New Case Law on Clear Grounds of Appeal
In the recent Court of Appeal case of AL v Secretary of State for the Home Department [2026] EWCA Civ 370, the importance on making grounds of appeal clear from the outset was confirmed.
In this matter the Appellant, a woman from the Democratic Republic of Congo (DRC), appealed to the First-tier Tribunal (FtT) on various grounds, including on Articles 3 and 8 of the European Convention on Human Rights (ECHR). One specific argument under Article 3 was that she said that removal to the DRC would expose her to a real risk of a serious, rapid and irreversible decline in her health. This was as a result of there not being adequate medical care in the DRC. Her Article 8 arguments included that removal from the UK would be a disproportionate interference with her family life here.
The Appellant was unsuccessful before the FtT. She appeal to the Upper Tribunal, but her grounds of appeal had somewhat changed. She now argued, under Article 3, that the UK would be in breach of its obligations under the ECHR because she would be removed from her family in the UK that were caring for her. Elements of this argument had been presented before the FtT in her Article 8 submissions, but not under Article 3.
The Court of Appeal was methodical in drawing the distinction. They considered arguments under Article 3 relating to the absence of treatment in the DRC as distinct from arguments under Article 3 relating to separation from family in the UK. It was concluded by the Court of Appeal that the FtT’s task was to determine the principal controversial issues before it, that had been identified through the parties’ pleadings.
There were only two situations, the Court confirmed in paragraph 91, where the FtT could consider an unargued point. This was firstly where it does not understand an issue or is doubtful about it and secondly where the point is obvious, passing the test in the case of R (Robinson) v SSHD [1998] QB 929. For reference, the Robinson test would allow the court to consider an issue not expressly raised if it has strong prospects of success, is obvious under the Refugee Convention, and is necessary to avoid a breach of said convention.
The takeaway from this case is that parties must make explicitly clear the grounds on which they wish to make arguments, from the outset of their case. In particular, Appellants should be clear and forthcoming with their legal representatives from the start, to avoid unargued points occurring later in the proceedings, and counsel should be clear and comprehensive in their skeleton arguments submitted prior to hearings to ensure that all issues are covered.
This case is a reaffirmation that it is not the role of the FtT to “comb through the documents and the evidence in search of potential points for either party”. The parties must present their points, the tribunal will not do it for them. As Laing LJ said at paragraph 90, “The F-tT’s function is not inquisitorial.”
By : Cameron Dyer