Reduction in the Number of Asylum Appeals Heard At Court of Appeal

AIT, Appeal, Court 15 September 2011

Immigration and Asylum courts traditionally followed the view that an appeal could be granted where there was 'a real prospect of success or some other compelling reason for the taking the case further' under section 13(6) Tribunals, Courts and Enforcement Act 2007 ("TCEA 20071").

However a recent case of PR (Sri Lanka) & Ors v Secretary of State for the Home Department (Rev 2) [2011] EWCA Civ 988 (11 August 2011) has confirmed that this approach should not be adopted. In brief summary, the appellants applied for permission to appeal a decision made by the Upper Tribunal Immigration and Asylum Chamber which refused asylum and ordered deportation. They asked for the test under s.13(6) TCEA 2007 to be considered in this instance as the issue was 'compelling'. However this was subsequently refused as it was held that s.13(6) TCEA 2007 was an 'exceptional remedy' and was not required to be used in this instance.

The new provisions under section 55 Access to Justice Act 1999 provides that appeals would only be considered if the Court of Appeal believed that:

(a) the appeal would raise an important point of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it

This has dramatically reduced the scope for appeals making the criteria harder to satisfy for appellants seeking to enter the appeal process. The appeal rules governing Immigration are different to other areas of law.

The Court of Appeal held that if an appeal has failed in the Tribunal system, then there is no case or compelling reason to give further permission to appeal. Appeal would only be considered if following Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60 a decision was 'plainly wrong' or 'inconsistent with authority of a higher court' thus significantly limiting the scope for appeal.

The decision of this case may prove to be detrimental to immigration applicants and it remains to be seen what impact it will have on the appeal route.

However this judgement has not completely eradicated what may seem like a complete blow to the immigration appeal system. Appeals made on the basis that an appellant is seeking a redetermination of the merits of a decision made in the Upper Tribunal have a lower standard to satisfy and there still remains room for flexibility as it is not considered a 'second appeal' if there is a compelling reason.

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