An application to the Upper Tribunal for permission to appeal to the Court of Appeal against a costs order made in an immigration judicial review should be subject to a ‘first appeals test’, not a ‘second appeals test’, the Court of Appeal has ruled.
In doing so, it overturned the decision of the then president of the immigration and asylum chamber of the Upper Tribunal, Mr Justice McCloskey.
A ‘first appeals test’ involves a first appeal against a decision of a lower court (such as the First-tier Tribunal). The requirement for permission is simply an arguable ground of appeal with realistic prospect of success.
A ‘second appeals test’ is much more stringent, engaged where an applicant has already had one appeal determined by an appellate court (such as the Upper Tribunal) and is requesting permission for a second appeal at a higher court. It requires the applicant to raise not just an arguable ground of appeal but also an important point of principle or practice, or another compelling reason for the appeal to be allowed to proceed.
According to an article by John Vassiliou, an associate solicitor at Scottish firm McGill and Co, on the Free Movement website, the Court of Appeal in Nwankwo and Anor v Secretary of State for the Home Department  EWCA Civ 5 found that, in judicial review cases, the Upper Tribunal does not act as an appellate court. Rather, it is hearing the case at first instance. It is only where the tribunal has acted in this capacity that the less rigorous ‘first appeals test’ is to be applied.
Although the Secretary of State conceded that the first appeals test was the correct one, she argued for “an elevated or robust approach to the permission threshold”.
Giving the main judgment, Lord Justice Singh rejected this, saying: “It makes obvious sense that the same test must be applied when the UT initially considers an application for permission to appeal to this court. That is the test to be found in Part 52 of the CPR.”
He also declined the Secretary of State’s request for further guidance on the test for deciding permission to appeal against a cost order: “Sufficient guidance has already been given by this court in the well-known case of R (M) v Croydon LBC  EWCA Civ 595;  1 WLR 2607, in which this court considered how applications for costs should be dealt with in judicial review proceedings.”
Mr Vassiliou said the Upper Tribunal’s guidance has not been struck down entirely. “It still stands in relation to forms, time limits, substantive requirements for an application for permission to appeal in the Upper Tribunal, guidance for tribunal judges on how to treat deficient permission to appeal applications, and fees.
“But this is a significant clarification on the test that should be applied where an appeal against a cost order arising from a judicial review is made.”
Picture credit: The Department for International Development (Creative Commons)