Revista Temas de Derecho Constitucional
248 Revista Temas de Derecho Constitucional The right to appeal is not automatic though: Claimants require to seek permission to proceed. For that purpose, an application for permission to appeal must be lodged with the FtT clerk in writing, no later than 14 days after the decision was promulgated orally at the hearing or it was sent to the appellant, if in writing. The FtT then must consider whether to review the decision. The Tribunal may undertake the review of its own decision or grant permission to appeal only if satisfied that there was an error of law. This means that an appeal will not proceed against the judge’s findings in respect of the facts, or in terms of the credibility and reliability of a witness. There is no ‘second bite at the cherry’ as it were. As the judge has had the opportunity to see and hear the evidence directly, their assessment will not ordinarily be interfered with by a superior court except on grounds of irrationality ( Edwards v Bairstow [1956] AC 14). Nonetheless, if in coming to their decision a judge has considered irrelevant facts, or has left out of consideration relevant facts, or has misapplied the law they will have incurred in an error of law, and errors of law are justiciable. Errors of law can take many forms ( Nixon (permission to appeal: grounds) [2014] UKUT 00368 (IAC) by The Hon. Mr Justice McCloskey at para. 10), yet not every error of law counts. The error has to be material, i.e. make a difference to the outcome, as per R (Iran) [2005] EWCA Civ 982 34 and Anoliefo (permission to appeal) [2013] UKUT 00345 (IAC) 35 . If the Tribunal however finds no material error of law and decides not to review it or not to act in respect of the decision or part of it, it must then consider whether to grant permission for the claimant to go to the Upper Tribunal (The UT). b. The Upper Tribunal The UT is the superior court of record in respect of proceeding at the FtT 36 . Proceedings at the UT are regulated by the Tribunal Procedure (Upper Tribunal) Rules 2008 (as amended). An application for permission to appeal to the UT must be received no later than 14 days after the date on which notice of the FtT’s refusal was sent to the appellant. The statutory basis for the right to appeal to the UT is found under section 11 of the Tribunals, Courts and Enforcement Act 2007 and s21(2) of the 2008 Rules. Permission to appeal can come from the FtT, failing which it will need to come from the UT directly. Although not necessarily, if a court has already adjudicated on whether permission should be granted, it will be harder for an appellant to persuade a superior court that there is an error in law in the decision. According to the 2008 Rules, it is for the party alleging the error to identify the grounds on which they rely and to do so ‘clearly and coherently, with appropriate particulars’, or risk being dealt with ‘brusquely and robustly’ by the court ( Nixon , at Para. 11). Again, the error ought to be material to the decision. The appeal can be disposed of without a hearing, but as a norm a hearing is held. This takes the form of a debate, with the representative for the appellant on one side and a senior representative for the Secretary of State on the other. There is no rehearsal of the evidence, as this is a 34 At Paras. 9 & 10. 35 At Para. 16. 36 Section 3(5) of the Tribunals, Courts and Enforcement Act 2007
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