The Tribunal Procedure (Upper Tribunal) Rules 2008

PART 7 Correcting, setting aside, reviewing and appealing decisions of the Upper Tribunal

Interpretation

41.  In this Part—

“appeal”[F1 , except in rule 44(2) (application for permission to appeal),] means the exercise of a right of appeal under section 13 of the 2007 Act; and

“review” means the review of a decision by the Upper Tribunal under section 10 of the 2007 Act.

Textual Amendments

F1 Words in rule 41 inserted (1.4.2009) by Tribunal Procedure (Amendment) Rules 2009 (S.I. 2009/274), rules 1, 22

Clerical mistakes and accidental slips or omissions

42.  The Upper Tribunal may at any time correct any clerical mistake or other accidental slip or omission in a decision or record of a decision by—

(a) sending notification of the amended decision, or a copy of the amended record, to all parties; and

(b) making any necessary amendment to any information published in relation to the decision or record.

Setting aside a decision which disposes of proceedings

43.—(1) The Upper Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if—

(a) the Upper Tribunal considers that it is in the interests of justice to do so; and

(b) one or more of the conditions in paragraph (2) are satisfied.

(2) The conditions are—

(a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party's representative;

(b) a document relating to the proceedings was not sent to the Upper Tribunal at an appropriate time;

(c) a party, or a party's representative, was not present at a hearing related to the proceedings; or

(d) there has been some other procedural irregularity in the proceedings.

(3) [F2 Except where paragraph (4) applies,] a party applying for a decision, or part of a decision, to be set aside under paragraph (1) must make a written application to the Upper Tribunal so that it is received no later than 1 month after the date on which the [F3 Upper] Tribunal sent notice of the decision to the party.

[F4 (4) In an asylum case or an immigration case, the written application referred to in paragraph (3) must be sent or delivered so that it is received by the Upper Tribunal—

(a) where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application is made, no later than twelve days after the date on which the Upper Tribunal or, as the case may be in an asylum case, the Secretary of State for the Home Department, sent notice of the decision to the party making the application; or

(b) where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application is made, no later than thirty eight days after the date on which the Upper Tribunal sent notice of the decision to the party making the application.

(5) Where a notice of decision is sent electronically or delivered personally, the time limits in paragraph (4) are ten working days.]

Textual Amendments

F2 Words in rule 43(3) inserted (15.2.2010) by The Tribunal Procedure (Amendment No. 2) Rules 2010 (S.I. 2010/44), rules 1, 21(a)

F3 Word in rule 43(3) inserted (1.11.2013) by The Tribunal Procedure (Amendment No. 4) Rules 2013 (S.I. 2013/2067), rules 1, 17

F4 Rule 43(4)(5) inserted (15.2.2010) by The Tribunal Procedure (Amendment No. 2) Rules 2010 (S.I. 2010/44), rules 1, 21(b)

Application for permission to appeal

44.—(1)  [F5 Subject to [F6 paragraphs (4A) and (4B)],] a person seeking permission to appeal must make a written application to the Upper Tribunal for permission to appeal.

(2) Paragraph (3) applies to an application under paragraph (1) in respect of a decision—

(a) on an appeal against a decision in a social security and child support case (as defined in the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 M1 );

(b) on an appeal against a decision in proceedings in the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal M2 ; F7 ...

[F8 (ba) on an appeal against a decision of a Pensions Appeal Tribunal for Scotland or Northern Ireland; or]

(c) in proceedings under the Forfeiture Act 1982.

(3) Where this paragraph applies, the application must be sent or delivered to the Upper Tribunal so that it is received within 3 months after the date on which the Upper Tribunal sent to the person making the application—

(a) written notice of the decision;

(b) notification of amended reasons for, or correction of, the decision following a review; or

(c) notification that an application for the decision to be set aside has been unsuccessful.

[F9 (3A) An application under paragraph (1) in respect of a decision in an asylum case or an immigration case must be sent or delivered to the Upper Tribunal so that it is received within the appropriate period after the Upper Tribunal or, as the case may be in an asylum case, the Secretary of State for the Home Department, sent any of the documents in paragraph (3) to the party making the application.

(3B) The appropriate period referred to in paragraph (3A) is as follows—

(a) where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application is made—

(i) [F10 twelve working days]; or

(ii) if the party making the application is in detention under the Immigration Acts, seven working days; and

(b) where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application is made, thirty eight days.

(3C) Where a notice of decision is sent electronically or delivered personally, the time limits in paragraph (3B) are—

(a) in sub-paragraph (a)(i), ten working days;

(b) in sub-paragraph (a)(ii), five working days; and

(c) in sub-paragraph (b), ten working days.]

[F11 (3D) An application under paragraph (1) in respect of a decision in a financial services case must be sent or delivered to the Upper Tribunal so that it is received within 14 days after the date on which the Upper Tribunal sent to the person making the application—

(a) written notice of the decision;

(b) notification of amended reasons for, or correction of, the decision following a review; or

(c) notification that an application for the decision to be set aside has been unsuccessful.]

(4) Where paragraph (3) [F12 , (3A)[F13 , (3D) or (4C)]] does not apply, an application under paragraph (1) must be sent or delivered to the Upper Tribunal so that it is received within 1 month after the latest of the dates on which the Upper Tribunal sent to the person making the application—

(a) written reasons for the decision;

(b) notification of amended reasons for, or correction of, the decision following a review; or

(c) notification that an application for the decision to be set aside has been unsuccessful.

[F14 [F15 (4A)] Where a decision that disposes of immigration judicial review proceedings is given at a hearing, a party may apply at that hearing for permission to appeal, and the Upper Tribunal must consider at the hearing whether to give or refuse permission to appeal.

(4B) Where a decision that disposes of immigration judicial review proceedings is given at a hearing and no application for permission to appeal is made at that hearing—

(a) the Upper Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal; and

(b) if permission to appeal is given to a party, it shall be deemed for the purposes of section 13(4) of the 2007 Act to be given on application by that party.

(4C) Where a decision that disposes of immigration judicial review proceedings is given pursuant to rule 30 and the Upper Tribunal records under rule 30(4A) that the application is totally without merit, an application under paragraph (1) must be sent or delivered to the Upper Tribunal so that it is received within 7 days after the later of the dates on which the Upper Tribunal sent to the applicant—

(a) written reasons for the decision; or

(b) notification of amended reasons for, or correction of, the decision following a review.]

(5) The date in paragraph (3)(c) or (4)(c) applies only if the application for the decision to be set aside was made within the time stipulated in rule 43 (setting aside a decision which disposes of proceedings) or any extension of that time granted by the Upper Tribunal.

(6) If the person seeking permission to appeal provides the application to the Upper Tribunal later than the time required by paragraph (3)[F16 , (3A)][F17 , (3D)] or (4), or by any extension of time under rule 5(3)(a) (power to extend time)—

(a) the application must include a request for an extension of time and the reason why the application notice was not provided in time; and

(b) unless the Upper Tribunal extends time for the application under rule 5(3)(a) (power to extend time) the Upper Tribunal must refuse the application.

(7) An application under paragraph (1) [F18 or (4A)(a)] must—

(a) identify the decision of the [F19 Upper] Tribunal to which it relates;

(b) identify the alleged error or errors of law in the decision; and

(c) state the result the party making the application is seeking.

Textual Amendments

F5 Words in rule 44(1) inserted (11.12.2012) by The Tribunal Procedure (Upper Tribunal) (Amendment) Rules 2012 (S.I. 2012/2890), rules 1, 3(a)

F6 Words in rule 44(1) substituted (1.11.2013) by The Tribunal Procedure (Amendment No. 4) Rules 2013 (S.I. 2013/2067), rules 1, 18(a)

F7 Word in rule 44(2)(b) omitted (1.4.2009) by virtue of Tribunal Procedure (Amendment) Rules 2009 (S.I. 2009/274), rules 1, 23(a)

F8 Rule 44(2)(ba) inserted (1.4.2009) by Tribunal Procedure (Amendment) Rules 2009 (S.I. 2009/274), rules 1, 23(b)

F9 Rule 44(3A)-(3C) inserted (15.2.2010) by The Tribunal Procedure (Amendment No. 2) Rules 2010 (S.I. 2010/44), rules 1, 22(2)

F10 Words in rule 44(3B)(a)(i) substituted (1.4.2011) by The Tribunal Procedure (Amendment) Rules 2011 (S.I. 2011/651), rules 1(2)(a), 8(4)

F11 Rule 44(3D) inserted (6.4.2010) by The Tribunal Procedure (Upper Tribunal) (Amendment) Rules 2010 (S.I. 2010/747), rules 1, 10(a)

F12 Words in rule 44(4) substituted (6.4.2010) by The Tribunal Procedure (Upper Tribunal) (Amendment) Rules 2010 (S.I. 2010/747), rules 1, 10(b)

F13 Words in rule 44(4) substituted (1.11.2013) by The Tribunal Procedure (Amendment No. 4) Rules 2013 (S.I. 2013/2067), rules 1, 18(b)

F14 Rule 44(4A)-(4C) substituted for rule 44(4A) (1.11.2013) by The Tribunal Procedure (Amendment No. 4) Rules 2013 (S.I. 2013/2067), rules 1, 18(c)

F15 Rule 44(4A) inserted (11.12.2012) by The Tribunal Procedure (Upper Tribunal) (Amendment) Rules 2012 (S.I. 2012/2890), rules 1, 3(b)

F16 Word in rule 44(6) inserted (15.2.2010) by The Tribunal Procedure (Amendment No. 2) Rules 2010 (S.I. 2010/44), rules 1, 22(4)

F17 Word in rule 44(6) inserted (6.4.2010) by The Tribunal Procedure (Upper Tribunal) (Amendment) Rules 2010 (S.I. 2010/747), rules 1, 10(c)

F18 Words in rule 44(7) inserted (11.12.2012) by The Tribunal Procedure (Upper Tribunal) (Amendment) Rules 2012 (S.I. 2012/2890), rules 1, 3(c)

F19 Word in rule 44(7)(a) inserted (1.11.2013) by The Tribunal Procedure (Amendment No. 4) Rules 2013 (S.I. 2013/2067), rules 1, 18(d)

Marginal Citations

M1 S.I. 2008/2685 (L. 13).

M2 The War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal is established by the First-tier Tribunal and Upper Tribunal (Chambers) Order 2008 (S.I. 2008/2684).

Upper Tribunal's consideration of application for permission to appeal

45.—(1) On receiving an application for permission to appeal the Upper Tribunal may review the decision in accordance with rule 46 (review of a decision), but may only do so if—

(a) when making the decision the Upper Tribunal overlooked a legislative provision or binding authority which could have had a material effect on the decision; or

(b) since the Upper Tribunal's decision, a court has made a decision which is binding on the Upper Tribunal and which, had it been made before the Upper Tribunal's decision, could have had a material effect on the decision.

(2) If the Upper Tribunal decides not to review the decision, or reviews the decision and decides to take no action in relation to the decision or part of it, the Upper Tribunal must consider whether to give permission to appeal in relation to the decision or that part of it.

(3) The Upper Tribunal must [F20 provide] a record of its decision to the parties as soon as practicable.

(4) If the Upper Tribunal refuses permission to appeal it must [F21 provide] with the record of its decision—

(a) a statement of its reasons for such refusal; and

(b) notification of the right to make an application to the relevant appellate court for permission to appeal and the time within which, and the method by which, such application must be made.

(5) The Upper Tribunal may give permission to appeal on limited grounds, but must comply with paragraph (4) in relation to any grounds on which it has refused permission.

Textual Amendments

F20 Word in rule 45(3) substituted (1.11.2013) by The Tribunal Procedure (Amendment No. 4) Rules 2013 (S.I. 2013/2067), rules 1, 19

F21 Word in rule 45(4) substituted (1.11.2013) by The Tribunal Procedure (Amendment No. 4) Rules 2013 (S.I. 2013/2067), rules 1, 19

Review of a decision

46.— [F22 (1) The Upper Tribunal may only undertake a review of a decision pursuant to rule 45(1) (review on an application for permission to appeal).]

(2) The Upper Tribunal must notify the parties in writing of the outcome of any review and of any rights of review or appeal in relation to the outcome.

(3) If the Upper Tribunal decides to take any action in relation to a decision following a review without first giving every party an opportunity to make representations, the notice under paragraph (2) must state that any party that did not have an opportunity to make representations may apply for such action to be set aside and for the decision to be reviewed again.

Textual Amendments

F22 Rule 46(1) substituted (17.10.2011) by The Tribunal Procedure (Upper Tribunal) (Amendment) Rules 2011 (S.I. 2011/2343), rules 1, 12

[F23 Setting aside] a decision in proceedings under the Forfeiture Act 1982

47.—(1) A person who referred a question to the Upper Tribunal under rule 26 (references under the Forfeiture Act 1982) must refer the Upper Tribunal's previous decision in relation to the question to the Upper Tribunal if they—

(a) consider that the decision should be [F24 set aside and re-made under this rule] ; or

(b) have received a written application for the decision to be [F25 set aside and re-made under this rule] from the person to whom the decision related.

(2) The Upper Tribunal may [F26 set aside the decision, either in whole or in part, and re-make it] if—

F27 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) the decision was made in ignorance of, or was based on a mistake as to, some material fact; or

(c) there has been a relevant change in circumstances since the decision was made.

[F28 (3) Rule 26(2) to (4), Parts 5 and 6 and this Part apply to a reference under this rule as they apply to a reference under rule 26(1).]

F28 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F28 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F23 Words in rule 47 heading substituted (17.10.2011) by The Tribunal Procedure (Upper Tribunal) (Amendment) Rules 2011 (S.I. 2011/2343), rules 1, 13(a)

F24 Words in rule 47(1)(a) substituted (17.10.2011) by The Tribunal Procedure (Upper Tribunal) (Amendment) Rules 2011 (S.I. 2011/2343), rules 1, 13(b)

F25 Words in rule 47(1)(b) substituted (17.10.2011) by The Tribunal Procedure (Upper Tribunal) (Amendment) Rules 2011 (S.I. 2011/2343), rules 1, 13(c)

F26 Words in rule 47(2) substituted (17.10.2011) by The Tribunal Procedure (Upper Tribunal) (Amendment) Rules 2011 (S.I. 2011/2343), rules 1, 13(d)

F27 Rule 47(2)(a) omitted (17.10.2011) by virtue of The Tribunal Procedure (Upper Tribunal) (Amendment) Rules 2011 (S.I. 2011/2343), rules 1, 13(e)

F28 Rule 47(3)-(5) substituted for rule 47(3) (17.10.2011) by The Tribunal Procedure (Upper Tribunal) (Amendment) Rules 2011 (S.I. 2011/2343), rules 1, 13(f)

[F29 Power to treat an application as a different type of application

48.   The [F30 Upper] Tribunal may treat an application for a decision to be corrected, set aside or reviewed, or for permission to appeal against a decision, as an application for any other one of those things.]

Textual Amendments

F29 Rule 48 inserted (29.11.2010) by The Tribunal Procedure (Amendment No. 3) Rules 2010 (S.I. 2010/2653), art. 1, rule 8(2)

F30 Word in rule 48 inserted (1.11.2013) by The Tribunal Procedure (Amendment No. 4) Rules 2013 (S.I. 2013/2067), rules 1, 20