[2025] UKUT 00150 (IAC)

Section 11(1) of the Tribunals Courts and Enforcement Act (“the 2007 Act”) makes provision for an appeal to the Upper Tribunal on any point of law arising from any decision except an excluded decision. The right of appeal is subject to permission being given, following application by the party, by either the FtT or the Upper Tribunal. Rule 33 of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (“the FtT Procedure Rules”) requires a party seeking permission to appeal to the Upper Tribunal to make a written application to the Tribunal for permission to appeal which must identify the alleged errors of law in the decision. Where an application has been made to the FtT and refused, the application can be renewed to the Upper Tribunal and rule 21(4)(e) of The Tribunal Procedure (Upper Tribunal) Rules 2008 (“the UT Procedure Rules”) requires the party to state the grounds on which the appellant relies. We refer to the ‘grounds’ in this context as the ‘Grounds of Appeal’.

The general rights of appeal to the FtT provided for in section 82 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) are quite different to the right of appeal to the Upper Tribunal. Importantly, the right of appeal to the Upper Tribunal requires the grant of permission and is restricted to ‘any point of law arising from a decision made by the FtT. The ‘point of law’ is in effect, a defect in the decision of the FtT that is apparent from its reasoning and/or the procedure leading to the decision. The grounds of appeal must establish that it is at least arguable, that the FtT wrongly applied a principle of law; misunderstood a statute; reached a decision that no reasonable tribunal could have reached or come to. If errors are made in the decision of the FtT then the grounds of appeal are required to identify the error(s), which on appeal, the Upper Tribunal is being required to rectify. It is a ground upon which, if accepted, the decision of the FtT would, subject to the ground being material to the outcome of the appeal, be set aside.

Rule 2(4) of the FtT Procedure Rules and the UT Procedure Rules impose a duty on the parties to help the Tribunals to further the overriding objective and to cooperate with the Tribunals generally. Practitioners have a duty to carefully consider whether a challenge to the judge’s findings of fact, or the application of the facts to the legal framework is material to the outcome of the appeal and the grounds of appeal must be prepared with the above guidance in mind.

In August 2019, the Presidents of the FtT and Upper Tribunal issued ‘Joint Presidential Guidance 2019 No 1: Permission to appeal to UTIAC’ (“the Joint Presidential Guidance”) that set out guidance for judges considering whether to grant permission to appeal from a decision of the FtT to the Upper Tribunal. The guidance highlights the expectation that professional representatives should set out the basis of the application for permission to appeal with an appropriate degree of particularity and legibility; OK (PTA; alternative findings) Ukraine [2020] UKUT 00044 (IAC), at [15]. The grounds should, in simple language, clearly and concisely identify why the decision of the First-tier Tribunal was wrong. The guidance draws attention to the observations made by McCombe LJ in VW (Sri Lanka) [2013] EWCA Civ 522, at [12]:

“Regrettably, there is an increasing tendency in immigration cases, when a First-tier Tribunal Judge has given a judgment explaining why he has reached a particular decision, of seeking to burrow out industriously areas of evidence that have been less fully dealt with than others and then to use this as a basis for saying the judge's decision is legally flawed because it did not deal with a particular matter more fully. In my judgment, with respect, that is no basis on which to sustain a proper challenge to a judge's finding of fact.”

In Secretary of State for the Home Department v Sherma Joseph [2022] Imm. A.R. 1360, the Upper Tribunal provided guidance in relation to the content of applications for permission to appeal, and in particular, the need for the application for permission to properly plead any error or errors of law. The Upper Tribunal said:

“13.

It is also essential for an application for permission to appeal to be pleaded by reference to an arguable error of law, not a disagreement of fact or weight. The right of appeal to the Upper Tribunal is on any "point of law" arising from a decision made by the First-tier Tribunal, other than an excluded decision: section 11(1) of the 2007 Act. There are many reported authorities, in this jurisdiction and from further afield, addressing the need for grounds of appeal to be pleaded properly and succinctly, and by reference to an arguable error of law. Maintaining the distinction between errors of law and disagreements of fact is essential; it reflects the jurisdictional delimitation between the first-instance role of the FTT and the appellate role of the UT, and reflects the institutional competence of the FTT as the primary fact-finding tribunal. The distinction, however, is often blurred, with unhelpful consequences. As Warby LJ put it in AE (Iraq) v Secretary of State for the Home Department [2021] EWCA Civ 948; [2021] Imm AR 1499 at [32] :

"Commonly, the suggestion on appeal is that the FTT has misdirected itself in law. But it is not an error of law to make a finding of fact which the appellate tribunal might not make, or to draw an inference or reach a conclusion with which the UT disagrees. The temptation to dress up or re-package disagreement as a finding that there has been an error of law must be resisted."

14.

Warby LJ recalled the judgment of Floyd LJ in UT (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1095 at [19] :

"… although 'error of law' is widely defined, it is not the case that the UT is entitled to remake the decision of the FTT simply because it does not agree with it, or because it thinks it can produce a better one. Thus, the reasons given for considering there to be an error of law really matter."

By the same token, those observations apply not only to this Tribunal when discharging its role under section 11(1) of the 2007 Act , but to an unsuccessful party before the FTT considering whether to make an application for permission to appeal and, moreover, to a judge considering the application.”

A decision of the FtT will always be capable of having been better expressed. Specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon them by the primary evidence. Equally, an appeal Court or Tribunal should not subject a judgment to narrow textual analysis. The decision of the FtT should not be picked over or construed as though it was a piece of legislation or a contract and the Upper Tribunal is not entitled to find an error of law simply because it does not agree with the decision, or because the Tribunal thinks the decision could be more clearly expressed.

Judges of the FtT are often required to consider a wealth of evidence in a complex area of the law that constantly evolves whether by reference to the introduction of primary or secondary legislation, changes to the Immigration Rules, or by country guidance. If a judge reaches a decision, adopting the correct burden of proof, applying the correct standard of proof addressing the issues in the appeal by weighing the evidence relevant to those issues, the Upper Tribunal will only interfere with the decision if there is an error of principle or approach, or the conclusions of the judge are clearly unsustainable.

To that end, the grounds of appeal should, in respect of each complaint, contain a succinct statement of the error committed by the judge. The relevant rules of the FtT and the Upper Tribunal require the party seeking permission to appeal to provide a copy of the decision of the FtT that is challenged. The judge deciding the application for permission to appeal will therefore have a copy of the decision of the FtT before them. Where a party simply expresses dissatisfaction with the outcome of the appeal before the FtT in very general terms, it is unlikely to be very difficult for a judge considering an application for permission to appeal, to refuse permission with brief reasons.

The purpose of the grounds of appeal is to provide clear and concise outline of the errors of a point of law that the party claims is arguable and the grounds on which that claim is made. Reciting large tracts of the decision of the FtT with commentary by the author of the grounds is neither helpful nor relevant. Each point of law, where there is more than one, needs to be clearly and succinctly identified as a ground of appeal with sufficient detail so that the Tribunal and the parties are able to identify the essential issue raised by that ground. Without being prescriptive, where the error is, for example, that the judge erred in their understanding of the legal framework, the ground should identify succinctly, in clearly numbered paragraphs, the relevant passage(s) in the decision and the authority for the proposition that the decision is vitiated by a misunderstanding of the legal framework. Where the proposition relies upon a provision set out in primary or secondary legislation, the relevant legislation should be cited only to the extent necessary to do so, together with any authority binding upon the judge that is capable of supporting the proposition. Brief submissions limited to providing a short explanation to support the ground should be set out in separate numbered paragraphs or sub-paragraphs.

The grounds of appeal will rarely need to be lengthy. Albeit in the context of grounds for review in a Judicial Review claim, as Lord Burnett (with whom King LJ and Singh LJ agreed) said in R (Dolan) v Secretary of State for Health and Social Care an another [2020] EWCA Civ 1605:

“… excessively long documents serve to conceal rather than illuminate the essence of the case being advanced. They make the task of the court more difficult rather than easier and they are wasteful of costs …”

We acknowledge the burden placed on litigants in person, however the Tribunal cannot afford excessive indulgence for non-compliance with the requirements of the rules. Whether a party is represented or not, they are required to identify the arguable errors of law in the grounds of appeal, adequately, so that the arguable error can be considered by a judge. The test at the permission stage is simply whether the ground of appeal is arguable. In most appeals, in respect of each complaint, any arguable error should be capable of being coherently encapsulated in a few short sentences.

The grounds of appeal are not an opportunity to present a list of errors no matter what the relevance of the error is to the outcome of the appeal. Instead, the grounds should focus succinctly on identifying the most compelling errors, ensuring the ground of appeal is demonstrated by clear legal reasoning and by reference to the findings made. A consequence of poorly drafted grounds of appeal is the inappropriate expenditure of judicial time in attempting to understand the basis and thrust of the application. It is only if the parties do what is properly required of them that the Upper Tribunal will be able to deal with the appeal fairly and justly in accordance with the overriding objective set out in Rule 2 of the Upper Tribunal Procedure Rules.

The Grounds of Appeal will not ordinarily be permitted to evolve during the course of the appeal. The Upper Tribunal is likely to take robust decisions and not permit grounds to be advanced if they have not been properly identified and pleaded or where permission has not been granted to raise them. Where there is any issue as to the grounds of appeal upon which permission has been granted, or the scope of the grounds that leads to an adjournment, it should not come as any surprise to the parties to an appeal that the Tribunal may impose sanctions, including the making of orders for wasted costs against the parties or their representatives.