[2025] UKUT 00150 (IAC)

The Tribunals may grant or refuse permission on all or any of the grounds of appeal or, direct an oral hearing. Where permission is granted, the focus of the Upper Tribunal will be limited to only those grounds of appeal for which permission has been granted. Appeals must be conducted with an appropriate degree of procedural rigour and the clear identification of the grounds upon which permission has been granted provides an adequate opportunity for the preparation of a response under rule 24 of the Upper Tribunal Rules by the other party.

The joint Presidential Guidance states:

“48.

… A judicial observation on the merits of other grounds that have not caused permission to be granted may be of value to the judge seised of the appeal, who will be able to direct the parties to those grounds which are considered to have arguable merit.

49.

If nevertheless it is decided permission should only be granted on limited or restricted grounds, the Judge must state this clearly and expressly in the section of the standard form that contains the decision. The judge must also set out reasons why permission has been refused on some grounds. It is only in very exceptional circumstances that the UT will be persuaded that a decision which, on its face, grants permission to appeal without express limitation is to be construed as anything other than a grant of permission on all of the grounds accompanying the application for permission, regardless of what might be said in the reasons for decision section of the document (see Safi and others (permission to appeal decisions) [2018] UKUT 388 (IAC)).”

In Safi and Others v Secretary of State for the Home Department [2019] Imm. A.R. 437, a Presidential panel of the Upper Tribunal made it clear that judges intending to grant permission to appeal to the Upper Tribunal only on limited terms had to make that fact absolutely clear. The focus of the Tribunal was upon the scope of the grant of permission. The Tribunal gave examples of appropriately stated decisions and suggested suitable formulations for the ‘reasons for decision’ section of the standard decision document for situations where, although permission had been granted generally, the judge considered that certain of the grounds would not have given rise to a grant in themselves.

As to a grant of permission on limited grounds the Tribunal referred to the decision of the Upper Tribunal in Ferrer (limited appeal grounds; Alvi) [2012] UKUT 00304 (IAC), which was dealing with the predecessor of the 2014 procedure rules, noting:

“23.

… the First-tier Tribunal should consider carefully the utility of granting permission only on limited grounds. Given that the effect of any grant of permission to the Upper Tribunal is to set in train proceedings on the case in question in the Upper Tribunal, a grant of permission on limited grounds will not, in practice, often be as helpful to the parties or to the Upper Tribunal as would a general grant of permission by reference to all of the applicant's grounds, which nevertheless expressly identifies the ground or grounds that are considered by the First-tier Tribunal to have the strongest prospect of success. In this way, the First-tier Tribunal identifies the likely ambit of the forthcoming Upper Tribunal proceedings, which – if that Tribunal concurs – can then form the backdrop for the Upper Tribunal's subsequent case management directions under rule 5 of the Tribunal Procedure (Upper Tribunal) Rules 2008 ("the Upper Tribunal Rules"). It should also be noted that rule 15(1)(a) and (b) of those Rules expressly enables the Upper Tribunal to give directions as to the issues on which it requires evidence or submissions and the nature of the evidence or submissions it requires."

In Safi and others, having concluded that if there is ambiguity arising from the language of the ‘reasons given’, that such ambiguity is to be resolved in favour of the applicant: particularly where the opening part of the Order concerning the actual grant of permission was unqualified, the Tribunal declined the invitation to provide general guidance as to how limited grants of permission to appeal are to be framed. The Tribunal referred to the Guidance Note 2011/No 1, as amended, issued by Blake J (President) in 2011. The Tribunal recognised that there will inevitably be cases where one or more of the grounds of appeal arguably establish that the decision of the FtT is infected by an error on a point of law, but other grounds of appeal have little or no merit. The question that arises is whether the judge considering the application for permission to appeal is bound to refuse permission on the grounds the judge considers to be unmeritorious. The Tribunal said:

“31.

It is not, in fact, the case that permission to appeal cannot be granted to the Upper Tribunal unless the granting judge is satisfied that there is an arguable error of law in the decision of the First-tier Tribunal. Section 11(1) of the Tribunals, Courts and Enforcement Act 2007 confers a right of appeal "on any point of law arising from a decision", other than an excluded decision. It is, therefore, possible for permission to be granted, even where it is not considered by the granting judge that the First-tier Tribunal has arguably made a legal error, if the point of law in question is, in the granting judge's view, of such significance as to make it desirable for the Upper Tribunal to become seized of the matter.”

That in our judgment must be correct. If the Upper Tribunal is seised of an appeal because a judge is satisfied that there is an arguable error of law on one ground, it can often be difficult to disentangle that error from other conclusions reached by the judge in the same decision. If, for example, an arguable error is demonstrated by the grounds as to a judge’s analysis of a particular facet of an Article 8 claim being advanced, it is likely to be problematic if permission to appeal on a separate ground, for example alleging that the judge erred in their overall analysis of ‘proportionality’, is refused. The error in the assessment of a discrete aspect of the Article 8 claim is likely to impact upon the overall proportionality of the decision. The Upper Tribunal, on appeal, should not be constrained from holistically considering critical issues capable of affecting the outcome of the appeal.

That is not to say that a judge considering an application for permission to appeal should never limit the grant of permission, where the ground relates to a discrete aspect of the decision. Limiting the grounds for granting permission to appeal can in a clear case make the appellate process more efficient and focused. For example, if grounds of appeal are directed to an international protection claim, a judge might properly conclude that there is an arguable claim that the judge’s decision as to ‘the risk upon return to a person’s home area and whether sufficient protection is available’ is vitiated by a material error of law, but grounds directed to the Article 8 claim, are discrete and wholly divorced from the ground that is arguable. It is perfectly proper for a judge to conclude that permission should be limited to the former ground(s) and refused on the latter ground(s), with reasons.

Here too, the parties and their representatives have an important role. It is primarily their responsibility to ensure that the grounds of appeal are presented in a concise and coherent manner. Properly structured grounds of appeal identifying the error on a point of law, and the consequence of the alleged error upon the decision enables the judge considering the application for permission to appeal to understand the issues that will arise in the appeal and whether any error is material. Unfocused grounds of appeal lead to unnecessary confusion regarding the identification of the errors that lie at the heart of the appeal before the Upper Tribunal and do not assist the Tribunal to further the overriding objective.

We now turn to the grounds of appeal and the grant of permission to appeal in these two appeals. Because they lie at the heart of the issues that we have considered in this decision, we set out the grounds of appeal to the Upper Tribunal and the grant of permission to appeal, in full. In each case, the grounds of appeal are unnecessarily lengthy and lack focus. The judges considering the application for permission to appeal have had to distil the grounds to their essence and set out in summary, the errors claimed.