Case No. UKUT-00410-(IAC)

(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision.(2) Any party to a case has a right of appeal, subject to subsection (14).(3) That right may be exercised only with permission (or, in Northern Ireland, leave).(4) Permission (or leave) may be given by–(a) the Upper Tribunal, or(b) the relevant appellate court,on an application by the party.(5) An application may be made under subsection (4) to the relevant appellate court only if permission (or leave) has been refused by the Upper Tribunal.(6) The Lord Chancellor may, as respects an application under subsection (4) that falls within subsection (7) and for which the relevant appellate court is the Court of Appeal in England and Wales or the Court of Appeal in Northern Ireland, by order make provision for permission (or leave) not to be granted on the application unless the Upper Tribunal or (as the case may be) the relevant appellate court considers–(a) that the proposed appeal would raise some important point of principle or practice, or(b) that there is some other compelling reason for the relevant appellate court to hear the appeal.(6A) Rules of court may make provision for permission not to be granted on an application under subsection (4) to the Court of Session that falls within subsection (7) unless the court considers -(a) that the proposed appeal would raise some important point of principle [ or practice] , or (b) that there is some other compelling reason for the court to hear the appeal.(7) An application falls within this subsection if the application is for permission (or leave) to appeal from any decision of the Upper Tribunal on an appeal under section 11.(8) For the purposes of subsection (1), an ‘excluded decision’ is –(a) any decision of the Upper Tribunal on an appeal under section 28(4) or (6) of the Data Protection Act 1998 (c. 29) (appeals against national security certificate),(b) any decision of the Upper Tribunal on an appeal under section 60(1) or (4) of the Freedom of Information Act 2000 (c. 36) (appeals against national security certificate),(c) any decision of the Upper Tribunal on an application under section 11(4)(b) (application for permission or leave to appeal),(d) a decision of the Upper Tribunal under section 10–(i) to review, or not to review, an earlier decision of the tribunal,(ii) to take no action, or not to take any particular action, in the light of a review of an earlier decision of the tribunal, or(iii) to set aside an earlier decision of the tribunal,(e) a decision of the Upper Tribunal that is set aside under section 10 (including a decision set aside after proceedings on an appeal under this section have been begun), or(f) any decision of the Upper Tribunal that is of a description specified in an order made by the Lord Chancellor.(9) A description may be specified under subsection (8)(f) only if –(a) in the case of a decision of that description, there is a right to appeal to a court from the decision and that right is, or includes, something other than a right (however expressed) to appeal on any point of law arising from the decision, or(b) decisions of that description are made in carrying out a function transferred under section 30 and prior to the transfer of the function under section 30(1) there was no right to appeal from decisions of that description.(10) Where –(a) an order under subsection (8)(f) specifies a description of decisions, and(b) decisions of that description are made in carrying out a function transferred under section 30,the order must be framed so as to come into force no later than the time when the transfer under section 30 of the function takes effect (but power to revoke the order continues to be exercisable after that time, and power to amend the order continues to be exercisable after that time for the purpose of narrowing the description for the time being specified).(11) Before the Upper Tribunal decides an application made to it under subsection (4), the Upper Tribunal must specify the court that is to be the relevant appellate court as respects the proposed appeal.(12) The court to be specified under subsection (11) in relation to a proposed appeal is whichever of the following courts appears to the Upper Tribunal to be the most appropriate –(a) the Court of Appeal in England and Wales;(b) the Court of Session;(c) the Court of Appeal in Northern Ireland.(13) In this section except subsection (11), ‘the relevant appellate court’, as respects an appeal, means the court specified as respects that appeal by the Upper Tribunal under subsection (11).(14) The Lord Chancellor may by order make provision for a person to be treated as being, or to be treated as not being, a party to a case for the purposes of subsection (2).(15) Rules of court may make provision as to the time within which an application under subsection (4) to the relevant appellate court must be made.”9. The term “excluded decisions” in Section 13(1) of the 2007 Act is given flesh by a Statutory Instrument, namely the Appeals (Excluded Decisions) Order 2009 (the “2009 Order”). Article 2 lists two decisions of the FtT which are “excluded decisions”. In Article 3 there is a list comprising thirteen “excluded decisions” of both the FtT and the UT. While only the last of these, Article 3 (m), which was added by the Tribunals, Courts and Enforcement Act 2007 (Miscellaneous Provisions) Order 2010, effective from 15 February 2010, falls to be considered in the present context, it is appropriate to reproduce Article 3 in full:“For the purposes of sections 11(1) and 13(1) of the Tribunals, Courts and Enforcement Act 2007, the following decisions of the First-tier Tribunal or the Upper Tribunal are excluded decisions -(a) any decision under section 20(7), (8B) or (8G)(b) (power to call for documents of taxpayer and others), 20B(1B) or (6) (restrictions on powers under sections 20 and 20A) or 20BB(2)(a) (falsification etc. of documents) of the Taxes Management Act 1970 1 ;(b) any decision under section 35A(2) (variation of undertakings), 79A(2) (variation of undertakings) or 219(1A) (power to require information) of the Inheritance Tax Act 1984;(c) any decision under section 152(5) (notification of taxable amount of certain benefits) or 215(7) (advance clearance by Board of distributions and payments) of the Income and Corporation Taxes Act 1988;(d) any decision under section 138(4) of the Taxation of Chargeable Gains Act 1992 (procedure for clearance in advance);(e) any decision under section 187(5) or (6) (returns and information) of, or paragraph 3(2) or 6(2) of Schedule 21 (restrictions on powers under section 187) to, the Finance Act 1993;(f) any decision under paragraph 91(5) of Schedule 15 to the Finance Act 2000 (corporate venturing scheme: advance clearance);(g) any decision under paragraph 88(5) of Schedule 29 to the Finance Act 2002 (gains and losses from intangible fixed assets: transfer of business or trade);(h) any decision under paragraph 2, 4, 7, 9, 10, 11 or 24 of Schedule 13 to the Finance Act 2003 (stamp duty land tax: information powers);(i) any decision under section 306A (doubt as to notifiability), 308A (supplemental information), 313B (reasons for non-disclosure: supporting information) or 314A (order to disclose) of the Finance Act 2004;(j) any decision under section 697(4) of the Income Tax Act 2007 (opposed notifications: determinations by tribunal);(k) any decision under regulation 10(3) of the Venture Capital Trust (Winding up and Mergers) (Tax) Regulations 2004 (procedure for Board's approval);(l) any decision under regulation 5A (doubt as to notifiability), 7A (supplemental information), 12B (reasons for non-disclosure: supporting information) or 12C (order to disclose) of the National Insurance Contributions (Application of Part 7 of the Finance Act 2004) Regulations 2007 4 .(m) any procedural, ancillary or preliminary decision made in relation to an appeal against a decision under section 40A of the British Nationality Act 1981, [section 82 of the Nationality, Immigration and Asylum Act 2002] , or regulation 26 of the Immigration (European Economic Area) Regulations 2006.”10. We draw attention also to certain provisions of the Tribunal Procedure (Upper Tribunal) Rules 2008 (the “2008 Rules”) which have featured in the debate. First there is the overriding objective: