The President of the FTT (IAC) has issued a memorandum in relation to 'Permission to appeal applications from the First-tier Tribunal (IAC) to the Upper Tribunal and the power to set aside' .
The President reminds representatives of rule 35 of the Procedure Rules and the power of the FTT to set aside a decision where there has been a clear error of law.
This provision can be added to grounds of appeal as an alternative way of getting a decision set aside. The President sets out the procedure which will be followed and practitioners need to be aware that the SSHD may seek to rely on this provision.
I have set out the substance of the memorandum below:
1. The purpose of this memorandum is to alert representatives to rule 35 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (‘the TPR’).
2. Rules 34 and 35 of the TPR provide the following:
“34 (1) On receiving an application for permission to appeal the Tribunal must first consider whether to review the decision in accordance with rule 35.
(2) If the Tribunal decides not to review the decision, or reviews the decision and decides to take no action in relation to the decision, or part of it, the Tribunal must consider whether to give permission to appeal in relation to the decision or that part of it. …
35 (1) The Tribunal may only undertake a review of a decision—
(a) pursuant to rule 34(1) (review on an application for permission to appeal); and
(b) if it is satisfied that there was an error of law in the decision.
(2) The Tribunal must notify the parties in writing of the outcome of any review, and of any right of appeal in relation to the outcome.
(3) If the Tribunal takes action in relation to a decision following a review without first giving every party an opportunity to make representations –
(a) the notice under paragraph (2) must state that any party that did not have an opportunity to make representations may apply for such action to be set aside; and
(b) the Tribunal may regard the review as incomplete and act accordingly”.
3. The tribunal’s powers on review are set out in section 9(4) of the Tribunal Courts and Enforcement Act 2007, as follows –
Where the First-tier Tribunal has under sub-section (1) reviewed a decision, the First-tier Tribunal may in the light of the review do any of the following –
a. correct accidental errors in the decision or in a record of the decision;
b. amend reasons given for the decision;
c. set the decision aside.
4. It follows, amongst the other powers identified above, that rule 35 gives to the First-tier Tribunal (‘the FTT’) the power to set aside a decision where it is satisfied there has been a clear error or law, without the requirement to refer the matter/grant permission to appeal to the Upper Tribunal.
5. Each party will be given the opportunity to comment, and each case will need to be determined on its own merits, but where there is consensus or where no objection is received, the FTT may set aside its own decision, upon review, and then direct that the matter be re-listed to start afresh.
6. The power to review decisions is therefore an important one. A review on a point of law is intended, among other things, to provide an alternative remedy to an appeal. For example, in a case where the appeal would be bound to succeed, a review will enable appropriate action to be taken without delay.
7. Representatives are therefore invited to bear this provision in mind when seeking permission to appeal. A party is entitled to apply for permission to appeal, but add that in the alternative, they seek a set aside of the decision due to a clear error of law, pursuant to rule 35. For appropriate cases, this may lead to a saving both in terms of time and expense.
8. Upon receiving such an application, the FTT has a discretion whether to take any action/set aside the decision. But if it does not do so, it must still consider whether to give permission to appeal (rule 34(2)).
9. Rule 35 is in addition to the power under rule 32 that allows the FTT to set aside a decision that disposes of proceedings where, for example, there has been some procedural irregularity in the proceedings and it is in the interests of justice to do so.