(1) Rule 31 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and rule 42 of the Tribunal Procedure (Upper Tribunal) Rules 2008 may each be employed in order to correct an error in a decision granting or refusing permission to appeal to the Upper Tribunal. In cases of obvious error, the Upper Tribunal Immigration and Asylum Chamber can, in general, be expected in future to proceed as follows.
(2) Where the First-tier Tribunal permission judge has granted permission when the reasons make it evident they meant to refuse, an Upper Tribunal Judge, acting as a Judge of the First-tier Tribunal, will make the necessary correction under rule 31 of the FtTIAC Rules, as soon as the matter is identified, whether that is at case management stage, as a result of communication from a party, or otherwise. Although the matter can and should (as in the present case) be raised in a rule 24 response from the respondent, it is preferable for it to be addressed earlier, since a hearing may already have been arranged before that response is received.
(3) Where the First-tier Tribunal permission judge refuses permission, but clearly meant to grant it, any renewal of permission before the Upper Tribunal should point out the error and ask for it to be corrected under rule 31. In any event, a party should inform the Upper Tribunal of the mistake.
(4) In the Upper Tribunal, where a judge grants permission when they clearly meant to refuse, the error is unlikely to be identified at a case management stage, if and insofar as that stage is undertaken by the same judge, immediately after their mistaken grant. This highlights the point, emphasised in Isufaj (PTA decisions/reasons: EEA reg. 37 appeal) [2019] UKUT 283 (IAC), that it is the responsibility of the permission judge, whether in the First-tier Tribunal or the Upper Tribunal, to make sure there is no contradiction between their decision and the reasons for it. Otherwise, the points made above in respect of the rule 24 response apply also in this situation.
(5) Where an Upper Tribunal Judge refuses permission to appeal, when they clearly meant to grant it, the decision is an ‘excluded decision’: section 13(8)(c) of the 2007 Act and cannot be appealed to the appropriate appellate court. A party should, therefore, apply for the Upper Tribunal to exercise its power of correction under rule 42.
(6) The process just described applies only to those cases in which there is a clear and obvious contradiction between the intention of the judge who decided the application for permission and the order made on that application. In any other case, parties should proceed on the basis that the decision is that recorded in the relevant document and the Tribunal is likely to regard it as productive of delay and a waste of its resources to engage in an inter partes process in order to determine whether the slip rule should be applied.
[2020] UKUT 249 (IAC)
Bailii
England and Wales
Immigration
Updated: 04 December 2021; Ref: scu.653928