EH (PTA: Ltd Grounds; Cart Jr) Bangladesh
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,Mr CMG Ockelton |
| Judgment Date | 28 April 2021 |
| Neutral Citation | [2021] UKUT 117 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2021] UKUT 117 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and Mr CMG Ockelton (Vice President)
Mr M Symes and Ms A Nizami instructed by Duncan Lewis Solicitors, for the Claimant;
Mr T Lindsay, Senior Home Office Presenting Officer, for the Secretary of State.
DL-H v Devon Partnership NHS Trust v Secretary of State for Justice [2010] UKUT 102 (AAC)
Ferrer (limited appeal grounds; Alvi) [2012] UKUT 304 (IAC)
JH (Palestinian Territories) v Upper Tribunal (Immigration and Asylum Chamber) and Secretary of State for the Home Department [2020] EWCA Civ 919; [2021] 1 WLR 455; [2020] INLR 532
R (on the application of Cart) v Upper Tribunal; R (on the application of MR (Prakistan)) v Upper Tribunal (Immigration and Asylum Chamber) and Secretary of State for the Home Department[2011] UKSC 28; [2012] 1 AC 663; [2011] 3 WLR 107; [2011] 4 All ER 127; [2011] Imm AR 704
Sarkar v Secretary of State for the Home Department [2014] EWCA Civ 195; [2014] Imm AR 911
Civil Procedure Rules 1998, rule 54.7A
European Convention on Human Rights, Article 8
Immigration, Asylum and Nationality Act 2006, section 47
Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, rules 33 & 34
Tribunal Procedure (Upper Tribunal) Rules 2008, rules 5, 21, 22 & 23
Tribunals, Courts and Enforcement Act 2007, sections 11 & 13
Procedure and process — permission to appeal grant of permission on limited grounds — Cart Judicial Review — Civil Procedure Rule 54.7A
The Claimant, a citizen of Bangladesh, was sentenced to life imprisonment for murdering his wife in the United Kingdom. He challenged the Secretary of State for the Home Department's decision to deport him, arguing that he was at real risk of serious harm if returned to Bangladesh. The Secretary of State refused the Claimant's protection claim and the First-tier Tribunal (“ITT”) dismissed his appeal on asylum and human rights grounds. The Claimant sought permission to appeal on seven grounds. The FtT refused permission and the Claimant renewed his application to the Upper Tribunal (“UT”) on each of the seven grounds. The UT's decision stated that the application for permission to appeal was “granted in respect of Grounds 4 and 7 only”.
On application for judicial review in the High Court, the Claimant sought an order quashing the UT's decision granting permission only on limited grounds, together with an order that permission to appeal to the UT be granted on the grounds which were refused. The High Court considered that Civil Procedure Rule (“CPR”) 54.7A applied to the case and found that the grounds advanced met the second appeals criteria in CPR 54.7A(7). The High Court noted that permission had been granted on some grounds, such that an appeal would be heard in any event, and it was unlikely that the additional grounds would significantly add to the time required for the appeal. On 15 February 2021, the High Court made an order, which stated: “the decision of the Upper Tribunal to refuse permission to appeal is quashed”.
On 25 February 2021, the UT directed that the case would be listed for a remote hearing and that the parties must, on that occasion, be prepared to make submissions on the effects of rules 22(2) and 5(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the 2008 Rules”) in this case and generally; on the effect of the Order of the High Court in this case, and on the further progress of the appeal. Following the hearing, the parties were given the opportunity to file and serve further written submissions on the question of whether it was possible or necessary to bring a “Cart”* judicial review challenge in the event of a partial or limited grant of permission by the UT.
Held, listing the appeal for hearing in the UT on all the advanced grounds:
(1) CPR 54.7A(1) stated in terms that the rule applied “following refusal by the Upper Tribunal of permission to appeal against the decision of the First-tier Tribunal”. In the instant case, the High Court was aware that permission to appeal had been granted by the UT. That fact was part of the Court's rationale for deciding that the second appeal criteria were satisfied, since an appeal would be heard in any event. That reasoning might be considered problematic, in that it would render the second appeal criteria in CPR 54.7A(7)(b) otiose, in all cases in which the judicial review challenge was to the rejection of some, but not all, of the grounds of appeal to the UT. That problem was, however, subsumed in the larger question of whether CPR 54.7A had any application at all where the UT had granted permission to appeal from the FtT. The legislature contemplated that the UT could respond to an application for permission to appeal from the FtT by: (i) giving permission; (ii) refusing permission; or (iii) refusing to admit a late application. In the case of certain permission applications, described in rule 22(3)(a), an appellant might apply for a decision taken without a hearing to be reconsidered at a hearing. Rule 22(4)(b) gave a right to reconsideration where the UT gave permission to appeal “on limited grounds or subject to conditions”. It was not possible to extrapolate from rule 22 any inference that the legislature contemplated that a limited grant of permission could be treated as a refusal of permission. Unlike the CPR, the 2008 Rules had Parliamentary authority (paras 13 – 15).
(2) Rule 34 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 required the FtT, if giving permission to appeal on limited grounds, to send notification of the right to apply to the UT for permission to appeal in relation to any grounds on which it had refused permission. That tied directly into rule 21(2)(b) of the 2008 Rules, which expressly contemplated an application for permission to appeal where the FtT had granted permission “only on limited grounds”. It could be argued that, since the “permission interface” between the FtT and the UT expressly catered for a means of challenging a limited grant of permission, an expansive reading of CPR 54.7A(1) was required, in which, despite the wording of rule 22 of the 2008 Rules, a judicial review might be brought in the High Court, where the UT had granted permission to appeal on limited grounds. It was noted that CPR 54.7A was introduced to give effect to the judgments in Cart, which itself concerned a limited grant of permission. There were, however, powerful arguments in favour of the opposite conclusion. The judgments in Cart showed the Supreme Court was anxious that judicial review of the UT's permission to appeal functions should be kept in narrow bounds. The wording of CPR 54.7A showed an appreciation of the fact that the right of challenge to a decision of the UT in this area was needed where that decision disposed of the appeal proceedings. A limited grant of permission did not dispose of the appeal proceedings. There was still an appeal to be decided by the UT, which (i) was not jurisdictionally circumscribed by the terms of the grant of permission; and (ii) was subject to onward rights of appeal under section 13 of the Tribunals. Courts and Enforcement Act 2007 (paras 16 – 19).
(3) Rule 22(2)(b) of the 2008 Rules had the effect that in the absence of any direction limiting the grounds which might be argued before the UT, the grounds contained in the application for permission were the grounds of appeal to the UT, even if permission was stated to have been granted on limited grounds. Rule 22(2)(b) had the complementary effect that any limitation on the grounds of appeal must be by direction and, as a direction, could be the subject of an application to amend, suspend or set aside that direction under rule 5(2) of the 2008 Rules. In the instant case, there was no such direction. The High Court was, therefore, being asked to adjudicate on a non-existent issue. There was no relevant jurisdictional fetter upon the UT's consideration of an appeal from the FtT: DL-H v Devon Partnership NHS Trust[2010] UKUT 102 (AAC) applied. The overall position in the UT was such that an appellant who had been subjected to a grant of permission on limited grounds did not, as a general matter, need to resort to the Administrative Court. That was so, even if there had been a direction of the kind contemplated by rule 22(2)(b): Sarkar v Secretary of State for the Home Department[2014] EWCA Civ 195 considered. The second reason why judicial review of a limited grant of permission by the UT was unnecessary was because a party who was dissatisfied with the way in which the UT had acted under its procedural powers to limit the scope of the appeal might apply for permission to appeal to the relevant appellate court against the resulting substantive decision (paras 20 – 25 and 29).
(4) Although the points made regarding the nature and scope of appeals in the UT applied equally where the UT was seized of an appeal following a limited grant for permission by the FtT, the fact that rule 21(2)(b) of the 2008 Rules provided expressly for a right of application for permission to appeal to the UT on that discrete basis might mean that, anomalously, a refusal by the UT to expand the limited grounds was to be treated as on all fours with an outright refusal of permission: JH (Palestinian Territories) v Upper Tribunal (Immigration and Asylum Chamber) and Secretary of State for the Home Department[2020] EWCA Civ 919 considered. JH did not mean, however, that the words “refusal … of permission to appeal” in CPR 54.7A must be generally read as including a grant of permission to appeal. When the UT granted permission to appeal, even on limited grounds, its decision was not amenable to judicial review under the Cart procedure, which, as specifically indicated by CPR 54.7A, was...
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