission Judge. The reasons for granting or refusing permission to appeal, in whole or in part, in any given case will almost invariably be capable of being expressed in a concise and focused manner. In most cases, a couple of carefully constructed sentences will suffice. Adherence to this basic, but indispensable, discipline will ensure that only worthy candidates overcome the threshold. We are confident that compliance with this fundamental requirement would have identified the present case as an entirely unworthy candidate for the grant of permission.

It certainly is frustrating defending appeals by the Home Office where we all know that grounds are drafted against every single deportation and human rights allowed appeal no matter what the merits, and permission is regularly granted without reasons being stated. It is expensive for everyone concerned, apart from anything.

It would be interesting to know if there was any application for costs consequent to the decision. It would certainly be arguable that the Home Office had acted unreasonably in bringing the Upper Tribunal appeal, which is the necessary test for an award of costs. A decision has been promulgated in the First-tier Tribunal that addresses the issue of costs, which I will be writing up very shortly. The Presidents sitting together take a very dim view of last minute withdrawals by a party to an appeal.

Accessible and practical guide to costs in appeals and judicial reviews including rules, guidance, case law, quantification and assessment

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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