In the consultation, the MoJ propose to improve the efficiency of the unified tribunal system by limiting the extent to which an unsuccessful litigant can require the Court of Appeal to further examine judicial decisions made in the Upper Tribunal. The two proposals are to:
- Amend the second appeals test in appeals from the Upper Tribunal so that the losing party may only apply directly to the Court of Appeal for permission to appeal “for reasons of exceptional public interest”.
- Remove the right to apply for permission to appeal to the Court of Appeal where a judge of the Upper Tribunal has certified an application for judicial review to be totally without merit. Instead it is proposed that there should be a right of review before another Upper Tribunal judge.
In summary, our team’s response does not accept that there is a need to impose further hurdles within the second appeals test and that any such narrowing of the test would heighten the risks to refugees and those whose human rights need protecting – the bulk of the cases which come before the Upper Tribunal in the Immigration and Asylum Chamber, following the significant removal of appeal rights pursuant to the Immigration Act 2014. Similarly, the team considers that the ‘totally without merit’ procedure is already very stringent and does not need to be restricted further. Our team is further concerned that the evidential basis for the consultation is limited, restricted to one year’s data and does not appear to acknowledge as ‘successful’ the high volume of cases before the Court of Appeal which settle by consent either prior or post-grant of permission.
In this context, we view this latest proposal as yet another attempt to chip away at the ability of immigrants and asylum seekers to challenge decisions made by the Secretary of State, which are of fundamental importance to their lives and which is a right that has already been significantly eroded.