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You are here: Home / Procedure / Challenging a refusal of permission to appeal by the Upper
Tribunal
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This piece started life as a practice note for welfare benefits cases but the same principles are
transferrable to the immigration jurisdiction so we thought it would be helpful to share it here on
Free Movement as well.
If permission to appeal against a decision of a
Contents
Costs
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Public funding
Judicial review remains in scope under paragraph 19(2)(a) of Schedule 1, Part 1 to LASPO.
Accordingly, work done on a public law challenge by way of judicial review of an Upper Tribunals
decision to refuse permission comes under the Public Law category. Otherwise, the work can be
covered by the Immigration Law category, in so far as the public law challenge relates to the
underlying substance of the case: see Category Definitions in the Standard Civil Contract 2013,
Category Definitions paragraph 13.
However, from 22 April 2014, work done on an application for permission for judicial review will not
be paid unless the Court grants permission for the application to proceed, subject to a
discretionary payment by the Legal Aid Agency (The Civil Legal Aid (Remuneration) (Amendment)
(No. 3) Regulations 2014 (SI 607). It should be noted that this does not affect work done prior to
the issuing of proceedings, such as advising on the merits.
The procedure
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refusal of permission to appeal by the Upper Tribunal are set out below.
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Costs
The general rule as to costs is that the unsuccessful party will be ordered to pay the costs of the
successful party (CPR rule 44.3(2)(a)). However, no order for costs will usually be made against
the Upper Tribunal if it takes no part in the proceedings (R (Davies (No 2) v HM Deputy Coroner
for Birmingham [2004] EWCA Civ 207, para [27]). On the other hand, an interested party will
normally be ordered to pay the claimants costs if they opposed the application for judicial review
(R v Hastings Licensing Justices Ex p. John Lovibond & Sons [1968] 1 WLR 735, cited in Davies
(No 2), at para [13].
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Related
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There are still some firms out there who have not yet
signed up for Free Movement Membership. As an
added incentive, I'm offering a 50% [Read More...]
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