Safi and others (permission to appeal decisions) [2018] UKUT 388 (IAC): Construing grants of permission

Ahmed Osman of One Pump Court summarises the recent Upper Tribunal decision of Safi and others. Ahmed is undertaking pupillage in the immigration and housing teams. He will be available to accept instructions as of April 2018.

In the case of Safi and others the Upper Tribunal dealt with the issue of the construction of permission decisions. Clearly frustrated at having to spend time on this point, the Upper Tribunal laid down conclusive guidance on the form that permission decisions should take in the future.

Background

The case concerned 9 Afghan asylum seekers who famously hijacked a commercial aircraft in 2000 and forced the pilot to fly it to the UK in order to escape the Taliban. They claimed asylum in the UK and after a lengthy delay, decisions were made in respect of their asylum claims.

They had succeeded in 2013 in respect of their claims that removal from the UK would constitute a breach of their rights under Article 3 ECHR. However the issue of whether they were entitled to refugee status was determined against them on 7 July 2015 on the basis that their actions in hijacking the plane meant they were excluded from refugee status under Article 1F(b) of the Refugee Convention for having committed a serious non-political crime.

They all applied for permission to appeal to the Upper Tribunal on a point of law against that determination on 4 grounds. One of the appellants named Khalil Ullah also advanced a fifth ground of appeal. The First-tier Tribunal granted permission to appeal to the Upper Tribunal. However in so doing, the judge who granted permission stated that ground 2 and 3 of the Appellants’ grounds were not arguable but that ground 1 was arguable. The Secretary of State therefore sought to argue that the Upper Tribunal did not have jurisdiction to consider the other grounds of appeal that had been advanced as the First-tier Tribunal had only granted permission on ground 1.

Judgment

The matter came before Lane J, President of the Immigration and Asylum Chamber of the Upper Tribunal and Upper Tribunal Judge Dawson. Lane J giving the judgment of the Upper Tribunal found that permission to appeal had been granted on all grounds and that permission had not been limited to specific grounds as contended by the Secretary of State.

This was because Blake J in Guidance Note 2011 No.1 entitled ‘Permission to appeal to the UTIAC’ stated that if permission was to be granted on limited grounds then this should be expressly and precisely articulated. This approach was supported by the case of Ferrer (limited appeal grounds: Alvi) [2012] UKUT 304 (IAC). This is in order to avoid time being spent on construing the permission decision and to enable the Tribunal staff and the parties to be plainly aware if permission had been granted on only limited grounds. It also impacts whether or not there is a need for the proposed Appellant to exercise their right to apply to the Upper Tribunal directly for permission on the grounds which had been unsuccessful.

Furthermore the case of Secretary of State for the Home Department v Rodriguez; Mandalia and Patel v Secretary of State for the Home Department [2014] EWCA Civ 2 (‘Rodriguez’) established that if there is ambiguity in the permission decision from the language of the reasons then that is to be resolved in the favour of the person that applied for permission.

Therefore taking the above principles Lane J held that the grant of permission was not limited because the decision section read that permission had been granted without any limitation and that applying Rodriguez the reasons section of the permission decision was ambiguous. This was because nothing had been said about ground 4 and Khalil Ullah’s ground 5 which suggested that the judge was merely indicating to the Upper Tribunal which grounds should be concentrated upon rather than it being an explicit limitation of the grant.

The Secretary of State also argued that given that the judge granting permission held two grounds to be unarguable, permission could not have been granted on those two grounds. Lane J rejected that argument. He held that section 11(1) of the Tribunals, Courts and Enforcement Act 2007 allowed a judge to grant permission to appeal on a point of law and that this was not limited to only arguable errors of law. The judge can grant permission even if the judge believes that there is no arguable error in the First-tier Tribunal’s determination so long as the judge is of the opinion that the point of law being raised is of such significance that the Upper Tribunal should be seized of the matter.

The Upper Tribunal then set out further principles to be followed in the future regarding permission decisions which are as follows:

If a grant of permission is limited than this must be absolutely clear.

The limit of the grant of permission must be set out in the decision section of the permission decision and not in the reasons section which should only be used for explaining why permission had been granted or refused as the case may be.

It is only likely to be in very exceptional circumstances that the Upper Tribunal will entertain submissions on whether a grant of permission was limited where on its face permission had been granted without express limitation.

Commentary

This is a welcome decision as it is sets out that in future a permission decision must state expressly in the section of the standard form document whether permission has been granted with or without limitation. Essentially, if the Tribunal states in that section that “permission to appeal is granted”, and then goes on in the ‘reasons for decision’ section to express a negative opinion on certain grounds, this will not inhibit an Appellant from advancing all grounds at the hearing before the Upper Tribunal.

This approach avoids time being needlessly spent on arguing about the scope of the appeal to the Upper Tribunal. It also avoids the injustice in the case of an unclear grant of permission of the Appellant missing their opportunity to apply for permission to appeal directly to the Upper Tribunal on those grounds where permission had been refused. This may be especially true for litigants in person who would more likely be confused in a case where the decision section says permission is granted and the reasons section then goes on to limit that grant of permission.

The guidance note of Blake J also noted that on a practical level permission on limited grounds should be avoided as grounds which the judge considering permission does not consider arguable would be of use to the judge hearing the appeal in the Upper Tribunal. Lane J added that granting permission on limited grounds would also delay proceedings as the case would not be listed until the party applying for permission is given the opportunity to apply for permission direct to the Upper Tribunal on those grounds which had been refused permission. Let’s hope that this advice is heeded by judges of the First-tier Tribunal.

As the determination was only recently promulgated, Appellants will need to be alive to routine arguments put forward by the Respondent that they cannot argue certain grounds because of opinions expressed in the ‘reasons for decision’ section. Plainly this position cannot be sustained without doing violence to the language of the headnote in Safi.

Ahmed Osman

 

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