[2025] UKUT 365 (AAC)

An appeal to the Upper Tribunal under section 11 of the Tribunal Courts and Enforcement Act 2007 can only succeed if there is a material error of law in the First-tier Tribunal’s decision. A material error of law is an error of legal principle that might have affected the result. Errors of law include misunderstanding or misapplying the law, taking into account irrelevant factors or failing to take into account irrelevant factors, procedural unfairness or failing to give adequate reasons for a decision. An error of fact is not an error of law unless the First-tier Tribunal’s conclusion on the facts is perverse. That is a high threshold: it means that the conclusion must be irrational or wholly unsupported by the evidence. An appeal to the Upper Tribunal is not an opportunity to re-argue the case on its merits. These principles are set out in many cases, including R (Iran) v SSHD [2005] EWCA Civ 982 at [9]-[11].

In scrutinising the judgment of a First-tier Tribunal, the Upper Tribunal is required to read the judgment fairly and as a whole, remembering that the First-tier Tribunal is not required to express every step of its reasoning or to refer to all the evidence, but only to set out sufficient reasons to enable the parties to see why they have lost or won and that no error of law has been made: cf DPP Law Ltd v Greenberg [2021] EWCA Civ 672 at [57]. That case also makes the point (at [58]) that where the First-tier Tribunal has correctly stated the law, the Upper Tribunal should be slow to conclude that it has misapplied it.

In view of the Secretary of State’s concession, it is convenient to take Ground 2 first.