Asylum Appeals at the Upper Tribunal: Process and Tactics

The Upper Tribunal (UT) is a superior court of record. The Immigration and Asylum Chamber of the UT hears:

• Appeals from the First-tier Tribunal (FTT) Immigration and Asylum Chamber on points of law.
• Judicial review of immigration decisions (in some circumstances).
• Cart judicial reviews from the UT itself (since 2022, narrowed by Judicial Review and Courts Act 2022).

The UT is at the same level as the High Court. Its decisions are binding on future FTT decisions and (where reported) form part of the body of immigration case law. UT judges are senior — usually Circuit Judges sitting in their judicial capacity.

The UT can intervene only if the FTT made an error of law. Errors of law include:

• Misdirection in law — applying the wrong legal test, citing wrong case law, ignoring a binding authority.
• Failure to consider relevant evidence — not addressing a country expert's report, ignoring a witness statement, glossing over central documents.
• Considering irrelevant matters — taking into account things that should not weigh in the decision.
• Perversity — a finding of fact that no reasonable tribunal could have made on the evidence (rare).
• Procedural unfairness — denying a fair hearing, refusing an adjournment that should have been granted, not allowing key witnesses.
• Inadequate reasons — the tribunal's reasoning is so unclear that the parties cannot understand why they won or lost.
• Misinterpretation of country evidence — wrongly reading country information reports or expert evidence.

Mere disagreement with factual findings is NOT an error of law. The UT will not re-decide the case on its merits unless the FTT got the law wrong.

Two-stage permission process:

1. Application to the FTT — within 14 days of the FTT's decision (in-country) or 28 days (out of country). The application must identify the specific errors of law. The FTT judge who decided the case (or another judge) reviews and either grants or refuses permission.
2. Renewed application to the UT — if the FTT refuses permission, you can apply directly to the UT within 7 days of being notified. The UT judge looks at the FTT's reasons for refusal and the grounds of appeal. They can grant on a narrower basis than the original grounds.

If permission is granted, the appeal proceeds to a substantive hearing. If permission is refused at both stages, the next step is a Cart judicial review to the High Court (very rare, narrow grounds).

The hearing format:

• Usually 1-2 hours. UT cases are mostly heard on the legal issues; new evidence is rarely admitted.
• The appellant's representative argues the errors of law identified in the permission grant.
• The Home Office Presenting Officer responds.
• The judge may ask both sides questions to test the arguments.
• Decision usually reserved (written within 4-8 weeks). For straightforward cases, decisions can be given orally on the day.

If error of law is found, the UT will either: re-make the decision itself (more common for clear cases); remit to the FTT for re-hearing before a different judge; or remit with specific findings preserved (e.g. preserving a credibility finding while the legal point is reheard).

Generally, the UT decides on the same evidence the FTT had. Fresh evidence is admitted only with permission, under the Ladd v Marshall criteria adapted for immigration cases:

• The evidence was not available at the FTT despite reasonable diligence;
• The evidence would probably have had an important influence on the decision;
• The evidence is credible.

In asylum cases, the UT can be more flexible because of the gravity of the consequences. Recent country information showing changed conditions, or evidence of post-decision adverse experiences in the home country, is often admitted. But you must apply formally — by application notice with the proposed evidence attached — before the hearing.

If the UT refuses your appeal, the next step is the Court of Appeal. Permission is required from the UT first; if refused, you can apply directly to the Court of Appeal. The test is whether the UT's decision has an "important point of principle or practice" or there is "some other compelling reason" for the Court of Appeal to hear it. This is a high bar.

Below the formal court route, you may still have an asylum claim if there is a "fresh claim" (under paragraph 353 of the Immigration Rules) — new evidence or significantly changed circumstances. This is dealt with by the Home Office, not the tribunal.

For removal directions, you can apply for judicial review at the High Court to stay removal pending the substantive appeal. This is an emergency application; specialist solicitors' help is needed.