Appeals from the Upper Tribunal to the Court of Session – “second appeal test” ultra vires
17 April 2012
Section 13 of the Tribunals Courts and Enforcement Act 2007 gives a right of appeal from the Upper Tribunal to the Court of Session on any point of law arising from a decision of the Upper Tribunal. That right may be exercised only with permission. Rule of Court 41.57 (formerly 41.59) stated: “permission shall not be granted … unless the court considers that - (a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason for the court to appeal the appeal”. In KP and MRK v. Home Secretary  CSIH 38 the Inner House has held that this Rule of Court is ultra vires.
KP and her son MRK applied for asylum in the United Kingdom on the basis of prolonged domestic abuse at the instance of KP’s husband in Pakistan. The Home Secretary refused their application. The applicants appealed to the First Tier Tribunal, which allowed their appeal on both asylum and human rights grounds. The Home Secretary’s appeal to the Upper Tribunal was allowed. KP and MRK applied to the Upper Tribunal for permission to appeal to the Court of Session but this was refused. The applicants applied to the Court of Session itself for permission. As part of their application for permission they challenged the validity of Rule Court 41.59.
Rule of Court 41.59 reflected the “second appeals test” which applies generally to second appeals in English civil procedure. Section 13 of the 2007 Act specifically empowered the Lord Chancellor to apply that test to appeals from the Upper Tribunal to the Court of Appeal in England and Wales and Northern Ireland, but made no equivalent provision for appeals to the Court of Session. The only relevant rule-making power for Scotland was section 5 of the Court of Session Act 1988 but this is limited to matters of practice and procedure.
The Inner House has held that the limitation on permission to appeal from the Upper Tribunal introduced by Rule of Court 41.59 was not a matter of “practice and procedure” which could be enacted under section 5 of the 1988 Act. The “second appeals test” has the intended consequence that an appeal which the Court has jurisdiction to hear and which is recognized to have reasonable, or indeed greater, prospects of success may nonetheless not be entertained by the Court. Whether or not such a limitation is justified as a matter of policy, it is not, the Court has held, a matter for the elaboration by a court of rules for its procedures.
W. James Wolffe QC of Axiom Advocates appeared for the applicants. Mark Lindsay QC and John MacGregor, Advocate, also both of Axiom Advocates, appeared for the Home Secretary. Ruth Crawford QC, of Axiom Advocates, appeared as amicus curiae.
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