Appeals and judicial review in the tribunal system

The tribunal system as established under the Tribunals, Courts and Enforcement Act 2007 embodies a number of meritorious features. The system is unified, simple, and straightforward, and recognises expertise. It is divided into First-Tier Tribunals (FTTs) and Upper Tribunals (UTs), each with their specialist chambers, presided over by a legal chairman, in a number of cases a High Court judge, members are laymen of standing, and the procedure is relatively informal.

The UT is a court of record. An appeal lies on a point of law, FTT to UT, UT to Court of Appeal, but permission or leave is required. There is no appeal against a refusal of permission or leave. The only possible remedy is by way of judicial review to the High Court and this is where difficulties have arisen.

A potentially useful power is the power of review. A tribunal is unlikely just to change its mind, but new evidence or a new point may be brought to its attention such that the tribunal can correct accidental errors, amend reasons given for the decision, or even set the decision aside. However, the power appears to be little used.

The legal system discourages appeal. Appeals clog the system, causing delays, and the court and tribunal system is short of resources and overstretched. There must be finality in litigation. Appeals are risky for appellants, as the majority are unsuccessful '“ though some are triumphantly successful, and some lead to out-of-court settlements.

The criteria or grounds for acceding to judicial review are set out in R (Cart) v Upper Tribunal [2011] UKSC 28:

'¢ There must be an error of law of real significance;

'¢ The point must be a point of principle or practice;

'¢ There should be a compelling reason;

'¢ The matter should be one of general interest, more than a very specific personal matter affecting only the individual;

'¢ The rule of law should be involved;

'¢ The alleged error of law could have drastic consequences if not rectified;

'¢ The matter is proportionate (there need not be exceptional circumstances);

'¢ There is a genuinely arguable point of law and genuine merit in the application;

'¢ The procedure subject to complaint was unfair, and indeed perhaps systemically unfair;

'¢ The application is not a disguised appeal seeking a re-run on the substantive merits; and

'¢ Proper regard is paid to the limited resources of the court and tribunal system.

The documentation for the application should be a succinct written statement, enabling a decision to be made on the papers, or otherwise readily determined in an oral hearing.

Cart showed that it is possible to go from a humble FTT, a child support case, right up to the elevated Supreme Court, though this is not a practice upon which lightly to embark, or which will normally be allowed.

In R (G and H) v Upper Tribunal [2016] EWHC 239 (Admin), an immigration and deportation case, the applicant lost in the FTT, sought permission or leave to appeal to the UT, was refused, and so sought judicial review of the refusal in the High Court. In granting the application, the judge gave three reasons:

1. The country guidance, relating to the degree of safety and protection in overseas countries, had not been properly considered and no reasons had been given;

2. The expert evidence had not been properly considered and no reasons had been given; and

3. The UT had misunderstood and misapplied the relevant law, there had been a material error of law, and elementary and serious breaches of the principles of fair procedure. Not only was there a fair prospect of success, but the applicant was bound to succeed in his application for permission or leave to appeal to the UT.

Though the case was a complicated and sensitive deportation matter, the judge was very thorough '“ indeed, one might say overly thorough '“ taking 214 paragraphs and 61 printed pages, so it is not the easiest precedent or example, unless the lawyers are very expert and experienced and blessed with ample time.

In R (BB Algeria) v SIAC [2011] EWHC 336 (Admin) [2012] QB 146 the tribunal decision was taken on some closed material, an unfair procedure, so judicial review did lie.

In PR (Sri Lanka) v Home Secretary [2011] EWCA Civ 988 [2012] 1 WLR 73, the applicant failed in FTT and in UT and then tried to apply for judicial review when refused permission or leave to go to the Court of Appeal. There was no point of principle or practice or other compelling reason for the matter to go further (see Carnwath LJ paras 13 and 33-43).

The applicant was found guilty by the election court of an illegal election practice and his election to parliament declared void by the Election Court. He was entitled to apply for judicial review because the issue related to freedom of speech article 10 in respect of political opponents and the conduct of elections generally R (Woolas) v Parliamentary Election Court [2010] EWHC 3169 (Admin) [2012] QB 1.

Structure

The tribunal structure is headed by the Senior President of Tribunals, Sir Ernest Ryder LJ. There are a dozen FTT chambers and four UT chambers, serviced by Her Majesty's Courts and Tribunals Service HMCTS. The Tribunal Procedure Committee sets the rules of procedure, the principles being that the tribunals should be accessible and fair, the cases are quick and efficient, and the rules are simple and clear. The Committee publishes an annual report.

Each tribunal has its own rules, which are frequently amended, because of the specialist jurisdictional nature of each tribunal. See the 2007 Act s 22 and Schedule 5 and ss 30-37 and Schedule 6 for the authorising statutory provisions. For judicial review see CPR 54.

Alec Samuels is a barrister and former reader at Southampton University