The sixth part of this blog series on practical judicial review examines those situations where there was a statutory right of appeal from an initial decision maker to a specialist appeal tribunal (the First-tier Tribunal) which has not been successful, and permission to appeal further to the Upper Tribunal has been refused by the First-tier Tribunal and the Upper Tribunal. In these circumstances the only potential remedy is by way of judicial review of the refusal of leave to appeal by the Upper Tribunal.

The sixth part of this blog series on practical judicial review examines those situations where there was a statutory right of appeal from an initial decision maker to a specialist appeal tribunal (the First-tier Tribunal) which has not been successful, and permission to appeal further to the Upper Tribunal has been refused by the First-tier Tribunal and the Upper Tribunal.  In these circumstances the only potential remedy is by way of judicial review of the refusal of leave to appeal by the Upper Tribunal.

 

Part 6: The Upper Tribunal and the 2nd Appeals Test

There are some statutory appeal systems where there is a right of appeal from the decision maker to a tribunal process, and potentially thereafter to the Court of Session on a point of law.  Where a case has been heard by a tribunal (a chamber of the First-tier Tribunal) and an unsuccessful party wishes to appeal to the Upper Tribunal it will only be entitled to do so with the consent of the First-tier Tribunal, which failing the Upper Tribunal.  There is no further right of appeal against a decision of the Upper Tribunal refusing leave to appeal.  The only potential remedy available is by way of judicial review of the decision of the Upper Tribunal.  In Eba v Advocate General Lord Hope of Craighead said (at para 48) that the test which applied for second-tier appeals in England ought to be applied to judicial review applications in Scotland in these types of case.  This means that a judicial review of an Upper Tribunal’s refusal to grant leave to appeal will only be successful where the application raises either (1) some important point of principle or practice which is not yet established [i.e., an issue of general importance, not confined to the petitioner's own facts and circumstances], or (2) some other compelling reason [i.e., the decision was perverse or plainly wrong or where, due to some procedural irregularity, the petitioner had not had a fair hearing at all].  That test has now been incorporated into the permission stage (discussed further in Part 17) by Section 27B(3) of the Courts Reform (Scotland) Act 2014.  In the subsequent case of SA v Secretary of State for the Home Department, the Inner House of the Court of Session said (at paras 43 and 44) that the petition clearly and unequivocally had to aver not only a specific error on the part of the Upper Tribunal, but also the important point of principle/practice or other compelling reason founded upon.  The scope of the test was designed to allow review only in rare and exceptional cases, in order to ensure that no compelling injustice occurs.  So far as applying the test in practice, it was said that the error would normally require to be one which cries out for consideration, and was not just potentially arguable on reading the petition.  It is not possible to raise a matter in the judicial review application which was not raised in the application to the tribunal for leave to appeal.  This also means that considerable care has to be taken when drafting the grounds of appeal because, if there is an important point of principle or practice, or some other compelling reason being founded up, that will need to be clearly identifiable within the grounds of appeal.  It will be too late if the important point or other compelling reason is only identified for the first time in the judicial review petition itself.

When the matter comes before a judge for consideration, the issue that the judge is considering is whether there are any averments in the petition which satisfy the test in Eba v Advocate General.  The judge may take the view that there are no such averments, that there are some averments which do satisfy the test and some that do not, or that all of the averments satisfy the test.  In Mdluli v Secretary of State for the Home Department a judge deleted some averments and allowed the matter to proceed to a hearing in respect of the remaining averments.  That hearing took place before a different judge whose function was to consider and adjudicate on the merits of the judicial review excluding the deleted averments.  However, that was not done.  Unfortunately, no further guidance was provided.

 

Legislative provisions

Courts Reform (Scotland) Act 2014, Section 27B(3)

 

Leading cases

Eba v Advocate General, 2012 SC (UKSC) 1

A v Secretary of State for the Home Department, 2012 SLT 1075

SA v Secretary of State for the Home Department, 2014 SC 1

Mdluli v Secretary of State for the Home Department, 2015 SC 103

HH v Secretary of State for the Home Department, 2015 SC 613