[2023] UKUT 00164 (IAC)

There is no doubt that there is a clear need for procedural rigour in the consideration of applications for permission to appeal to the UT. That is not simply because it is a specific provision of the relevant Rules, but also because it is part of the process of ensuring the achievement of the overriding objective, which is a fundamental principle underpinning the provisions of the Rules. The requisite clear, coherent and concise ‘issues-based’ approach continues when a judge considers whether to grant permission to appeal. This means that the judge should consider whether a point relied upon within the grounds of appeal was raised for consideration as an issue in the appeal or is otherwise Robinson obvious. As explained in Lata (supra) at [33] the reformed procedures are specifically designed to ensure that the parties identify the issues and they are comprehensively addressed before the FTT, not that proceedings before the IAC are some form of rolling reconsideration by either party of its position.

There should be no underlying ambiguity in the grant or refusal of permission. It is not helpful to merely summarise the grounds of appeal and then only address some. Where a judge considers a ground to be unarguable and another arguable they should say so, and give concise reasons – see Joseph (permission to appeal requirements) [2022] UKUT 218 (IAC); [2022] Imm AR 1360.

When the order provides that permission to appeal is granted, the reasons for that grant should be concise, crisp, clear and focussed. This provides the parties with an understanding of what is the point upon which argument for the UT is being granted. Where permission is granted on a limited basis, and for identified grounds only, that must be specified in the heading, so that it is clear when it comes to an error of law hearing what the parties are preparing to argue. It is most unhelpful if that phrase is used and then the reasons for the decision undermine it by being unclear as to, for instance, in cases where there are several grounds of appeal, which of those grounds are being granted permission and which are not. This is another dimension of identifying the principal controversial issues which require to be resolved to determine the appeal, applying the same legal principles which have been set out above, on this occasion for the proceedings in the UT.

Whilst sometimes it may be that a judge granting permission to appeal would provide some indication of their view as to the relative strength of grounds, strictly speaking, that is of no assistance at all. A ground is either arguable or it is not. What the reasons for the decision need to focus upon, in a laser-like fashion, is those grounds which are arguable and those which are not. To secure procedural rigour in the UT and the efficient and effective use of Tribunal and party time in resolving the issues that are raised, it is necessary for the grant of permission to clearly set the agenda for the litigation for the future.