Upper Tribunal Judicial Review appeals test overturned: Nwankwo v Secretary of State for the Home Department [2018] EWCA Civ 5

The Applicants appealed a decision of the Upper Tribunal refusing to grant permission to appeal a costs decision made in judicial review proceedings.

The Upper Tribunal refused permission to appeal by applying the second appeals test referred to in section 13(6) of the Tribunals, Courts and Enforcement Act 2007.

The Applicants appealed on the error of law ground.

Sir Kenneth Parker ordered an oral permission to appeal hearing.

In relation to the point of principle, Lord Justice Peter Jackson and Lord Justice Singh held that, based on the relevant statutory provisions, in judicial review claims heard by the Upper Tribunal, rather than on appeal from the First Tier Tribunal, the test for an appeal to the Court of Appeal was the first appeal test in part 52, not the second appeals test. Both rejected the Respondent’s attempt to create an elevated threshold test for the grant of permission to appeal. As the Court of Appeal held § para 77:

“test for an appeal to the Court of Appeal from the UT in cases of this kind, which are claims for judicial review heard by the UT exercising its original jurisdiction rather than appeals from the FTT, is the first appeal test and not the second appeal test. The UT erred in applying the second appeal test”.

Applying the first appeals test, the Court of Appeal dismissed the applications for permission to appeal the costs order on the basis that the costs decision of the Upper Tribunal was correctly made. The Court of Appeal did not make any costs orders.

Arfan Khan appeared for the First Applicant whose submissions were successful on the point of principle, which led the Respondent to concede the same in a skeleton and then following service of Replacement Grounds on behalf of the First Applicant. Arfan Khan also successfully resisted the Respondent’s application for costs.

Arfan Khan was instructed by Dylan Konrad Kreolle Solicitors on appeal, and did not appear in the proceedings below. The Court of Appeal judgment can be accessed here.


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