[2024] UKUT 287 (AAC)

Under rule 22 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698) (“the Rules”) the Upper Tribunal may grant or refuse permission to appeal. By rule 22(1) if permission is refused, “it must send written notice of the refusal and of the reasons for the refusal to the appellant”. If permission is granted on some grounds, but not on all, or subject to some other condition, then (by rule 22(2)(a)) the Upper Tribunal “must send written notice of the permission, and of the reasons for any limitations or conditions on such permission, to each party”. If permission is granted on an unlimited or unconditional basis, the Rules contain no express requirement for reasons to be given, only a requirement that each party be sent a written notice of the grant of permission (rule 22(2)(a)). By rule 22(2)(b), “subject to any direction by the Upper Tribunal, the application for permission to appeal stands as the notice of appeal …”.

As we have indicated, there is a dispute in this case as to the scope of the grant of permission. A similar issue arose in the Court of Appeal in Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2, where the question was whether the point sought to be run in the Court of Appeal had in fact been the subject of a refusal of permission before the Upper Tribunal (and thus a decision in respect of which no appeal could be made to the Court of Appeal). The order recording the grant of permission in that case had been unlimited, but the respondent argued that the grant of permission was in fact limited by the reasons for granting permission that followed. Davis LJ at paragraph 77 held that:

“if there is ambiguity arising from the language of the Reasons given then […] such ambiguity is to be resolved in favour of the applicant: particularly where the opening part of the Order concerning the actual grant of permission was unqualified”

However, there is no rule that the reasons cannot limit the grant of permission, even where the determination is in unqualified terms. In Sarkar v Secretary of State for the Home Department [2014] EWCA Civ 195, Moore-Bick LJ at paragraph 17 held that:

“In the present case the apparently unqualified grant of permission to appeal must be read in the context of the reasons which Judge Spencer gave for his decision, which make it quite clear that he intended to limit it to the ground that he had identified based on section 47 of the Immigration, Asylum and Nationality Act 2006.”