G & H, R (on the application of) v Secretary of State for the Home Department  EWHC 239 was acknowledged by the Administrative Court to be “ one of those rare cases in which the court has given permission to proceed in an application for judicial review of an Upper Tribunal FTT permission refusal”. As was noted by the Court at paragraph 5 of their judgement, one of the features of the case was that the Secretary of State advanced contentions which, even though the claimant had satisfied the test identified in Cart and other procedural requirements in CPR 54.7A, would require the claimant to surmount a new substantive hurdle limiting the grounds upon which the High Court can grant judicial review.
As set out from the outset at paragraph 8 of the judgement, the Court concluded that:
- an Upper Tribunal First Tribunal Tier(FTT) permission refusal does not attract special substantive restrictions on the circumstances when the High Court can grant judicial review;
- the Upper Tribunal decision refusing permission to appeal was wrong in law and must be quashed;
- the matter must be remitted to the Upper Tribunal to reconsider the matter and reach a decision on permission to appeal in accordance with the judgment of the court.
The judgment in G & H is very lengthy, running to 214 paragraphs, however although the conclusions can be summarised above, it is the considerations and reasoning of the Court that makes most interesting reading.
Under section 11 of the Tribunals, Courts and Enforcement Act (“TCEA 2007”) a decision of the FTT may, unless it is a decision excluded by section 11(5) (“a section 11 excluded decision”), be appealed to the Upper Tribunal on a point of law. Such an appeal lies, however, only with the permission of the FTT or the Upper Tribunal
Under section 13 of TCEA 2007 a decision of the Upper Tribunal may be appealed to the relevant appeal court. The Upper Tribunal is required by section 13 to specify the relevant appeal court. As the present case in G & H had links only to England, the relevant appeal court would be the Court of Appeal of England and Wales (“the Court of Appeal”).
In relation to an appeal from the Upper Tribunal to the Court of Appeal there are restrictions on the right of appeal which include the following:
- such an appeal lies only with the permission of the Upper Tribunal or the Court of Appeal;
- the Lord Chancellor is empowered by section 13(6), and has exercised that power, to restrict the grant of permission to cases considered by the Upper Tribunal or the Court of Appeal to meet “the section 13(6) criteria”; and
- there is no right of appeal against a decision of the Upper Tribunal excluded by section 13(8) (“a section 13 excluded decision”).
An Upper Tribunal FTT permission refusal is therefore a section 13 excluded decision. Accordingly the only way in which an Upper Tribunal FTT permission refusal may be challenged in England and Wales is by an application to the High Court for judicial review.
The special procedures applying to such a judicial review are set out in CPR 54.7A, along with paragraph 19 of Practice Direction 54A. These provisions, with effect from 1 October 2012, introduced a “fair but streamlined” system as contemplated by the Supreme Court in R (Cart) v Upper Tribunal  UKSC 28,  1 AC 663; see in particular the speech of Lord Dyson JSC at paragraph 132 and observations by Lady Hale JSC at paragraph 58, Lord Phillips of Worth Matravers PSC at paragraph 93, Lord Brown of Eaton-under-Heywood JSC at paragraph 101 and Lord Clarke of Stone-cum-Ebony JSC at paragraph 106.
Another aspect of the streamlining provided by CPR 54.7A is that the grant of permission may have a special consequence in the form of what is, in effect, a summary disposal in favour of the claimant. CPR 54.7A(9) provides that, unless the defendant or an interested party requests a hearing, the court will make a final order quashing the Upper Tribunal’s refusal of permission. In G & H, the Home Secretary requested a hearing. Thus, as is expressly contemplated by CPR 54.7A, there was no summary disposal.
THE SECOND APPEALS TEST
One of the matters which is streamlined under CPR 54.7A) is the procedure for consideration of permission to proceed. In that regard, among other things, CPR 54.7A(7) states:
“(7) The court will give permission to proceed only if it considers –
(a) that there is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First-tier Tribunal against which permission to appeal was sought are wrong in law; and
(b) that either –
(i) the claim raises an important point of principle or practice; or
(ii) there is some other compelling reason to hear it”.
The Court in G & J summarised at paragraph 27 of the judgement, that there are two broad requirements under CPR 54.7A(7). They are cumulative: both must be satisfied in order to gain permission to proceed. The first is in paragraph (7)(a): there must be an arguable case with a reasonable prospect of success that both the Upper Tribunal FTT permission refusal sought to be challenged in the judicial review, and the FTT decision sought to be challenged by way of appeal to the Upper Tribunal, were wrong in law.
At paragraph 28, the Court stated that the second broad requirement is in paragraph (7)(b). It embodies the decision of the Supreme Court in Cart that judicial review of an Upper Tribunal FTT permission refusal should be permitted to proceed only if the claim meets a test substantially identical to the test under CPR 52.13 for permission to bring a second appeal. There are two limbs which provide alternative ways of meeting that test. The first, now set out for Upper Tribunal FTT permission refusals in CPR54.7A at paragraph (7)(b)(i), is by showing that the claim raises an important point of principle or practice. The second, now set out for Upper Tribunal FTT permission refusals in CPR54.7A at paragraph (7)(b)(ii), is by showing that there is some other compelling reason to hear the claim.
PR (Sri Lanka) & Ors v Secretary of State for the Home Department  EWCA Civ 988:
The Court of Appeal in PR(Sri Lanka) heard three renewed applications for permission to appeal against decisions of the Upper Tribunal Immigration and Asylum Chamber. The cases had all been identified as possible test cases on the application of the “second-tier appeals test” (under section 13(6) of the Tribunals Courts and Enforcement Act 2007) to immigration and asylum cases.
In G &H, the Administrative Court, reiterated that the three cases in PR(Sri Lanka were test cases on the application of the section 13(6) criteria to immigration and asylum cases. The section 13(6) criteria are materially identical to the second appeals test. It was noted that when discussing those criteria, Carnwath LJ made express reference to the Supreme Court decision in Cart. Carnwath LJ’s observations accordingly were considered highly relevant not only to the second appeals test as embodied in the section 13(6) criteria but also to that test as now embodied in CPR 54.7A(7)(b):
“7.Authoritative guidance on the operation of the second appeals test under the 1999 Act was given by Dyson LJ (with Tuckey LJ) in Uphill v BRB (Residuary) Ltd  EWCA Civ 60, approved by the then Master of the Rolls (Lord Phillips) and Vice-President (Brooke LJ), but “not intended to be exhaustive”. Of the first limb (“important point of principle or practice”), he distinguished between (a) establishing a principle or practice and (b) applying it correctly; only the former would justify a second appeal (para 18).
8.Of the second limb (“compelling reason”) he said:
“24 (1) A good starting point will almost always be a consideration of the prospects of success. It is unlikely that the court will find that there is a compelling reason to give permission for a second appeal unless it forms the view that the prospects of success are very high. That will usually be a necessary requirement, although as we shall explain, it may not be sufficient to justify the grant of permission to appeal. This necessary condition will be satisfied where it is clear that the judge on the first appeal made a decision which is perverse or otherwise plainly wrong. It may be clear that the decision is wrong because it is inconsistent with authority of a higher court which demonstrates that the decision was plainly wrong. Subject to what we say at (3) below, anything less than very good prospects of success on an appeal will rarely suffice. In view of the exceptional nature of the jurisdiction conferred by CPR r 52.13(2), it is important not to assimilate the criteria for giving permission for a first appeal with those which apply in relation to second appeals.
“(2) Although the necessary condition which we have mentioned at (1) is satisfied, the fact that the prospects of success are very high will not necessarily be sufficient to provide a compelling reason for giving permission to appeal. An examination of all the circumstances of the case may lead the court to conclude that, despite the existence of very good prospects of success, there is no compelling reason for giving permission to appeal. For example, if it is the appellant’s fault that the first appeal was dismissed, because he failed to refer to the authority of a higher court which demonstrates that the decision on the first appeal was wrong, the court may conclude that justice does not require this court to give the appellant the opportunity to have a second appeal. There is a reason for giving permission to appeal, but it is not compelling, because the appellant contributed to the court’s mistake. On the other hand, if the authority of a higher court which shows that the decision on the first appeal was wrong post-dated that decision, then there might well be a compelling reason for giving permission for a second appeal.
(3) There may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not very high. The court may be satisfied that there are good grounds for believing that the hearing was tainted by some procedural irregularity so as to render the first appeal unfair. Suppose, for example, that the judge did not allow the appellant to present his or her case. In such a situation, the court might conclude that there was a compelling reason to give permission for a second appeal, even though the appellant had no more than a real, as opposed to fanciful, prospect of success. It would be plainly unjust to deny an appellant a second appeal in such a case, since to do so might, in effect, deny him a right of appeal altogether.” (emphasis added)
- It is true that Lady Hale and Lord Dyson in Cart acknowledged the possible relevance of the extreme consequences for the individual. However, as we read the judgments as a whole, such matters were not seen as constituting a free-standing test. In other words “compelling” means legally compelling, rather than compelling, perhaps, from a political or emotional point of view, although such considerations may exceptionally add weight to the legal arguments”.
Secretary of State For the Home Department v Maheshwaran  EWCA Civ 173:
The case concerned a proposition, advanced on behalf of Mr Maheshwaran, that: if the Home Secretary does not challenge an assertion of fact made by a claimant before an adjudicator and the adjudicator does not raise with the claimant doubts about the veracity of his assertion, the adjudicator is bound to accept that assertion as proved if not to do so may be material to his determination. The Court of Appeal considered that this proposition was too broadly framed.
The Court of Appeal’s judgment dealt extensively with the role of adjudicators, and with the general requirements of procedural fairness. Among other things, the judgment stated in paragraphs 3 to 6:
“3.Those who make a claim for asylum must show that they are refugees. The burden of proof is on them. Whether or not a claimant is to be believed is frequently very important. He will assert very many facts in relation to events far away most of which no one before the adjudicator is in a position to corroborate or refute. Material is often adduced at the last minute without warning. From time to time the claimant or the Home Secretary are neither there nor represented and yet the adjudicator carries on with his task. He frequently has several cases listed in front of him on the same day. For one reason or another not every hearing will be effective. Adjudicators can not be expected to be alive to every possible nuance of a case before the oral hearing, if there is one, starts. Adjudicators in general will reserve their determinations for later delivery. They will ponder what has been said and what has not been said, both before the hearing and at the hearing. They will look carefully at the documents which have been produced. Points will sometimes assume a greater importance than they appeared to have before the hearing began or in its earlier stages. Adjudicators will in general rightly be cautious about intervening lest it be said that they have leaped into the forensic arena and lest an appearance of bias is given.
4.Undoubtedly a failure to put to a party to litigation a point which is decided against him can be grossly unfair and lead to injustice. He must have a proper opportunity to deal with the point. Adjudicators must bear this in mind. Where a point is expressly conceded by one party it will usually be unfair to decide the case against the other party on the basis that the concession was wrongly made, unless the tribunal indicates that it is minded to take that course. Cases can occur when fairness will require the reopening of an appeal because some point of significance – perhaps arising out of a post hearing decision of the higher courts – requires it. However, such cases will be rare.
5.Where much depends on the credibility of a party and when that party makes several inconsistent statements which are before the decision maker, that party manifestly has a forensic problem. Some will choose to confront the inconsistencies straight on and make evidential or forensic submissions on them. Others will hope that ‘least said, soonest mended’ and consider that forensic concentration on the point will only make matters worse and that it would be better to try and switch the tribunal’s attention to some other aspect of the case. Undoubtedly it is open to the tribunal expressly to put a particular inconsistency to a witness because it considers that the witness may not be alerted to the point or because it fears that it may have perceived something as inconsistent with an earlier answer which in truth is not inconsistent. Fairness may in some circumstances require this to be done but this will not be the usual case. Usually the tribunal, particularly if the party is represented, will remain silent and see how the case unfolds.
5.The requirements of fairness are very much conditioned by the facts of each case. This has been stressed in innumerable decisions – see the many citations to this effect in Rees v Crane  2 A.C.173. We have no doubt that the claimant’s submission is framed in terms which are far too wide and in words which are not to be rigidly applied to every situation. Whether a particular course is consistent with fairness is essentially an intuitive Judgment which is to be made in the light of all the circumstances of a particular case – see R v Secretary of State for the Home Department, ex parte Doody  1 A.C. 531 per Lord Mustill at p.560D. We turn therefore to the facts of the present case”.
GUIDANCE TO THE UPPER TRIBUNAL IN CONSIDERING PERMISSION APPLICATIONS
The Court in G & H set out the guidance that has been given on the role of the Upper Tribunal when considering whether to grant permission for an appeal from the FTT to the Upper Tribunal.
It was noted at paragraph 67 of G & H that TCEA 2007 identifies no statutory criteria for the grant of permission to appeal from the FTT to the Upper Tribunal. In G & H, the Court stated at paragraph 67 that in this regards it was also helpful to refer to what was said by the Supreme Court in Cart by reference to the following paragraphs:
“42.This approach accepts that a certain level of error is acceptable in a legal system which has so many demands upon its limited resources. Some might question whether it does provide sufficient protection against mistakes of law. In the ordinary courts, unlike the new tribunal system, there may be an appeal on a point of fact as well as law. It makes sense to limit such appeals to those with a real prospect of success. But judicial review is not such an appeal. The district judge and the circuit judge may both have gone wrong in law. They may work so closely and regularly together that the latter is unlikely to detect the possibility of error in the former. But at least in the county courts such errors are in due course likely to be detected elsewhere and put right for the future. The county courts are applying the ordinary law of the land which is applicable in courts throughout the country, often in the High Court as well as in the county courts. The risk of their developing “local law” is reduced although by no means eliminated”.
56.But no system of decision-making is perfect or infallible. There is always the possibility that a judge at any level will get it wrong. Clearly there should always be the possibility that another judge can look at the case and check for error. That second judge should always be someone with more experience or expertise than the judge who first heard the case (it is to be hoped that the new structure will not perpetuate the possibility, exemplified in Sinclair Gardens, that a non-lawyer member might be entrusted with deciding whether a tribunal chaired by a legally qualified tribunal judge had gone wrong in law, but this is left to the good sense of the Senior President rather than enshrined in the legislation). But it is not obvious that there should be a right to any particular number of further checks after that. The adoption of the second-tier appeal criteria would lead to a further check, outside the tribunal system, but not one which could be expected to succeed in the great majority of cases”.
The Court in G & H also referred to the Guidance Note on permission to appeal under paragraph 7 of Schedule 4 to the TCEA 2007, issued by President of UTIAC, Blake J. It was noted that the Guidance is not a source of law, nor is it intended to be “an authoritative statement of law” but “it is intended to promote consistent and high standards in making such decisions.
The Administrative court in G & H referred to paragraphs 12, 13 and 16 of the Guidance Note as it stood at the time of the FTT and Upper Tribunal decisions in the present case and noted the following caselaw:
It was noted that in paragraph 12 and much of paragraph 13 of the Guidance , Blake J addressed what may constitute an error of law, stressing that as a matter of generality what is relevant when considering whether to grant permission to appeal is whether there is an arguable error of law, not whether the error is made out. To the Court’s, mind it was clear from the guidance noted as a whole that Blake J was using the word “arguable” to denote a point which has a real, as opposed to fanciful, prospect of success.
The Court in G & H, stated that the guidance note appeared to be fully consistent with Lady Hale’s observations cited earlier, in Cart. On an application for permission to appeal the Upper Tribunal judge is to look at the case and check for error – not error of fact, but error “on a point of law”.
In G & H, the Court stated at paragraph 73, that they did not need to determine whether Ms Anderson( on behalf of the Secretary of State) was right to advance additional propositions that it is not obligatory for the judge to have regard to the Guidance Note, and that the Guidance Note is not a document to take legal tests from. The Court commented only that their initial reaction was that these propositions are expressed in broad terms which, at any rate at first sight, would call for qualification before they could be accepted.
The updated Upper Tribunal GUIDANCE NOTE 2011 No 1: Permission to appeal to UTIAC (amended September 2013 & July 2014), appears at https://www.judiciary.gov.uk/wp-content/uploads/2014/08/guidance-note-no1-permission-to-appeal-to-utiac.pdf
THE FACTS IN G & H
There were two claimants – a mother( G) and her daughter(H), both of Nigerian nationality.
G was encountered by immigration officers on 5 January 2013 when she was pregnant with H. When encountered she said that she was intending to leave the UK for another country where she intended to claim asylum. Her grounds for seeking asylum did not include trafficking for the purposes of sexual exploitation. She was arrested and charged with two counts of possession/control of false identity documents with intent. She entered guilty pleas and on 21 January 2013 she was sentenced to twelve months imprisonment (concurrent) on each count. While in prison she gave birth to H on 29 March 2013.
As regards the basis of her claim, G said that her history of sexual exploitation/assault began in Nigeria when she was gang raped as a teenager. Four years later, when no longer a teenager, she was trafficked from Nigeria to the trafficking destination country. G identified the names used by two of the men involved in trafficking her, one in Nigeria( trafficker 1) and the other in the trafficking destination country( trafficker 2). G added that in the trafficking destination country she was told that trafficker 2 had paid trafficker 1 €40,000 for her. She was also told that she had to work to repay this and was required to earn €200 per day. The result was that in the trafficking destination country she was imprisoned and forced to work as a prostitute for nearly a year. During this period she had to have three abortions and was physically and sexually abused by trafficker 2. She escaped with the assistance of a friendly client who was concerned when he saw evidence of her mistreatment, and who paid her costs of travel to the UK. That client provided her with the only identity document which she had. It was a forged identity card which purported to have been issued by the government of the country where she had been trafficked. After entering the UK using that card she lived and worked here, continuing to use the same forged identity card for that purpose. She remained extremely fearful of her traffickers, and believed herself to be under a “juju” curse which would result in harm to her and any unborn child if she were to approach the authorities or disclose any details of her trafficking ordeal.
G’s case was that if she were returned to Nigeria she would be at risk of reprisals, including being re-trafficked as a prostitute, from named individuals forming part of the trafficking gang, in particular trafficker 1 and trafficker 2. She suffered from medical problems for which she received care which would be lost if returned to Nigeria. She would not be adequately protected from reprisals from her traffickers if returned to Nigeria as she would be destitute, could not relocate to avoid them, and would still be at risk even if living elsewhere in Nigeria.
The case advanced on behalf of H was that she too would be at risk of reprisals from the named members of the trafficking gang, and also that she would be subjected to FGM.
The case as to risks to G and H from the traffickers was supported by evidence given by G that, among other things, soon after her escape the traffickers had targeted her mother, demanding repayment of the “debt” incurred by taking G from Nigeria to the trafficking destination country. G said that the traffickers had continued to target her mother, and that her mother had told the traffickers that she may be deported from the UK. The traffickers had then returned three months later to see whether G was back.
EFFECT OF CLAIMANT MOTHER’S CONVICTION
In light of her conviction G was a “foreign criminal” within the meaning of section 32 of the UK Borders Act 2007 . A deportation decision and deportation order were made simultaneously on 21 June 2013. Also on 21 June 2013 a decision was taken by the Secretary of State to remove H as a family member
On 10 February 2014, the FTT issued a decision, dismissing appeals by the claimants against deportation decisions by the Home Secretary. On 11 March 2014 the FTT refused an application for permission to appeal.
An application for permission to appeal was then made to the Upper Tribunal. On 15 April 2014 the Upper Tribunal made a decision refusing permission to appeal.
It was therefore the Upper Tribunal permission refusal that was under challenge by way of judiciary review in the Administrative Court.
EXPERT EVIDENCE RELIED UPON IN THE TRIBUNAL
Expert medical and psychiatric reports were relied upon by the claimants at the hearing before the FTT. At the hearing before the FTT, the claimants also relied upon a country expert report from Ms Bisi Olateru-Olagbegi, who stated that law enforcement agencies in Nigeria would not adequately protect against reprisal attacks from the trafficking network and societal abuse likely to be experienced in Nigeria. Her view was that G would not be able to access adequate medical care and was vulnerable to being re-trafficked, and that H would be at risk as a result of the circumstances of her mother, as a result of the likelihood of reprisal attacks from the trafficking network, and as a result of the likelihood of being subjected to FGM.
THE SECRETARY OF STATE’S CONCESSION
The Court observed that it was common ground that G had been the victim of female genital mutilation. G had claimed and the Secretary of State had accepted at the start of the hearing before the First Tier Tribunal, that G was the victim of trafficking for the purposes of sexual exploitation to a country which the Court referred to as call “the trafficking destination country”. The concession about past trafficking was a concession made prior to oral testimony at the hearing before the FTT. The FFT recorded in their decision that, “ At the start of the hearing, it was clarified that there was no issue [that G] had been trafficked to [the trafficking destination country] and it was confirmed that the international protection issues before us related to whether or not [G] was at risk of being re-trafficked and the risk of [H] being subjected to FGM”.
During the judicial review proceedings however, the claimants stated that the concession was more extensive than the description given by the Tribunal. They added that, consistently with this concession, when G gave evidence she was not cross examined on substantial parts of her witness statement.
- Procedural Unfairness as a ground of challenge:
Ground 1 of the judiciary review challenge was stated to raise an important point of principle or practice as follows;
“the application of principles of procedural fairness to asylum appeals where the FTT must in any event apply “anxious scrutiny,” where the appellant is particularly vulnerable (as here – due to trafficking/ sexual exploitation) and where the best interests of the child are of primary importance”.
The detail of the grounds of challenge are set out in paragraph 33 of the Court’s judgement. The following also includes those grounds
- The FTT dismissed the Claimants’ appeals largely on the basis of deemed inconsistencies in the first Claimant’s trafficking claim which had already been accepted by the Secretary of State and which were never put to the Claimant at the hearing. Furthermore, the FTT doubted the Claimant’s core claim due to issues such as late disclosure notwithstanding the clear recognition by the SSHD in her own trafficking guidance that victims of trafficking are often bound by voodoo/ juju curses not to disclose their ordeal and those who have suffered sexual exploitation are often debarred by shame and trauma from revealing core details of their claim.
- It was critical to note in this case that at the outset of the FTT hearing there was a discussion of preliminary issues and it was agreed between all the parties (and recorded in the FTT determination that the Secretary of State accepted the first Claimant’s account of trafficking to [the trafficking destination country] and that the only issues in the appeal were whether there was a risk of re-trafficking and a risk to the second Claimant from FGM.
- Consistent with this pre-hearing agreement amongst the parties and the concessions made by the Secretary of State, the Home Office Presenting Officer who represented the Secretary of State at the FTT asked no questions whatsoever (nor made any submissions whatsoever) regarding the first Claimant’s trafficking claim including no questions about her circumstances in Nigeria before she was trafficked, the rape she had suffered in Nigeria, the job she had held in Nigeria, the way in which she met her traffickers, her transit to [the trafficking destination country], her forced prostitution and sexual abuse/ exploitation in [the trafficking destination country] or her escape from her traffickers and entry to the UK. Cross-examination focussed solely on the ongoing threats from the Claimant’s traffickers to her/ her mother, her family’s situation in Nigeria, and her work in the care industry in the UK. Additionally, the Presenting Officer made no reference to, nor submissions regarding either of the expert reports in this case. The FTT also asked no questions of the Claimant about any of these issues with one exception .
- The first Claimant’s late disclosure and fears were also supported by country expert Ms Olateru-Olagbegi who described in detail the use of “juju” oaths to control victims of trafficking; the fact that victims are fearful of the repercussions of breaking this oath and thus do not report their traffickers; and that as a result there is a “culture of silence” and a failure by victims to cooperate with authorities.
- It was submitted by the Claimants’ counsel at the FTT hearing in closing submissions that late disclosure is well documented amongst trafficking victims and accepted by the SSHD in her guidance entitled “Victims of Human Trafficking: guidance for frontline staff.”
- Country Guidance issues as a matter of challenge:
Judicial review ground 2 was stated to concern an important point of principle or practice and stated:
“The correct application of the preserved findings of the Court of Appeal in PO (Nigeria)  EWCA Civ 132 to all other asylum cases involving Nigerian trafficking victims. There have been no reported cases on this point since the Court of Appeal allowed the appeal in PO (Nigeria) setting aside the decision of the UT (then AIT) and remitting it to the UT for further reconsideration but preserving some key findings for application in the interim. This point of principle thus has broader significance to a large number of Nigerian trafficking/ asylum claims heard by the FTT and UT”.
The detail of the ground of challenge is set out in paragraph 35 of the Court’s judgement. The following also includes those grounds:
- In 2009 the Upper Tribunal promulgated Country Guidance on the risks facing victims of trafficking who are returned to Nigeria. That case was appealed to the Court of Appeal who in PO (Nigeria)  EWCA Civ 132 allowed the appeal but set out preserved findings( paragraphs 191 and 192 of PO) which would continue to apply in Nigerian trafficking cases until the Upper Tribunal promulgated new country guidance (which has not happened to date).
- The failure of the FTT to apply the preserved country guidance findings was an important point of principle, especially where the Upper Tribunal has yet to promulgate new Nigerian trafficking country guidance notwithstanding the passage of over three years since the Court of Appeal allowed the appeal.
As regards both judicial review ground 1 and judicial review ground 2, the claimants’ grounds also relied on the second limb of the second appeals test and stated:
“. … the clear errors of law in the FTT determination and the UT’s refusal of permission, the high prospects of success on appeal and the extreme consequences for the Claimants should they be returned to Nigeria where they aver they would face a real risk of harm, amount to compelling reasons to grant permission to this claim. In addition, the clear procedural unfairness perpetuated by the FTT, even if the prospects are not deemed very high, would still amount to compelling circumstances … [a citation was then given which was intended to refer to paragraph 24(3) of Carnwath LJ’s judgment in PR (Sri Lanka) set out above]”.
Expert evidence as a ground of challenge:
An additional ground was advanced under the second limb of the second appeals test. It concerned a different risk which was not expressly identified in the Upper Tribunal’s reasons. This was the risk that H might be forcibly subjected to FGM. Ground 3 of the challenge made two complaints about the FTT’s rejection of expert evidence of Ms Bisi Olateru-Olagbegi. It also made a third complaint that, in relation to the risk to H of forcible subjection to FGM, the FTT had ignored the conclusions of Dr Huws, Surrey County Council, and Ms Olateru-Olagbegi.
Ground 3 as developed in detail appears in paragraphs 38 of the Court’s judgment.
THE SECRETARY OF STATE’S POSITION
A contention, “the High Court role contention” on behalf of the Secretary of State as an interested party was that, in order to succeed in a claim concerning an Upper Tribunal FTT permission refusal, it will not be enough to show that the Upper Tribunal had made a material error of law. It was “necessary to demonstrate”, that both the FTT and the Upper Tribunal had made such an error.
The advanced argument, ie, the “High Court role” contention, under which the judicial review could only succeed, was if the claimants satisfied a requirement to show that both the Upper Tribunal and the FTT made a material error of law.
The arguments were noted to invoke fundamental principles of judicial review. It was asserted in various ways that the claimants’ approach would usurp the functions of the Upper Tribunal, and that the requirement imposed by the “High Court role” contention is needed so as to avoid such usurpation, and so as to maintain the distinction between judicial review and appeal. The courts should be slow to intervene in the decisions of specialist tribunals.
The Court noted the important warnings given in the context of ordinary judicial review in that the Secretary of State as an Interested Party repeated the time-honoured warnings (given in the context of the former system that permitted the unlimited judicial review) that it is important not to forget the essential principles of judicial review that apply in this area as to any other” (per Buxton LJ in R v SSHD ex parte Arshad, decision dated 14 July 2000) and “The present field is one which it is tempting for the court to stray into taking its own view of the facts. That is a temptation which the court must resist. A court’s function is limited to a review of the challenged decision on one or more of the familiar grounds” (R v IAT ex parte Sahota  Imm AR 500 p 506)”.
The Secretary of State also put forward among other arguments:
“Whilst not precluding judicial review altogether, the Supreme Court in Cart emphasised that it would only be in very narrow circumstances that intervention in a decision by way of judicial review would be permissible. The Interested Party submits that the intended very limited approach by the Supreme Court must be adhered to and this case fails to provide the requisite basis to intervene. …”
In setting out the Cart rationale submission, it was said, citing a series of paragraphs in the judgments in the Supreme Court, that:
“It was not the [Home Secretary’s] submission that the second appeal test criteria had to be demonstrated … , [but] that does not mean that the decision of the Supreme Court in Cart should be discarded as irrelevant. Rather the learning of the Supreme Court judges as to the limited circumstances in which it would be justified to intervene applies and that does not include a difference of opinion as to whether the grounds of appeal to the Upper Tribunal were arguable on the merits”.
CONSIDERATIONS BY THE COURT
- Second appeals test threshold restriction is designed for the filtering stage:
The Court stated that the Secretary of State had referred to observations in Cart about “very narrow circumstances” and an “intended very limited approach”. However, the restriction identified as appropriate in Cart was the second appeals test, a test designed for the filtering stage. In the present case the claim had survived the filtering stage: permission to proceed had been granted by Stewart J. There was no reason to doubt that Stewart J considered that the claimants had met the second appeals test.
- Second appeals test threshold restriction not live for the purposes of the substantive judicial review
It was noted by the Administrative Court that R (AA (Iran)) v Upper Tribunal  EWCA Civ 1523 at paragraph 5, states:
“It is important to keep two things in mind. The first is that the decision which is being challenged in the present proceedings is the refusal by the UT on 7 July 2011 to grant permission to appeal against the decision of the FTT dated 22 February 2011. The question is whether that was an unlawful refusal of permission. The second point is that from the moment Judge Gore granted permission to apply for judicial review on 16 March 2012, this has been a substantive judicial review case, freed from the shackles of the second-appeals test which Cart requires to be satisfied when consideration is being given to an application for permission to apply for judicial review in these unusual circumstances. …”
In G & H, the Court stated at paragraph 98 that the Cart rationale submission had at least two surprising features. First, it was accepted by the Home Secretary in R (AA (Iran)) that once permission to proceed had been given the claim was freed from the shackles of the second appeals test required by Cart. If the Home Secretary wanted to submit that Cart imposed shackles other than the second appeals test, then the Home Secretary could have been expected to have made submissions to that effect in R (AA (Iran)). Second, Ms Anderson( on behalf of the Secretary of State) did not suggest that the Supreme Court in Cart identified any particular substantive content for the further restriction that she submitted was called for by “the rationale” of the Cart decision. It seemed to the Administrative Court that if the Supreme Court had thought that the rationale for their decision required some further restriction once permission had been granted then the Supreme Court would have provided at least some hint of what that further restriction was or might be.
- High Court role contention– No usurpation of the Upper Tribunal’s Role:
The Secretary of State’s complaint was that the claimants’ approach would breach fundamental principles by inviting the court to usurp the role of the Upper Tribunal.
It was noted at paragraph 76 in G & H, that the nub of the Home Secretary’s concern in this regards was that:
- the claimants submit that the court on judicial review should quash the Upper Tribunal permission refusal decision if that decision failed to recognise that the grounds of appeal had sufficient merit to be arguable; but
- the Upper Tribunal, in order to perform its function of considering whether to grant permission under section 11(4)(b) of TCEA had to make a decision on whether the grounds of appeal met a test of arguability, this being a decision for the Upper Tribunal to judge on the merits bringing to bear its specialist expertise as the body that would hear the appeal; with the result that
- the claimants’ approach would commit the fundamental error of inviting the court to make the judgment as if it were the Upper Tribunal, substituting its own view of the merits for that of the specialist decision-maker entrusted by Parliament with the task of deciding whether or not to grant permission
It was noted that on the Home Secretary’s argument, so as not to commit the fundamental error of usurpation, and because the present claim was by way of judicial review, the approach to be adopted is the approach urged in the “High Court role” contention: an approach under which a successful judicial review must demonstrate a material error of law in both the decision of the FTT and the decision of the Upper Tribunal.
At paragraph 78, the Administrative Court G& H, stated that it is trite law that the High Court on judicial review must not usurp the functions of the decision-maker. In the present context the crucial role of the High Court, as stressed by the Supreme Court in Cart, was to ensure that decisions are taken in accordance with the law, and not otherwise:(see Lady Hale at paragraph 37).
It was further noted in G& H, that more than 30 years ago, as set out in the speech of Lord Diplock in the CCSU case, the House of Lords identified three heads under which the High Court performs this task. First, under a head which Lord Diplock referred to as “illegality”, it ensures that the decision-maker whose decision is under review (here, the Upper Tribunal) has correctly understood the law governing the decision-maker’s functions and given effect to that law. Second, under a head which Lord Diplock referred to as “irrationality”, it ensures that the decision is within the bounds of reasonableness in the well understood public law sense. Third, under a head which Lord Diplock referred to as “procedural impropriety”, it ensures that the decision-maker has respected the principles of procedural fairness.
It was stated by the Administrative Court that only rarely will the High Court on judicial review of an Upper Tribunal FTT permission refusal be asked to hold that the Upper Tribunal decision was unreasonable in the public law sense or involved procedural impropriety. It was stated by the Court that applications for judicial review of an Upper Tribunal FTT permission refusal will usually, as here, involve a challenge which says that the Upper Tribunal has either misunderstood the relevant law or failed to give effect to it.
It was stated that what the court is examining is the Upper Tribunal’s decision – and in particular the reasons given by the Upper Tribunal for that decision. The court’s task remains that of examining the Upper Tribunal decision to ensure there has been no misunderstanding or misapplication of the law in that decision. There is no usurpation by the court of the functions of the Upper Tribunal.
It was noted that the Secretary of State’s approach being because the case in the court “remains a judicial review”, what is necessary is “to demonstrate a material error of law in both the decision of the FTT and the decision of the Upper Tribunal”, the Court in G & H, stated that this proposed solution immediately prompted the question, would not that solution also lead to the court usurping the role of the decision maker? The Court stated that under TCEA 2007 it is for the Upper Tribunal, not the court, to decide at the full hearing of the appeal whether or not there has been a material error of law by the FTT. It was considered that the usurpation would be all the more serious, as the court would, on this hypothesis, be required on the judicial review to take over the role of the Upper Tribunal at a full appeal.
The requirement urged by the Home Secretary were considered not needed in order to ensure that the court on judicial review avoids the fundamental error of usurping the functions of the Upper Tribunal.
- High Court Role Requirement: Home Office Pointless Submission Argument
As noted in G & H, at paragraph 103 of the judgement, in support of the “High Court role” requirement, the Home Secretary relied upon a submission that unless there were such a requirement as contended, the substantive judicial review would be pointless. The reason was that the case would not reach substantive judicial review unless it had been permitted to proceed under CPR 54.7A. The judge granting permission would necessarily have concluded that there was an arguable case that the First-tier Tribunal had erred in law, and accordingly the decision to grant permission to proceed would be determinative of the outcome.
The Court stated that the submission appeared to ignore the context in which the permission decision is made:
- Judges of the Administrative Court regularly see applications for permission to apply for judicial review of Upper Tribunal FTT permission refusal decisions. In the vast majority of such applications the claimant urges that the Upper Tribunal failed to recognise that there was an arguable case that the First-tier Tribunal had erred in law. Only rarely will the judge conclude that the hurdles set out in CPR 54.7A have been surmounted. In those rare cases where the judge concludes that they are surmounted, the judge’s order granting permission to proceed may well include an express assessment by the judge in the form of an observation that there was an arguable error of law on the part of the First-tier Tribunal.
- That order, however, is only a grant of permission to proceed. Assessments made by a judge when granting permission to proceed are not, and are not intended to be, determinative. They are made for the purposes of the filtering stage, a stage when the court has not heard full argument
- The decision granting permission to proceed may lead to summary disposal in favour of the claimant under CPR 54.7A(9), but will not do so if a timely request for a hearing is made either by the Upper Tribunal or by an interested party. In the event of such a request the permission decision is not determinative.
- The purpose of granting permission to proceed will generally be to enable full argument. This remains the case under CPR 54.7A. The claim to judicial review may fail because, after hearing full argument, the court at the substantive hearing concludes that there was no arguable error of law.
The Court considered that the Home Secretary’s pointlessness submission failed as it misunderstood the filtering stage of judicial review procedure.
- No need to show material error of law to vitiate an Upper Tribunal FTT permission refusal
At paragraph 122 of the Court’s judgement it was concluded that the High Court may reach a conclusion that an Upper Tribunal FTT permission refusal is vitiated because the Upper Tribunal misunderstood or misapplied the law when holding that the would-be appellant had identified no arguable ground of appeal. Where the High Court reaches that conclusion, it may be because, after making full allowance for the expertise of the FTT and the Upper Tribunal, it considers a ground of appeal to have been plainly right. It may more usually reach that conclusion in circumstances where, after making the same allowance, it considers the ground of appeal to have a real prospect of success.
The Court was not persuaded by the Home Secretary’s contentions that an Upper Tribunal FTT permission refusal will only be vitiated if the High Court determines that the FTT did indeed make a material error of law.
- Vitiation of Upper Tribunal FTT permission refusal where there is misunderstanding or misapplication of the relevant law
At paragraph 122 of the judgement, the Court also said that the Upper Tribunal FTT permission refusal may be vitiated if the Upper Tribunal misunderstands or misapplies the relevant law in refusing permission for an argument which has a real prospect of success. The Court did not exclude the possibility that there is some good reason for not quashing the refusal decision in the particular circumstances of the case, but there is no general restriction of the kind urged by the Home Secretary’s “High Court role” contention.
- The Upper Tribunal had misunderstood and misapplied the relevant law
The Court concluded at paragraphs 123 and 124 of their judgement that in relation to each of the three grounds for judicial review the Upper Tribunal permission refusal involved a material misunderstanding or misapplication of the law. It was acknowledged that submissions on the grounds for judicial review had, as a direct result of the Home Secretary’s “High Court role” contention, necessarily involved examination of the detailed reasoning of the FTT. In these unusual circumstances, having heard and considered those submissions, the Court concluded that the claimants’ arguments demonstrated that the claimants’ grounds of appeal, as put before the Upper Tribunal when seeking permission to appeal, were plainly right.
The Court was persuaded that the Upper Tribunal had misunderstood or misapplied the relevant law. This was stressed not because the Court accept the “High Court role” contention. It was because the submissions heard enabled the Court to conclude that on the current state of the law, and after making full allowance for the expertise of the FTT and the Upper Tribunal, relevant parts of the grounds of appeal were not merely arguable, but were bound to succeed in law.
CONCLUSIONS OF THE COURT IN G & H –PROCEDURAL UNFAIRNESS POINT
- Procedural Fairness Point
Ground 1 of the grounds for judicial review was noted to be concerned with something fundamental to the doing of justice: procedural fairness.
It was noted at paragraph 144 of the Court’s judgement that what could be seen from the extracts of the claimant’s grounds was that the claimants identified unfairness in two of the bases on which the FTT disbelieved G’s core account of being trafficked. The two bases were:
- that G had been inconsistent in accounts that she gave of her being trafficked (“disbelief basis A”); and
- that G had made late disclosure of what she said had happened to her (“disbelief basis B”).
As noted at paragraph 145 of the Court’s judgement the alleged unfairness could be analysed as involving express or implicit assertions as follows:
- At the outset of the FTT hearing the Home Secretary “accepted [G’s] account of trafficking to [the trafficking destination country]”;
- As to the six inconsistencies relied on by the FTT :
- All concerned the part of her account that was accepted by the Home Secretary’s concession;
- None of them was put to G by the Home Office presenting officer;
- Five of them were not the subject of any questions to G by the FTT;
- The remaining inconsistency arose in the screening interview when G was asked why she couldn’t return to Nigeria: G told the screening interviewer that she had been raped and had worked as a prostitute, but did not tell the interviewer about her trafficking and forced prostitution;
- The “reasons for not returning inconsistency” in substance concerned late disclosure of G’s account of being trafficked and of being forced into prostitution, and there was thus an overlap between disbelief basis A and disbelief basis B;
- There was a question by the lay member of the FTT about the “reasons for not returning inconsistency”: G’s evidence in answer was that she had been pregnant at the time of the screening interview, and because of an oath she had been made to swear in the trafficking destination country she was afraid and did not want anything to happen to her child;
- That answer to the lay member was consistent with what G said when interviewed after H’s birth: namely that in the trafficking destination country one of the trafficking gang made her swear an oath not to tell anyone, and that if she did, then when she was pregnant she would die and her baby would die too;
- The answer to the lay member was also consistent with evidence from the male witness who described G’s apparent anxiety before H’s birth and how she had revealed more of her account after H’s birth.
- The FTT’s reasons made no mention of the specific content of G’s answer to the lay member.
- The claimants’ appeals were “largely” dismissed by the FTT on the basis on the six “deemed inconsistencies”.
The Court stated at paragraph 146 that this was a formidable ground of appeal. It was noted that if the points identified above within the analysis of the Court gave a correct account of what happened in the FTT, then that account rang obvious alarm bells about procedural fairness.
- Effect of the Secretary of State’s Concession: And the Tribunal Going Behind the Concession Without Notice
The Court noted that the Secretary of State’s detailed grounds of defence did not dispute that the claimants’ grounds accurately described the concession made by the Home Office presenting officer prior to the start of oral testimony. It was nevertheless suggested by the Secretary of State in oral submissions that the court was bound by the description given by the FTT in their decision in relation to the noted concession. The Court did not agree.
It was stated that the Secretary of State had known from the outset of these judicial review proceedings that Ms Mair’s( representing the Claimants) recollection of the concession was that the Home Secretary accepted G’s account of trafficking to the trafficking destination country, and that it was not a mere concession that G had been trafficked to that country. Consistently with this, Ms Mair’s contemporaneous note of the concession was that the Home Secretary accepted that there had been trafficking in this case “as claimed”. No evidence was produced by the Secretary of State that the concession involved anything other than an acceptance of the accuracy of what was said in G’s witness statement about being trafficked. There was nothing in the FTT Decision and Reasons to indicate any consciousness on the part of the FTT that its reasoning might be open to criticism for going behind the concession without adequate warning, and thus no reason to think that the FTT in their decision was seeking to give a precise account of the extent of the concession. In these circumstances the Court had no hesitation in accepting the claimants’ account as to the extent of the concession that was made.
As to whether there was procedural unfairness, the fundamental stance taken by the Secretary of State in G & H was that the claimants’ submissions on Secretary of State For the Home Department v Maheshwaran  EWCA Civ 173 were wrong. The Court considered that this stance was bold. The Secretary of State went on to say that the actual decision in that case could not be distinguished on the basis of its facts. The Administrative Court considered that this did not follow at all. In Maheshwaran there had been no concession. In the present case the claimants said that there had, and that a single question by the tribunal once G’s evidence was under way was not adequate notice that the tribunal proposed to go behind it
The Court concluded that the FTT’s rejection of G’s core account of trafficking, and the reasons put forward by the FTT in that regard, involved elementary and serious breaches of the principles of procedural fairness.
At paragraph 169 of the Court’s judgement, it was noted the Upper Tribunal said that no claim to fear return was raised until six years after G’s arrival in the UK and after her arrest for using a forged ID card. As to that, the lateness of the claim to fear return was expressly relied upon by the FTT. The Administrative Court found it difficult to see how this could be given substantial weight if, as had been conceded by the Home Secretary, the account of trafficking given in G’s witness statement was true. It was right that G did not assert fear of return to Nigeria until arrested. The Home Secretary plainly did not consider that if G were trafficked she would have revealed this earlier than H’s birth. The Administrative Court added that the obvious reason why the Home Secretary and the Competent Authority accepted G’s account of trafficking, despite it being given so late, was that G had not disclosed that account earlier because she feared what would happen as a result of disclosure.
The Secretary of State’s materiality grounds were noted that the claimants’ claim was bound to fail regardless of the rejection of the earlier trafficking since there had been a failure to prove “a current well founded fear of persecution or Article 3 ill treatment”, and that accordingly the Upper Tribunal had been correct to refuse permission to appeal.
At paragraph 183 of their judgement, the Court stated that it was important that they make full allowance for the special expertise of the First-tier Tribunal and the Upper Tribunal in relation to immigration and asylum. Here it was relevant that judicial review ground one was essentially concerned with questions of procedural fairness and the impact of a breach of procedural fairness. The Court stated that questions of procedural fairness are pre-eminently a matter within the expertise of the Administrative Court . The Court therefore concluded that , after taking full account of the expertise of the Upper Tribunal and the FTT, it was in accordance with the overriding objective for the Court to base their decision upon their conclusion that ground one of appeal was right.
CONCLUSIONS OF THE COURT IN G & H –COUNTRY GUIDANCE POINT
It was noted at paragraph 191 of the Court’s judgement the point that had been strongly made on behalf of the claimants at the hearing before the FTT was that trafficker 1 and trafficker 2 were members of a gang which complained of G’s failure to earn what they required, with the consequence that the gang was “very likely to go to extreme lengths… to seek reprisals”. The FTT’s reasons did not engage with this. They identified certain aspects of the reported threats as being implausible, but did not explain why. It was noted that the Claimants relied upon proposition that if the FTT wished to depart from the preserved Country Guidance findings then the panel should have had and should have given good reasons for so doing, and that having failed to do so constituted an error of law. Reliance was also placed upon R (Iran) v SSHD  EWCA Civ 982 at para 27 where Lord Justice Brooke summarised the jurisprudence on this issue and found:
“It will have been noticed that Ouseley J said that any failure to apply a CG decision unless there was good reason, explicitly stated, for not doing so would constitute an error of law in that a material consideration had been ignored or legally inadequate reasons for the decision had been given. This suggestion has now been repeated and adopted in para 18.4 of the AIT Practice Direction. We have no hesitation in endorsing that approach. It would represent a failure to take a material matter into account…”
The Court in G & H, also stated at paragraph 196 of their judgement that it will be apparent that they reached the conclusion that judicial review ground two succeeds without the need to refer to any special learning concerning country guidance cases. The Court instead relied on well established principles concerning the need of a tribunal to give adequate reasons for its decision. In these circumstances the Court concluded that there is no reason to think that their reasoning would be affected by the specialist expertise of the FTT and the Upper Tribunal.
CONCLUSIONS OF THE COURT IN G & H –EXPERT EVIDENCE
At paragraph 198 of their recession, the Court stated that judicial review ground three made two complaints. The first was that relevant reports were discounted on the basis that G had given the author an inaccurate account of being trafficked. The Court considered that the complaint was well founded and of itself had the consequence that the Upper Tribunal’s refusal of permission to appeal could not stand.
The other complaint concerned the way in which the FTT dealt with Ms Olateru-Olagbegi’s expert evidence and rejected it. The claimants’ grounds cited what was said by Maurice Kay LJ in PO (Nigeria)  EWCA Civ 132 in a passage which was simply ignored by the FTT in the present case. In that passage Maurice Kay LJ explained that, even though on certain aspects Ms Olateru-Olagbegi’s evidence was open to criticism, it did not follow that she was unreliable on other aspects. The Court in G & H stated that it was plain from this citation that Ms Olateru-Olagbegi has not been discredited as an expert witness.
It was noted by the Administrative Court that the Upper Tribunal permission refusal dealt with the claimants’ point concerning expert evidence concluded that the expert evidence was properly considered and rejected on the basis that, even if the appellant was trafficked to [the trafficking destination country], she had not been subjected to further threats. The Court considered that the Upper Tribunal’s reasons simply did not deal with the complaint about the way in which the tribunal had treated Ms Olateru-Olagbegi as discredited. The only complaint that was dealt with by the Upper Tribunal concerned discounting of expert reports by the FTT on the basis that the author had been misled by an invented account of trafficking. The Home Secretary’s detailed grounds of defence similarly failed to deal with this particular complaint. The same was true of the Home Secretary’s skeleton argument. It had been said in oral submissions on behalf of the Home Secretary that the expert evidence could only have limited weight, and that the points advanced by Ms Olateru-Olagbegi had been considered and rejected by the FTT. To the Court, this simply could not be an adequate answer. The FTT, when considering and rejecting points made in the report, was approaching the matter on the footing that the author of the report had been treated in PO (Nigeria)  EWCA Civ 132 as discredited. As was pointed out by the claimants, this was a misreading of what had been said by the Court of Appeal in PO.
The Administrative Court concluded that, applying well established principles of public law, judicial review ground three succeeded. It was stated that nothing in the Court’s reasoning involved any question on which specialist expertise of the FTT or the Upper Tribunal might have an impact.
The Secretary of State clearly sought to limit the Administrative Court’s role in the context in which the claim arose however those general restrictions urged via the “High Court role” contention were rejected by the Court. The Court was however at the same time, throughout its judgment, keen to emphasize that nothing in their reasoning involved any question on which specialist expertise of the FTT or the Upper Tribunal might have an impact.
The Judgement in G & H, acknowledges at paragraph 104 what legal practitioners have always known – that in applications for permission to apply for judicial review of Upper Tribunal FTT permission refusal decisions, only rarely will the judge conclude that the hurdles set out in CPR 54.7A have been surmounted. The success in G & H , very welcome though it is, is therefore not to be taken as indicating a significant shift generally within the Administrative Court from the prior position.
The judgement ( although very lengthy) provides welcome considerations and a review of the applicable legal principles. The judgement may also serve as a “warning” to the Upper Tribunal judges in effect not to give the appearance of “ rubber –stamping “ the FTT’s refusal of permission.
Perhaps the outcome in G & H may also result in slightly more detailed clarifications and legal reasoning being provided for within the decision on permission from both tiers of the Tribunal as to why permission is being refused – rather than the usual, sometimes seeming standard single page decisions on refusal of permission.