Safi and others (permission to appeal decisions) [2018] UKUT 00388 (IAC)

Key points on the case

(1) It is essential for a judge who is granting permission to appeal only on limited grounds to say so, in terms, in the section of the standard form document that contains the decision, as opposed to the reasons for the decision.

(2) It is likely to be only in very exceptional circumstances that the Upper Tribunal will be persuaded to entertain a submission that a decision which, on its face, grants permission to appeal without express limitation is to be construed as anything other than a grant of permission on all of the grounds accompanying the application for permission, regardless of what might be said in the reasons for decision section of the document.

D. Procedure Rules

11.     Rule 34 of the Tribunal Procedure (First-tier Tribunal) (Immigration & Asylum Chamber) Rules 2014 provides as follows:-

Tribunal’s consideration of an application for permission to appeal to the Upper Tribunal

34.—(1) On receiving an application for permission to appeal the Tribunal must first consider whether to review the decision in accordance with rule 35.

(2) If the Tribunal decides not to review the decision, or reviews the decision and decides to take no action in relation to the decision, or part of it, the Tribunal must consider whether to give permission to appeal in relation to the decision or that part of it.

(3) The Tribunal must send a record of its decision to the parties as soon as practicable.

(4) If the Tribunal refuses permission to appeal it must send with the record of its decision—

(a) a statement of its reasons for such refusal; and

(b) notification of the right to make an application to the Upper Tribunal for permission to appeal and the time within which, and the manner in which, such application must be made.

(5) The Tribunal may give permission to appeal on limited grounds, but must comply with paragraph (4) in relation to any grounds on which it has refused permission.”

12.     So far as relevant, the Tribunal Procedure (Upper Tribunal) Rules 2008 provide as follows:-

Application to the Upper Tribunal for permission to appeal

21.—(1) …

(2) A person may apply to the Upper Tribunal for permission to appeal to the Upper Tribunal against a decision of another tribunal only if—

(a) they have made an application for permission to appeal to the tribunal which made the decision challenged; and

(b) that application has been refused or has not been admitted or has been granted only on limited grounds.

…”

20.     In Ferrer (limited appeal grounds; Alvi[2012] UKUT 00304 (IAC), difficulties arose in respect of a grant of permission that did not make it clear whether permission was granted only on limited grounds. The Upper Tribunal said this:-

“22. It is necessary at this stage to make two general points. First, as the present case illustrates, if on an application for permission to appeal the First-tier Tribunal, Immigration and Asylum Chamber intends to grant permission only in respect of certain of the grounds, then the judge considering that application should make it abundantly plain that this is so, both in his or her decision under rule 25(5) and by ensuring that the Tribunal’s administrative staff send out the proper notice (currently IA68) so as to comply with rule 25(5). It should also be noted that rule 25(4)(a) requires “written reasons for a decision under this rule”, which means that written reasons are required both for granting an application on particular grounds and for refusing the application on particular grounds.”

23. Secondly, as a practical matter, the First-tier Tribunal should consider carefully the utility of granting permission only on limited grounds. Given that the effect of any grant of permission to the Upper Tribunal is to set in train proceedings on the case in question in the Upper Tribunal, a grant of permission on limited grounds will not, in practice, often be as helpful to the parties or to the Upper Tribunal as would a general grant of permission by reference to all of the applicant’s grounds, which nevertheless expressly identifies the ground or grounds that are considered by the First-tier Tribunal to have the strongest prospect of success. In this way, the First-tier Tribunal identifies the likely ambit of the forthcoming Upper Tribunal proceedings, which – if that Tribunal concurs – can then form the backdrop for the Upper Tribunal’s subsequent case management directions under rule 5 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Upper Tribunal Rules”). It should also be noted that rule 15(1)(a) and (b) of those Rules expressly enables the Upper Tribunal to give directions as to the issues on which it requires evidence or submissions and the nature of the evidence or submissions it requires.”

21.     As is apparent, in Ferrer the Upper Tribunal was dealing with the predecessors of the 2014 Rules. Nothing of materiality turns on this, however.

22.     In Secretary of State for the Home Department v RodriguezMandalia and Patel v SSHD [2014] EWCA Civ 2, the Court of Appeal had to interpret the scope of permission to appeal from the First-tier Tribunal to the Upper Tribunal, as granted by the Upper Tribunal. In the case of Mr Mandalia, it became important to decide whether the Upper Tribunal had granted permission on one or both of two grounds, since this impacted upon the jurisdiction of the Court of Appeal.