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Court of Appeal confirms correct permission to appeal test to be applied by the Upper Tribunal

15th January 2018

The Court of Appeal has confirmed that, in judicial review claims heard by the Upper Tribunal, and in respect of costs order made during judicial review proceedings, the test to be applied by the Upper Tribunal when considering whether to grant permission to appeal to the Court of Appeal is the first appeals test, and not the second appeals test.

The Secretary of State had conceded that the applicable test when the Upper Tribunal is exercising its original jurisdiction (rather than its appellate jurisdiction on appeal from the First-tier Tribunal) is the first appeal test.   However, the Court of Appeal’s judgment provides helpful confirmation as to the correct permission to appeal test to be applied by the Upper Tribunal in circumstances where section 13 of the Tribunals, Courts and Enforcement Act 2007 and the Tribunal Procedure (Upper Tribunal) Rules 2008 are silent as to the applicable test.

Sian Reeves, instructed by the Government Legal Department represented the Secretary of State for the Home Department.

The judgment was handed down on 12 January 2018 and is reported as R (Nwankwo & Anor) v. Secretary of State for the Home Department [2018] EWCA Civ 5.

Judgment was handed down on 12 January 2018 – see link below.



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Sian Reeves

Sian Reeves
Year of Call: 2006