Rare exercise of powers by the Court of Appeal to set aside its own final decision

Singh v Secretary of State for the Home Department [2019] EWCA Civ 1504 is an interesting case because it is a rare instance of the exercise of the power to reopen an appeal which had been finally determined.

It is also a case in which the Court of Appeal seems to have given particular attention to Article 8 ECHR infringement as being a relevant factor to the “compelling reasons” test (under the second appeals test).

The way in which the Court went about applying the above will be of interest to those seeking to bring their case before the second highest Court in the land. Therefore, I will firstly deal with the power of the Court of Appeal to reopen an appeal despite final determination, and secondly with the second appeals test.

(1) Reopen an appeal despite final determination:

As readers may well be aware the Court of Appeal decides permission by way of a paper-based exercise. This was brought about by a change to the Civil Procedural Rules (CPR)on 3 October 2016. The rule committee amended the CPR abolishing the right to an oral permission hearing in the Court of Appeal. The effect of the rule change is that permission to appeal to the Court of Appeal is now a purely paper based exercise, save where the judge looking at the papers is of the opinion that a hearing is required in order to decide whether to grant permission. However, if you are refused permission to appeal on the papers, that marks the end of your domestic legal challenge as an appellant. This position is relatively straightforward and without controversy.

But what happens to an appeal where, as a result of a clerical error, the Court of Appeal refuses permission without sight of important submissions made by an appellant? This is exactly what happened in Singh.

The relevant rule is found at CPR 52.30(1) which provides that despite a final determination the Court of Appeal may reopen an appeal where:

• It is necessary to do so to avoid real injustice.
• The circumstances are exceptional and make it appropriate to reopen the appeal; and
• There is no alternative effective remedy.

CPR 52.30(2) makes it clear that, for these purposes, “appeal” includes an “application for permission to appeal.”

In this case the Court of Appeal decided to exercise its “exceptional jurisdiction”, but in doing so, Lord Justice Hickinbottom provided helpful guidance as to the circumstances in which the power could be engaged, and when it would not:

3. This is an exceptional jurisdiction, to be exercised rarely: “The injustice that would be perpetrated if the appeal is not reopened must be so grave as to overbear the pressing claim of finality in litigation” (Lawal v Circle 33 Housing Trust[2014] EWCA Civ 1514; [2015] HLR 9 at [65] per Sir Terence Etherton VC, as he then was). The jurisdiction will therefore not be exercised simply because the determination was wrong, but only where it can be demonstrated that the integrity of the earlier proceedings has been “critically undermined” (R (Goring-on-Thames Parish Council) v South Oxfordshire District Council[2018] EWCA Civ 860; [2018] 1 WLR 5161 at [10]-[11]); and then only where there is “a powerful probability that the decision in question would have been different if the integrity of the earlier proceedings had not been critically undermined” (ibid at [15]).

Guidance as to what the “integrity” of proceedings is can be found in Re U (A Child) [2005] EWCA Civ 52 – the term appears to have been equated to “corruption of justice”:

18. … But the Taylor v Lawrence jurisdiction can in our judgment only be properly invoked where it is demonstrated that the integrity of the earlier litigation process, whether at trial or at the first appeal, has been critically undermined. We think this language appropriate because the jurisdiction is by no means solely concerned with the case where the earlier process has or may have produced a wrong result (which must be the whole scope of a fresh evidence case), but rather, at least primarily, with special circumstances where the process itself has been corrupted.The instances variously discussed in Taylor v Lawrence or in other learning there cited are instructive. Fraud (where relied on to reopen a concluded appeal rather than found a fresh cause of action – Wood v Gahlings); bias; the eccentric case where the judge had read the wrong papers; the vice in all these cases is not, or not necessarily, that the decision was factually incorrect but that it was arrived at by a corrupted process. Such instances are so far from the norm that they will inevitably be exceptional. And it is the corruption of justice that as a matter of policy is most likely to validate an exceptional recourse; a recourse which relegates the high importance of finality in litigation to second place.

The background of the claim is important in order to understand how the Court of Appeal came to the decision to reopen the appeal.

Singh concerned a challenge under Part 5A of the Nationality, Immigration and Asylum Act 2002, in particular section 117B and the requirement of the Court to determine whether a decision made under the Immigration Acts breaches a person’s right to respect for private and family life under Article 8 ECHR.

The relevant facts of Singh are that he was the Applicant seeking permission to appeal in the Court of Appeal. His claim originated from an application he made in February 2015 for leave to remain which was refused by the Secretary of State (SoS) on several grounds, including that he had failed to meet the suitability criteria due to submitting a “false” TOEIC certificate. As such the SoS decided that his presence in the United Kingdom was considered not to be conducive to the public good (public interest consideration). He had a child in the United Kingdom and sought to rely on his parental relationship with the child as a reason to remain in the United Kingdom. However, the SoS refused this claim but granted him a right of appeal, which he exercised.

At the time the appeal was being considered by the FtT and the UT respectively, the general understanding of these types of claims was that the interest of the child was to be balanced against public interest considerations pursuant to a raft of authoritative cases such as MA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 705; AM (Pakistan) v Secretary of State for the Home Department [2017] EWCA Civ 180; MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 617. On this understanding the UT dismissed his appeal.

He appealed against the UT’s determination. The basis of his appeal before the Court of Appeal concerned whether section 117B(6) of the 2002 Act was a self-contained provision, or whether the wider public interest considerations come into play when considering the test of “reasonableness”- thus leading to a balancing exercise between public interest considerations (removing a foreign national parent whose conduct is deemed not conducive to the public good) and the interests of the child.

The UT determination was promulgated on 6 July 2018 and on 24 October 2018 the Supreme Court handed down its judgement in KO (Nigeria) v Secretary of State for the Home Department[2018] UKSC 53. The case of KO (Nigeria) was important as it reversed the previous generally-held understanding of section 117B(6) by holding that the assessment of reasonableness does not require, and in fact precludes, any balancing of the child’s interests.

By this point the Court of Appeal had pending before it an application on the papers for permission to appeal. The Court directed written submissions on the effect of KO (Nigeria) to this appeal.

Singh complied and his submissions were sent by recorded delivery and were signed for by the Court clerk. However, due to a clerical error the submissions were not before the Judge who determined the application. No submissions on KO (Nigeria) were made by the SoS at this point. The clerical error meant that when the application was decided it was done without sight the submissions regarding KO (Nigeria). The application was dismissed.

How CPR 52.30 was used:

Singh made an application under CPR 52.30 to reopen the final determination of the appeal on the ground that there was a real possibility that the Court had not considered key submissions made by the Applicant. As evidence of this the applicant pointed to the lack of reference to KO (Nigeria) in the refusal of permission and the reference to negative TOEIC findings (public interest considerations – which KO (Nigeria) had precluded).

The Court accepted “beyond doubt” that the court file made it clear that the Applicant’s submissions were not before the Court when it determined the application for permission to appeal.

The Court found that Singh’s submissions were “important and compelling” and that the SoS agreed with most of them. They had also been filed properly, and in good time in accordance with the request of the Court. These factors were said to “critically undermine” the proceedings. The Court also found that whilst it could not be said with absolute certainty that the submissions would have led to permission being granted, there was a “very good chance” that permission would have been granted. Further it was noted that the prospects of success on appeal were “high.” In light of the dicta provided in Re U (A Child) one can see why the Court decided that this was a case which came within the scope of CPR 52.30 as quite clearly Singh would have suffered real injustice as a result of the clerical error.

In the decision the Court goes some way to ensure that practitioners are aware that the court will not reopen an appeal where the decision was merely “wrong.” This is an exceptional jurisdiction. The overall reasoning relies heavily on the injustice to the appellant. But clearly the “integrity” of the proceedings were “critically undermined” by a procedural failing (which was apparent here).

There may be real injustice, but there is an alternative remedy – making a fresh application?

It should be noted that whilst the SoS conceded that permission would be granted in this case, she sought to resist the application to reopen the appeal on the basis that there was an alternative remedy open to Singh – namely making a fresh application which would be considered by the SSHD in light of KO (Nigeria) guidance. The Court of Appeal was unconvinced by this argument and felt that it would not be right to allow the error to stand. Additionally, one wonders how effective a fresh application would have been for Singh as he had already been involved in litigation for nearly several years. This is important as it demonstrates a flexibility in the application of the rule, with the overarching consideration being what is just in all the circumstances.

The reasoning in Singh is focused on the injustice, particularly where there is a discussion about the alternative remedy. The court does not say there is not an alternative remedy, but rather that it would not be just not to reopen the appeal; see paragraph 26:

“…Third, he submitted that, if the appeal is not reopened, the Applicant would have an effective alternative remedy, because he is not facing imminent removal and it remains open to him to make a fresh application for leave to remain on human rights grounds. However, in all the circumstances, I am unpersuaded that it would be just to leave the Applicant to proceed on that course, when his appeal to this court has been wrongly dismissed at permission stage. It seems to me that such a new application may face hurdles that his current application, on appeal, does not.”

Due to the ever changing understanding and interpretation of the law in the field of immigration and the application of Article 8 ECHR to immigration law, it will be interesting to see if other Appellants try to utilise this jurisdiction to reopen appeals where their cases were finally determined prior to significant decisions, such as KO (Nigeria).

Can an appeal in the Upper Tribunal be reopened?

The Upper Tribunal Procedural Rules 2008 also make provision for the setting aside of decision which disposes of proceedings; see Rule 43:

Setting aside a decision which disposes of proceedings:

43.—

(1) The Upper Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if—

(a) the Upper Tribunal considers that it is in the interests of justice to do so; and

(b) one or more of the conditions in paragraph (2) are satisfied.

(2) The conditions are—

(a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party’s representative;

(b) a document relating to the proceedings was not sent to the Upper Tribunal at an appropriate time;

(c) a party, or a party’s representative, was not present at a hearing related to the proceedings; or

(d) there has been some other procedural irregularity in the proceedings.

These rules are far more restrictive and require a “procedural irregularity.” There is also a very short time limit (1 month), although of course applications can be made to extend time. Where appeals have been dismissed by the UT there is always the possibility of making an application for permission to appeal to the CoA with an application for an extension of time where there has been a significant clarification of the law. Such an application would not be straightforward and would have to be carefully thought through, but certainly worth considering, because a fresh application to the SSHD may not remedy the injustice caused by not reopening the appeal; as recognized by LJ Hickningbottom at paragraph 26:

…Third, he submitted that, if the appeal is not reopened, the Applicant would have an effective alternative remedy, because he is not facing imminent removal and it remains open to him to make a fresh application for leave to remain on human rights grounds. However, in all the circumstances, I am unpersuaded that it would be just to leave the Applicant to proceed on that course, when his appeal to this court has been wrongly dismissed at permission stage. It seems to me that such a new application may face hurdles that his current application, on appeal, does not.

(2) Second appeals test: compelling reason to hear the appeal:

Practitioners will be well versed with the second appeals test pursuant to Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 which provides that permission to appeal is not to be granted unless the UT or the Court of Appeal considers:

• that the proposed appeal would raise some important point of principle or practice, or
• that there is some other compelling reasonfor the relevant appellate court to hear the appeal.

What may amount to a compelling reason was considered in PR (Sri Lanka) v Secretary of State for the Home Department[2012] 1 WLR 73, and later in JD (Congo) v Secretary of State for the Home Department[2012] EWCA Civ 327 which held that:

22. We accept Mr. Beloff’s submission on behalf of PLP that it is important not to lose sight of Lord Dyson’s warning that “Care should be exercised in giving examples of what might be ‘some other compelling reason’ because it will depend on the particular circumstances of the case”. Undue emphasis should not be laid on the need for the consequences to be “truly drastic”. Lord Dyson was expressly giving two, non exhaustive, examples. However, the second of his examples makes it clear that very adverse consequences for an applicant(or per Baroness Hale, the “extremity of consequences for the individual”) are capable, in combination with a strong argument that there has been an error of law, of amounting to “some other compelling reason.”

23. While the test is a stringent one it is sufficiently flexible to take account of the “particular circumstances of the case.”It seems to us that those circumstances could include the fact that an appellant has succeeded before the FTT and failed before the UT, or the fact that the FTT’s adverse decision has been set aside, and the decision has been re-made by the UT. Where they apply, those circumstances do not, of themselves, amount to “some other compelling reason”, but they are capable of being a relevant factor when the court is considering whether there is such a reason. In Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070 Dyson LJ (as he then was) said that “anything less than very good prospects of success will rarely suffice” for the purposes of the second-tier appeals test. However, he recognised that there “may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not high”: see the passages from Uphill cited in paragraph 8 of PR. Dyson LJ did not refer to the kind of circumstances with which we are concerned in these applications. That is not surprising, the Court in Uphill was not considering a case where the applicant for permission to appeal had succeeded at first instance but had failed at the first level of appeal. The defendant had failed before both the District Judge and the County Court Judge. Since Lord Dyson referred to Uphill and other authorities in his review of the earlier cases in Cart, it is appropriate to take his reference to the need for there to be a“strongly arguable” error of law as a synthesis of those earlier authorities.

The case of JD (Congo) makes it clear that the “compelling reasons” test is a subjective. The appellant would have to demonstrate a strong error of law due to “very adverse consequences.” In Singh, the Court of Appeal provided helpful guidance in relation to Article 8 ECHR claims and the “compelling reason” test:

24. In my view, the fact that, when refusing permission to appeal, Sir Stephen Silber did not have before him important and compelling submissions from the Applicant – with most of which the Secretary of State apparently agreed – which had been filed properly and in good time, at the request of the court, critically undermined the proceedings. Whilst it cannot be said that, if Judge Jackson had approached section 117B(6) properly, he would necessarily have allowed the Applicant’s appeal against the refusal of his application for leave to remain, there is a very good chance that on the evidence he would have done so. In those circumstances, the appeal was arguable. Indeed, in my view, the prospects of success on an appeal were high.

25. Although the Upper Tribunal had remade the decision on the appeal before the First-tier Tribunal coming to a different conclusion, before this court it was of course a second appeal to which the second appeal criteria of CPR rule 52.7(2) applied, i.e. permission could be granted only if the appeal had a real prospect of success and raised an important point of principle or practice, or there was some other compelling reason for this court to hear it. However, it seems to me that, although every case must turn on its own facts, it may be a compelling reason to allow a second appeal to proceed where, due to a misinterpretation of the law by the first appeal court/tribunal as recently clarified, there may be a high risk of the applicant’s article 8 rights being infringed.That is the case here; and, in my judgment, on the facts of this case that would provide a compelling reason to allow a second appeal to proceed. This is not a case in which the appeal should not be reopened because, if reopened, the Applicant would likely not be granted permission to appeal in any event. Indeed, the Secretary of State concedes that, if the appeal is reopened, the Applicant should be granted permission to appeal, a matter to which I shall shortly return.

Paragraph 25 is important as it demonstrates that the Court of Appeal is willing to consider that a “high risk” of infringement of Article 8 ECHR rights, due to a misinterpretation of the law, may be enough on its own to satisfy the “compelling reason” test. As acknowledged in Singh, the appeal was arguable and the prospects of success on appeal were “high.”

Although Singh is a decision on a very narrow issue, it could potentially provide appellants and practitioners with a very useful basis for applying to set aside final decisions and showing compelling reasons when appealing to the court of appeal.

On the basis of Singh, the “high risk” of breach of Article 8 ECHR together with a misapplication of the law is enough to satisfy the compelling reason test. This may not sit very comfortably with the reasoning in PB (Sri Lanka) and JD (Congo), but the Court’s reliance upon the potential injustice to the Appellant is a welcome application of the second appeals tests for appeals relying on Article 8 ECHR rights. Again, the fast pace within which immigration law changes raises a real possibility of such compelling reasons being advanced in other appeals.