Case No: C5/2010/1007(FA); C5/2010/1047(PD)
Neutral Citation Number: [2010] EWCA Civ 827
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL)
(IMMIGRATION AND ASYLUM CHAMBER)
[IA/11107/2007]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 28 June 2010
Before:

LORD JUSTICE SULLIVAN
and
SIR MARK WALLER
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Between:

	FA (IRAQ) and PD (INDIA)	
Appellants	
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SSHD	

Respondent	

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(DAR Transcript of 
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Mr Stephen Knafler QC and Ms Margaret Phelan (instructed by Refugee & Migrant Justice) appeared on behalf of FA.

Mr Raza Husain QC and Justine Fisher (instructed by the Immigration Advisory Service) appeared on behalf of PD.

Mr Jonathan Hall (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.

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Judgment
Lord Justice Sullivan:  

1.	On 15 February 2010 the Asylum and Immigration Tribunal was abolished and its functions were transferred to the First-Tier Tribunal.  The wheel has come full circle.  Since 15 February, we have once again a two-tier appellate structure for immigration and asylum appeals with a right of appeal with permission on a point of law from a decision of the First-Tier Tribunal to the Immigration and Asylum Chamber of the Upper Tribunal.  A further appeal lies in the Court of Appeal with the leave of either the Upper Tribunal or the Court of Appeal.  The Upper Tribunal and the Court of Appeal will not grant permission to appeal to the Court of Appeal unless they consider that:
 
"(a) the proposed appeal would raise some important point of principle or practice; or
(b) there is some other compelling reason for the [Court of Appeal] to hear the appeal."

See the Appeals from the Upper Tribunal to the Court of Appeal Order 2008 ("the Appeals Order") made by the Lord Chancellor under section 13(6) of the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act").  When deciding whether to grant permission to appeal to the Court of Appeal from determinations of the AIT, second appeal criteria were not applicable.

2.	On 15 February 2010 there were a substantial number of appeals before the AIT at various stages of the reconsideration process.  In a letter to the parties dated 10 June 2010 the Civil Appeals Office identified a number of categories: 
1. Where the hearing has taken place as a reconsideration and determination dated pre-15 February 2010, but promulgated post-15 February; 
2.  Hearings taken place as a reconsideration pre-15 February and determination date promulgated post-15 February; 
3.  First-stage reconsideration pre-15 February and second stage reconsideration heard after that date; and 
4.  Reconsideration ordered pre-15 February and heard as an appeal to the Upper Tribunal by virtue of the transitional provisions after that date.  

3.	Provision is made for the future conduct of those appeals by schedule 4 to the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 ("the Transfer Order").  The question has arisen as to whether and if so in what circumstances the Upper Tribunal and the Court of Appeal should apply second-appeal criteria when deciding whether to grant permission to appeal to the Court of Appeal in those cases falling within the transitional provisions.  These two applications for permission to appeal have been listed for hearing today because they conveniently illustrate the problem.

4.	In FA (Iraq) the appellant's appeal to the AIT was dismissed in a determination promulgated on 16 March 2009.  Reconsideration was ordered and the appeal was considered afresh at a hearing on 28 January 2010.  Immigration Judge Eldridge's determination dismissing FA's appeal on reconsideration is dated 11 February, but the determination was not sent to the appellant until 17 February 2010.
5.	Mr Knafler submits on behalf of FA, correctly in my judgment, that her appeal was determined on 11 February when the determination was signed, not on 17 February when it was sent to her.  See rules 22 and 23 of the Asylum and Immigration (Procedure) Rules 2005, which clearly distinguish between determining an appeal and sending that determination to the appellant.

6.	In PD (India) the appellant's appeal to the AIT was allowed in a determination promulgated on 23 July 2008.  Reconsideration was ordered by Senior Immigration Judge Chalkley on 11 January 2010.  The reconsideration hearing took place on 22 February 2010 and in a determination dated on that day Designated Immigration Judge Manuell set aside the earlier decision and dismissed the appellant's appeal.

7.	In his very helpful skeleton argument on behalf of the Secretary of State, Mr Hall has set out the relevant provisions of the 2007 Act, the Appeals Order and the Transfer Order, analysed the inter-relationship between them and submitted the second appeals test does not apply to any appeals which were originally decided by the AIT, and it does not therefore apply to either of these appeals.  Mr Knafler QC and Mr Husain QC have made helpful submissions to the same effect.

8.	I accept those submissions for the following reasons, which are in essence a repetition of the reasoning in the parties’ skeleton arguments.  Section 13(6) of the 2007 Act, which authorised the Lord Chancellor to make the Appeals Order provides:
 
"The Lord Chancellor may, as respects an application under subsection (4) that falls within subsection (7) and for which the relevant appellate court is the Court of Appeal in England and Wales …by order make provision for permission (or leave) not to be granted on the application unless the Upper Tribunal or (as the case may be) the relevant appellate court considers— 
(a) that the proposed appeal would raise some important point of principle or practice, or 
(b) that there is some other compelling reason for the relevant appellate court to hear the appeal.

9.	The power may therefore be exercised only "as respects an application under subsection (4) which falls within subsection (7)."

10.	Subsections (4) and (7) provide as follows:

“Permission (or leave) may be given by— 
(a) the Upper Tribunal, or 
(b) the relevant appellate court, 
on an application by the party.”
…
(7) An application falls within this subsection if the application is for permission (or leave) to appeal from any decision of the Upper Tribunal on an appeal under section 11.”

11.	It is also sensible to mention subsection (5) of section 13:

"An application may be made under subsection (4) to the relevant appellate court only if permission (or leave) has been refused by the Upper Tribunal.”

12.	The right of appeal under section 11 is "a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.": see section 11(1).  The second appeal test  therefore applies only to applications for permission to appeal from a decision of the Upper Tribunal on an appeal from a decision made by the First-Tier Tribunal.  In such circumstances the Court of Appeal will be being asked to consider a second appeal, there having been an appeal from the First-Tier Tribunal's decision to the Upper Tribunal.

13.	It was of the essence of the single-tier appellate system introduced by the Asylum and Immigration (Treatment of Claimants) Act 2004 ("the 2004 Act"), which replaced the previous two-tier appellate system with the AIT, that there was within the AIT itself no appeal against an initial determination that was materially erroneous in law.  The defective determination was reconsidered by the same body (the AIT) which had made the original decision.  See DK (Serbia) v SSHD [2008] 1 WLR 1246; [2006] EWCA Civ 1747 per Latham LJ at paragraph 22.  If permission to appeal was granted to appeal to the Court of Appeal, it would be the first appeal from the AIT's determination, notwithstanding how many occasions on which the determination had been reconsidered by the AIT.

14.	It follows that unless there is an express provision, or it must necessarily be implied, that applications for permission to appeal against decisions originating in the AIT are to be treated not merely as applications for permission to appeal against decisions of the Upper Tribunal, but as applications for permission to appeal against decisions of the Upper Tribunal on appeal from a decision of the First-Tier Tribunal.  The Appeals Order introducing the second appeal criteria does not apply to such applications.

15.	While the transitional provisions in the Transfer Order do make provision for the future conduct of reconsiderations that are "in the pipeline" on 15 February 2010, as appeals to the Upper Tribunal, they do not provide that, for the purposes of section 13(6), the AIT's (defective) decision against which the appeal is being made to the Upper Tribunal is deemed to have been a decision of the First Tier Tribunal.

16.	For present purposes the relevant paragraphs in schedule 4 to the Transfer Order are principally paragraphs 3 and 4:

"3. Where the Asylum and Immigration Tribunal or the appropriate court has made an order for reconsideration under section 103A of the 2002 Act before 15 February 2010, but reconsideration has not taken place before that date, the order for reconsideration shall be treated as an order granting permission to appeal to the Upper Tribunal under section 11 of the 2007 Act and sections 12 and 13 of the 2007 Act shall apply.
4. Where the reconsideration of an appeal by the Asylum and Immigration Tribunal under section 103A of the 2002 Act has commenced before 15 February 2010 but has not been determined, the reconsideration shall continue as an appeal to the Upper Tribunal under section 12 of the 2007 Act and section 13 of the 2007 Act shall apply.”

17.	So far as examples 1 to 3 in the letter from the Civil Appeals Office are concerned, there can be no doubt that second appeal criteria do not apply.

18.	The only possible area of doubt relates to the fourth example, where reconsideration was ordered prior to 15 February and it was then heard as an appeal to the Upper Tribunal by virtue of the transitional provisions in paragraph 3.  Mr Hall submitted that those provisions were not sufficient to bring the second appeals criteria into play because, while the order for reconsideration was to be treated as an order granting permission to appeal to the Upper Tribunal under section 11 of the 2007 Act, the paragraph did not expressly state that the order for reconsideration was to be treated as an order granting permission to appeal to the Upper Tribunal from a decision of the First-Tier Tribunal.  He submitted that it would need such express words to bring the second appeal criteria into play.

19.	Mr Knafler and Mr Husain adopted that submission and Mr Husain pointed to another provision in schedule 4, paragraph 13(3) which is concerned principally with time limits for service where there is an express provision deeming a determination of the AIT to be a determination of the First-Tier Tribunal.  Paragraph 13(3) is in these terms:

"Where an appeal or application has been determined by the Asylum and Immigration Tribunal before the transfer date but the determination has not been served on the parties before that date, the determination shall be treated as if it were a determination of the First-tier Tribunal or (if it follows reconsideration) a determination of the Upper Tribunal, as the case may be, and the determination may be served accordingly.”
Mr Hall submitted that this provision and paragraph 14(4) in schedule 4, which is concerned with the continuing validity of directions or orders, were simply concerned with detailed matters, such as service of decisions for the purpose of time limits and with procedural orders and directions respectively.

20.	 I accept the parties' submissions that even in the fourth class of case the second appeal criteria do not apply.  There is no express provision deeming the initial decision of the AIT to be a decision of the First-Tier Tribunal.  Further consideration of the case is treated as an appeal to the Upper Tribunal, but it is not, for the purposes of considering permission to appeal to the Court of Appeal, an appeal to the Upper Tribunal from a decision of the First-Tier Tribunal.

21.	It follows that in all of the cases identified in the Civil Appeals Office letter, second appeal criteria do not apply to applications for permission to appeal to the Court of Appeal.  That conclusion accords with common sense.  The 2004 Act drew a clear distinction between an appeal against a decision and a reconsideration of that decision.

22.	In both of these cases, the hearing which took place, one a few days before and the other a few days after 15 February 2010, was both in form and in substance a reconsideration of the earlier determination and not an appeal against it.

23.	The determination in FA (Iraq) is described as a second-stage reconsideration and that in PD (India) as a reconsideration.  Perhaps more importantly, the content of each determination makes it clear that what was actually being carried out was a reconsideration of the earlier decision by the AIT and not an appeal against it.

24.	It is against that background, then, that I turn to these two applications for permission to appeal.  In FA the Secretary of State accepts not merely that permission to appeal should be granted, but also that the appeal should be allowed and the matter remitted to the Upper Tribunal on a limited ground. That is because Immigration Judge Eldridge failed to give proper attention to the interests of one of the appellant's children, who has severe Down’s syndrome.

25.	On behalf of FA, Mr Knafler submitted that permission to appeal should be granted on wider grounds.  Very briefly, by way of background, the appellant is a citizen of Iraq.  She and her family were Sunni Muslims who were living in a Shia area.  Her husband worked at a large hotel, the Hotel Palestine, which was used by Americans.  In summary, there were threats to her husband.  He was fired at.  There was an attempt to abduct her older son, which was foiled because the headmistress let him out of the school by a rear entrance.  The threats then moved from the hotel to their home, following which they fled to Jordan.  The appellant and her sons came to the United Kingdom.

26.	 The Immigration Judge rejected the appellant's account as not credible.  The most significant passage is contained in paragraph 44 of the determination, which is in these terms:
/
"It was accepted by the respondent that the appellant did work at the Palestine Hotel.  It is not disputed that many Americans were using that Hotel as their base at the time and that it had been subject to attack.  Having said that, one of the matters that caused me the greatest concern in this context was, if the husband was being specifically targeted because of the nature of his work, why did he continue to work there for so long and in the face of apparent repeated threats not just to him, but also to his family?  On the Appellant's account [it] was for about 18 months before she left Iraq and then a further five months after that.  On each occasion after one of the instances described, he returned to work and appears to have continued to work there for a considerable period before he reunited with his family in Jordan.  I did not find that this sat easily with a family fleeing the country because of the dangers generated by his work.  I did not [find] any convincing reason had been given for his continuing in employment in the face of the dangers alleged.  If there were genuine and serious threats, not only to him but to his family as well, I could not understand how over so many months and continuous returns to work these had not been carried to fruition at work or at home."

27.	Mr Knafler submitted that in searching for a "convincing reason" the Immigration Judge was inadvertently applying too high a standard of proof.  Mr Hall submitted that one should not pluck that phrase out and consider it in isolation.  If one looked at other passages in the determination, for example in paragraphs 42 and 50, one could find the Immigration Judge correctly directing himself that the lower standard was proof was appropriate.

28.	While I would readily accept the submission that individual words should not be plucked out of context, I am concerned that the Immigration Judge in seeking a more convincing explanation for the appellant's husband remaining at work was, even if inadvertently, applying a standard of proof that was too high.

29.	There was an expert's report which had explained that because of the greater protection at the hotel, so long as the husband continued working at the hotel, he was in fact more safe than if he returned home.  The family's account was that once the threats moved from the hotel to their home, they fled to Jordan.  That account is not in the least implausible.  Moreover, there was another very obvious reason why the appellant's husband continued at work.  At that time Iraq was in a state of chaos, but the appellant and her family, which it will be recalled included the two children, had to live.  It may well be that the appellant's husband felt obliged to continue to work simply so that he could provide for his family.  The Immigration Judge appears to have approached the matter on the basis that it would have been relatively easy to avoid the danger and also make essential provision for the family, but it is arguable this was not a fair reflection of the conditions in Iraq as described in the expert evidence that was before the Immigration Judge.

30.	For these reasons it seems to me that the wider grounds urged by Mr Knafler are at least arguable and that permission to appeal ought to be granted on those grounds.  It would be for the Secretary of State to consider whether or not, since it is conceded that the appeal should be allowed on the narrower ground, it would be a sensible course to have an appeal hearing on the other ground.  That is a matter for the Secretary of State to consider.  For my part, I would simply give permission to appeal on all the grounds raised in the Notice of Appeal.

31.	In the case of PD, she is an Indian citizen.  She is a widow who came to the United Kingdom in 2004 as an overseas domestic worker.  Her case was that she had been ill-treated by her employers in the United Kingdom over a period of years.  After a particular violent incident in 2008, she escaped from them and sought asylum.

32.	In a determination dated 21st July 2009 Immigration Judge Sharp accepted her account of what had occurred in the United Kingdom, but the question then arose as to whether she could safely return to India.  Immigration Judge Sharp concluded in paragraphs 109 and 110 of his determination:

"109…I accept that [her employer’s] parents' belonged to an influential and higher class family in that area.  I accept on the objective evidence and the expert's evidence that they may well be able to exercise influence against her as a low caste widow should she return to the immediate area.  I accept that it is reasonable for her to fear this in view of the history of her case. … 

110 In such circumstances, I accept it would not be reasonable for her to return to her own area.  This is so because she has a reasonable fear of the influence of her employers’ family and it is my view from the objective evidence in the expert's report that the family might make it difficult for her in that area to such an extreme nature as might constitute inhuman or degrading treatment.  I do not find that it is likely that the family will kill her. ..."

33.	 Reconsideration was ordered by Senior Immigration Judge Chalkley on the basis that those findings were based on pure speculation (see paragraphs 30 to 34 of Designated Immigration Judge Manuell's determination, dated 22 February 2010).  Designated Immigration Judge Manuell agreed, saying in paragraph 45 of his determination:

"…There was no evidence that all of the respondent's extensive family had rejected her, even if she was semi estranged from some as Immigration Judge Sharp found and others were not in a position to render her financial support.  As Senior Immigration Judge Chalkley pointed out... there was simply no cogent evidence to show that it is reasonably likely that there are any risks to the Respondent in her own area of India which approach a real risk.  The discrimination she may well face as a low caste widow does not amount to persecution.  There is thus no need for her to relocate at all outside her home area away from her relatives and the district she knows, unless she chooses to do so for the sake of better employment opportunities."

34.	On behalf of the appellant, Mr Husain submitted that Immigration Judge Sharp's findings were not speculative, although he fairly accepted that they were perhaps generous to the appellant.  His submission was that there was no case for reconsideration because Immigration Judge Sharp's determination was not legally defective.

35.	Mr Hall submitted that there was no merit in this application for permission to appeal.  It mattered not whether one applied the conventional test or the second appeal test for the purpose of deciding whether or not permission to appeal should be granted, because it was plain, as both Senior Immigration Judge Chalkley and Designated Immigration Judge Manuell had found, that Immigration Judge Sharp’s conclusions were based on pure speculation.  While the parents of the wife, the husband and wife team who, together with her husband, had been the appellants' employers in the United Kingdom might well have been able to exercise some influence, there was simply no evidence that they might be minded to do so and certainly no evidence to support the proposition that whatever influence they might have been able to exert would have been such as to amount to inhuman or degrading treatment of the appellant.  Those findings were ones which were not rationally open to Immigration Judge Sharp and there is no arguable error of law in Designated Immigration Judge Manuell's determination to that effect.

36.	For my part therefore, I would not grant permission to appeal in the case of PD.

37.	I should mention that we were invited to give more general guidance as to the manner in which the second appeal criteria should be applied in the context of immigration and asylum claims.  Whether or not such guidance might be desirable, it does not seem to me that these applications are the cases in which it would be appropriate to give it since it is agreed on all hands that the second appeal criteria do not apply.  If guidance is to be given it should be given in the context of an application for permission to appeal where it would or might make a real difference, for example because an applicant would have a real prospect of success, but the appeal would not raise an important point of principle or practice.
 
38.	For these reasons, therefore, I would grant FA's application for permission to appeal and refuse PD's application for permission to appeal.
 
Sir Mark Waller:

39.	 I agree that the second appeal criteria do not apply to either of the applications before us today for the reasons given by my Lord.
 
40.	I would just add that I am relieved to be able to reach that conclusion despite some hesitation in relation to the fourth example in the Court of Appeal letter of 10 June 2010.  I say that because it will now, as it seems to me, be a straightforward question  in relation to all future applications in which it has to be considered whether the second appeal criteria applies: is the decision of the Upper Tribunal for which permission to appeal is being sought, itself a decision on appeal from a decision of a First Tier Tribunal?  Only if it is, do the second appeal criteria apply.

41.	I also agree with my Lord that this is not a suitable case in which to give guidance as to how the second appeal criteria should be applied.  And I also agree with him as to the disposal of the applications before us.

Order: FA granted; PD refused