[2025] UKUT 239 (AAC)

The Upper Tribunal’s jurisdiction under section 11 of the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) is limited to considering whether there are any points of law arising from a decision made by the First-tier Tribunal.

Permission to appeal to the Upper Tribunal will normally only be granted where there is arguably a material error of law in the First-tier Tribunal’s decision. A point is arguable if it stands a realistic prospect of success. 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 relevant 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] and R (Wasif) v Secretary of State for the Home Department [2016] EWCA Civ 82; [2016] 1 WLR 2793 at [13].

It is not arguably an error of law for a tribunal to fail to consider evidence that was not put before it at the time unless the criteria in E v SSHD [2004] EWCA Civ 49, [2004] QB 1044 are met: i.e. (i) there is a mistake as to existing fact or the availability of evidence on a particular matter; (ii) the fact is uncontentious; (iii) the appellant is not responsible for the mistake; and (iv) the mistake plays a material part in the Tribunal’s reasoning (see [66] of the Court of Appeal’s judgment in that case). In public law cases, and especially where the appellant is not legally represented, these principles may be relaxed somewhat with the focus being on the overriding objective of dealing with cases justly, but cases in which that is appropriate are rare: see SM v Secretary of State for Work and Pensions (IIDB) [2020] UKUT 287 (AAC) at [15]-[20] per Judge Poynter.