Judicial Review: How Much is Too Much? A View of Eba, Cart and MR (Pakistan) from the Asylum and Immigration Perspective

AuthorSarah Craig
Published date01 May 2012
Date01 May 2012

In Eba, Cart and MR (Pakistan),1

Eba v Advocate General for Scotland [2011] UKSC 29, [2011] 3 WLR 149; R (Cart) v Upper Tribunal [2011] UKSC 28, [2011] 3 WLR 107. All subsequent references to Cart or Eba are to these decisions unless otherwise indicated.

the Supreme Court decided what would happen when individuals want to pursue appeals against tribunal decisions after the appeal routes in the Tribunals, Courts and Enforcement Act 2007 (TCEA) have run out. Previously, administrative tribunals had been answerable to the higher courts through judicial review and/or statutory review in these circumstances. When the TCEA established a unified structure embracing the broad range of tribunals whose primary function is the resolution of disputes between individuals and the state, it also augmented tribunals' status as adjudicative bodies, but it did not say what impact the new structure would have on judicial review

In these three cases, the Supreme Court confirmed that judicial review of unappealable decisions of the Upper Tribunal was still available. Excluding the Upper Tribunal from the supervision of the higher courts would have diminished the rule of law which is the basis on which judicial review rests.2

Eba at para 8.

But by confirming the continuing availability of judicial review, the Court threatened to undermine the autonomy of the new tribunal structure as well as the augmented status conferred on the Upper Tribunal. The Supreme Court therefore acknowledged that status by restricting the courts' supervision to those Upper Tribunal errors which raise “an important point of principle or practice” or where “some other compelling reason” demands the court's intervention. To some extent, these criteria fill a gap in the statute and unite the views of the English and Scottish courts in a common approach. But the new criteria apply to judicial reviews of Upper Tribunal decisions right across the broad range of sectors encompassed by the TCEA, from the financial interests involved in tax and planning disputes to the fundamental rights issues arising in immigration and asylum cases In this diverse context, a common interpretation of the scope for review cannot be expected to emerge quickly. The cases also illustrate how UK asylum policy has restricted the availability of legal remedies

Before expanding on the different perspectives, this paper outlines how the three cases arrived at the Supreme Court.


The Upper Tribunal refused Mr Cart permission to pursue an appeal based partly on the Child Support Agency's failure to tell him that his child maintenance payments had changed. In December 2009, the Divisional Court had to decide whether, post-TCEA, Mr Cart could still judicially review the Upper Tribunal.3

R (Cart) v Upper Tribunal [2009] EWHC 3052 (Admin), [2010] 2 WLR 1012.

The TCEA brought together the previously disparate tribunal jurisdictions into a unified structure made up of a First Tier Tribunal and an Upper Tribunal. Within this structure tribunals were organised into six chambers, and child support appeals came before the Social Entitlement Chamber. The TCEA also established common routes of appeal across the jurisdictions.4

Tribunals, Courts and Enforcement Act 2007 s11(5).

The judicial review function conferred on the Upper Tribunal,5

ss 15, 16, 17 and 20.

and its designation as a superior court of record6

s 3(5).

implied that the unified structure insulated the Upper Tribunal against judicial review, but the position was not clear. Laws LJ held that, while the Upper Tribunal was an alter ego of the High Court, judicial review would still be available in exceptional circumstances.7

R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738, [2003] 1 WLR 475.

In July 2010, while the Court of Appeal could not describe the Upper Tribunal as the High Court's alter ego,8

R (Cart) v Upper Tribunal [2011] QB 120 at para 20 per Sedley LJ.

it agreed with Laws LJ that judicial review of the Upper Tribunal was only available exceptionally, such as where there had been “ ‘outright excess of jurisdiction’ or ‘denial by it of fundamental justice’ ”.9

The tribunals structure was designed so that errors could be corrected within rather than outside it and this justified returning to pre-Anisminic distinctions (Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147), between errors within jurisdiction and errors beyond jurisdiction. Only the latter were reviewable: Cart [2011] QB 120 at para 36–38 per Sedley LJ.


Meanwhile, Mrs Eba's judicial review arose from the Upper Tribunal's refusal to allow her to pursue an appeal regarding her Disability Living Allowance claim and, in March 2010, the Outer House dismissed it because her case was not exceptional.10

Eba v Advocate General [2010] CSOH 45, 2010 SLT 547.

But in September 2010 the Inner House disagreed, deciding that as the TCEA did not expressly circumscribe the scope for review, it was unlimited.11

Eba v Advocate General [2010] CSIH 78, 2011 SC 70.

The Inner House observed that, in certain cases, the High Court could set the parameters of judicial review in England and Wales according to the appropriateness of exercising such review.12

At paras 50–51 citing R v Cripps ex p Muldoon [1984] QB 68 at 87 per Goff LJ.

Leave was required from the English courts in order to pursue a judicial review, and this requirement might reflect a discretionary element to the supervisory jurisdiction in England and Wales, which did not exist in Scotland.13

At paras 53–54.

The English courts appeared to have the power to delineate on policy (or discretionary) grounds some of the circumstances in which the High Court would entertain judicial review.14

At para 60.

As to the grounds on which an action could be based, Chris Himsworth noted succinctly that ‘the English courts might narrow the grounds for review on policy grounds, but the Court of Session could not’.15

C Himsworth, “The Upper Tribunal in the higher courts” (2011) 15 Edin LR 92.

<italic>MR (Pakistan)</italic>

MR's application for judicial review arose from the Upper Tribunal's refusal to allow him to pursue an asylum appeal based on his conversion to Christianity. The appeal rights of Mr Cart and Mrs Eba had already run out before he applied for asylum, but his case was permitted to leapfrog the Court of Appeal. It was an important addition firstly because immigration and asylum, together with social security, make up the great bulk of the business of the new tribunals system.16

Cart at para 9 per Baroness Hale.

Secondly, asylum provides the context for the policy motivations which underly the measures restricting judicial review, since they rely heavily on the perception that the higher courts risk inundation if access to them in asylum cases is not restricted.17

Cart at para 124 per Lord Dyson and at para 85 per Lord Phillips; Transforming Public Services: Complaints, Redress and Tribunals (Cmnd 6243: 2004) para 7.28; UK Border Agency, Consultation: Immigration Appeals, Fair Decisions, Faster Justice (2008) paras 6–11.

As explained further below, those policy motivations also explain why MR (Pakistan) was added to the proceedings at a late stage. The Immigration and Asylum Chamber was belatedly brought into the unified system18

The Tribunals Service was launched on the 3rd November 2008 and the Immigration and Asylum Chamber was established on the 15th February 2010.

to replace the previous single tier appeals structure.19

Transforming Public Services (n 17) para 7.18.

THE SUPREME COURT Why is review needed?

Baroness Hale explains why the post-TCEA tribunals structure still requires review. Diverse types of tribunal emerged in the twentieth century, tailored to the subject matters they deal with, and the range of specialist areas of law on which they adjudicate. But the independence of tribunals became problematic: while their sponsoring departments would regard them as appropriately expert and independent, and designed to ensure that citizens got the benefits they were entitled to, others might see tribunals as “accomplices” with the department in denying the entitlements of claimants.20

Cart at para 14 per Baroness Hale.

The view that tribunals were too close to their sponsoring departments could be countered by judicial review, as it provided an independent and authoritative source for the correction of legal errors in tribunals' decision-making, which also left to the tribunal the task of hearing the case again.21

At para 17 per Baroness Hale.

The system improved as a result of the Franks Report's insistence on openness and accountability to the higher courts.22

At para 15 per Baroness Hale. See Report of the Committee on Administrative Tribunals and Inquiries (Cmnd 218: 1957).

The introduction of a presidential structure, headed by a High Court judge, further enhanced their independence, before the transfer of the administration of tribunals to the Ministry of Justice. The TCEA then provided the “final solution” of an integrated tribunals structure,23

Cart at para 15 per Baroness Hale.

but this structure, although integrated, is less coherent and less of a radical departure than it first appears, because of the diversity of the tribunal jurisdictions encompassed by it.24

At paras 23 and 54 per Baroness Hale.

Judicial review is still required because the chances of tribunals themselves giving leave to approach the higher courts are remote. The Upper Tribunal, as a superior court of record, sets precedent for the First Tier and Upper Tribunals to follow, and so they will refuse permission to appeal. From the tribunals' perspective, the chances of the higher courts overturning the Upper Tribunal will also appear remote – especially where the courts have set the precedent – and there is no other route by which the question will reach them. High Court judges may sit in the Upper Tribunal, but they will not be responsible for all decisions...

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