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JD (Congo) v. Secretary of State for the Home Department [2012] 1 W.L.R. 3273

DATE: 16 Mar 2012

The Court of Appeal (Lord Neuberger MR, Sir Anthony May VP and Sullivan LJ) today gave judgment in JD (Congo) v. Secretary of State for the Home Department [2012] EWCA Civ 327, in which it gave guidance on how the “compelling reason” limb of the second-tier appeals test was to be applied to appeals to the Court of Appeal from the Upper Tribunal and to judicial review challenges to decisions of the Upper Tribunal to refuse permission to appeal to itself, following R (Cart) v. Upper Tribunal [2011] 3 W.L.R. 107.

Clarifying the earlier observations in PR (Sri Lanka) v. Secretary of State for the Home Department [2012] 1 W.L.R. 73, the Court held:

“22. We accept Mr. Beloff's submission on behalf of PLP that it is important not to lose sight of Lord Dyson's warning [in Cart] that "Care should be exercised in giving examples of what might be 'some other compelling reason' because it will depend on the particular circumstances of the case". Undue emphasis should not be laid on the need for the consequences to be "truly drastic". Lord Dyson was expressly giving two, non exhaustive, examples. However, the second of his examples makes it clear that very adverse consequences for an applicant (or per Baroness Hale, the "extremity of consequences for the individual") are capable, in combination with a strong argument that there has been an error of law, of amounting to "some other compelling reason."

23. While the test is a stringent one it is sufficiently flexible to take account of the "particular circumstances of the case." It seems to us that those circumstances could include the fact that an appellant has succeeded before the FTT and failed before the UT, or the fact that the FTT's adverse decision has been set aside, and the decision has been re-made by the UT. Where they apply, those circumstances do not, of themselves, amount to "some other compelling reason", but they are capable of being a relevant factor when the court is considering whether there is such a reason. In Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070 Dyson LJ (as he then was) said that "anything less than very good prospects of success will rarely suffice" for the purposes of the second-tier appeals test. However, he recognised that there "may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not high": see the passages from Uphill cited in paragraph 8 of PR. Dyson LJ did not refer to the kind of circumstances with which we are concerned in these applications. That is not surprising, the Court in Uphill was not considering a case where the applicant for permission to appeal had succeeded at first instance but had failed at the first level of appeal. The defendant had failed before both the District Judge and the County Court Judge. Since Lord Dyson referred to Uphill and other authorities in his review of the earlier cases in Cart, it is appropriate to take his reference to the need for there to be a "strongly arguable" error of law as a synthesis of those earlier authorities.

24. Where does that leave paragraph 36 of PR? In paragraph 36 Carnwath LJ said:
"36. It is true that Baroness Hale and Lord Dyson JJSC in the Cart case acknowledged the possible relevance of the extreme consequences for the individual. However, as we read the judgments as a whole, such matters were not seen as constituting a free-standing test. In other words "compelling" means legally compelling, rather than compelling, perhaps, from a political or emotional point of view, although such considerations may exceptionally add weight to the legal arguments."

25. The applicants and PLP submitted that if this passage meant that the consequences for the individual were not relevant, or might only exceptionally be relevant, when the court was considering whether there was "some other compelling reason", it was in conflict with the passages in Cart (above), and wrong. Although Mr. Blundell submitted that paragraph 36 was consistent with Cart, he was only reluctantly prepared to concede that, in cases such as these with which we are concerned, a strongly arguable error of law on the part of the UT when coupled with truly drastic consequences for the individual "might" amount to a compelling reason for granting permission to appeal.

26. In our view paragraph 36 of PR is consistent with Cart, indeed it would be surprising if it was not. As we read the judgment in PR, the Court was emphasising the fact that, in the absence of a strongly arguable error of law on the part of the UT, extreme consequences for the individual could not, of themselves, amount to a free-standing "compelling reason." The Court noted that Baroness Hale and Lord Dyson had "acknowledged the possible relevance of the extreme consequences for the individual." It did not suggest that such consequences were irrelevant to the consideration of whether there was a "compelling reason", it merely stated, in our view correctly, that absent a sufficiently serious legal basis for challenging the UT's decision, extreme consequences would not suffice.

27. We have deliberately used the phrase "sufficiently serious legal basis for challenging the UT's decision" because the threshold for a second appeal must be higher than that for an ordinary appeal – real prospect of success. How much higher, how strongly arguable the legal grounds for the challenge must be, will depend upon the particular circumstances of the individual case and, for the reasons set out above, those will include the extremity of the consequences of the UT's allegedly erroneous decision for the individual seeking permission to appeal from that decision. It may well be the case that many applicants in immigration and asylum cases will be able to point to the "truly dire consequences" of an erroneous decision. As Mr. Husain pointed out, a decision to remove an asylum applicant from the United Kingdom's jurisdiction to the place where he claims to fear persecution will be irreversible. Just as there is no case for applying a different test to applications for permission to appeal from the Immigration and Asylum Chamber of the UT (see Lord Dyson at paragraph 125 of Cart), so also there 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.”
 

Applying these principles to the four cases before it, the Court granted permission to three of the appellants (including JD) and refused permission to one of them.

The Court exceptionally gave permission for its judgment to be cited as authority (notwithstanding the ordinary rule that judgments on permission to appeal cannot be cited) due to the widespread importance of the principles at issue.

Richard Drabble QC (leading Mavelyn Vidal) acted for JD, instructed by Duncan Lewis & Co.

David Blundell acted for the Secretary of State, instructed by the Treasury Solicitor.

Charles Banner (led by Michael Beloff QC) acted for the Public Law Project who were granted permission to intervene by way of written and oral submissions, instructed by Bates Wells & Braithwaite LLP.

Richard and Charles had previously appeared for Mr Cart in the Supreme Court in Cart.