Osefiso and Another (PTA Decision: Effect; ‘Cart’ JR)
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,Mr CMG Ockelton |
| Judgment Date | 16 April 2021 |
| Neutral Citation | [2021] UKUT 116 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2021] UKUT 116 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and Mr CMG Ockelton (Vice President)
Mr F Magennis and Mr R Sharma instructed by David Benson Solicitors, for the Claimants;
Mr T Lindsay, Senior Home Office Presenting Officer, for the Secretary of State.
Bulale v Secretary of State for the Home Department [2008] EWCA Civ 806; [2009] QB 536; [2009] 2 WLR 992; [2008] 3 CMLR 24; [2009] Imm AR 102
JH (Zimbabwe) v Secretary of State for the Home Department; R (on the application of JH (Zimbabwe)) v Asylum and Immigration Tribunal and Secretary of State for the Home Department[2009] EWCA Civ 78; [2009] Imm AR 499; [2009] INLR 385
Jan (Upper Tribunal: set-aside powers) [2016] UKUT 336 (IAC); [2016] Imm AR 1437
MA (Cart JR: effect on UT processes) Pakistan [2019] UKUT 353 (IAC)
Patel and Others v Secretary of State for the Home Department [2015] EWCA Civ 1175; [2016] Imm AR 444; [2016] INLR 289
R v Secretary of State for the Home Department and Immigration Appeals Tribunal ex parte Robinson [1997] EWCA Civ 3090; [1998] QB 929; [1997] 3 WLR 1162; [1997] 4 All ER 210; [1997] Imm AR 568; [1997] INLR 182
R (on the application of Begum) v Social Security Commissioners [2002] EWHC 401 (Admin)
R (on the application of Cart) v Upper Tribunal; R (on the application of MR (Pakistan)) 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
Civil Procedure Rules, rule 54.7A
European Convention on Human Rights, Article 8
Immigration Act 1971, section 3C
Immigration Rules HC 395 (as amended), paragraph 276ADE(1)(vi)
Nationality, Immigration and Asylum Act 2002, section 104
Tribunals, Courts and Enforcement Act 2007, sections 10(1) & 11
Jurisdiction — Immigration and Asylum Chamber — Upper Tribunal — refusal of permission to appeal disposes of proceedings — procedure and process permission to appeal — refusal of PTA effect — ‘Cart’ judicial review — CPR 54. 7A judicial review grounds different from appeal grounds
The Claimants were citizens of Nigeria. The first Claimant arrived in the United Kingdom in 2002 with entry clearance as a visitor. In 2015 she gave birth in the United Kingdom to the second Claimant and was granted leave to remain on the basis of her private life, valid after extension until February 2018. The Claimants made human rights claims in January 2018. The Secretary of State for the Home Department refused the claims under paragraph 276ADE(1)(vi) of the Immigration Rules HC 395 (as amended) on the grounds that the Claimants would not face very significant obstacles to their integration into Nigeria. The Secretary of State also considered that there were no exceptional circumstances to justify the grant of leave outside the Rules.
The First-tier Tribunal (“FtT”) dismissed the Claimants' appeal against that decision in August 2019. The Claimants applied for permission to appeal on the grounds that the FtT Judge had erred in law by first, failing to consider that the first Claimant's private life “would not remain stagnant”: secondly, failing to recognise that her qualification as a registered nurse constituted an important public interest; and thirdly, in making factual errors regarding the financial support she might receive from her mother. The FtT refused the Claimants permission to appeal in November 2019. The Claimants made a renewed application for permission to appeal to the Upper Tribunal (“UT”), emphasising the alleged factual errors made by the FtT Judge. On 6 January 2020, the UT refused permission to appeal, noting that the grounds were “unarguable” and that the conclusions reached by the FtT Judge were open to her on the evidence presented.
The Claimants sought judicial review of the UT's decision. The grounds of the judicial review application, which were advanced by a new legal representative, did not form any part of the grounds accompanying the applications for permission to appeal to the FtT or the UT. In particular the grounds for judicial review alleged that the FtT Judge had misdirected herself as regards the test to be satisfied in paragraph 276ADE(1)(vi) of the Rules, describing the test in terms of “insurmountable obstacles” instead of “very significant obstacles to” integration, and failed to take as her starting point the previous grants of leave to the first Claimant on private life grounds.
On 30 January 2020, over three weeks after the UT refused permission to appeal, a document purporting to be an application for permission to appeal was sent to the UT, together with grounds. The grounds which accompanied the application were, in fact, headed “PARTICULARS OF CLAIM JUDICIAL REVIEW”. A comparison of that document and the judicial review grounds showed that the substance of the challenge now being made was the same in each case; namely, the alleged application of an incorrect test for the purposes of paragraph 276ADE(1)(vi) of the Rules; and the alleged failure of the FtT Judge to take as her starting point the previous grants of leave to the first Claimant on private life grounds.
Following a hearing in April 2020, the High Court granted the Claimants permission to bring judicial review, concluding that the FtT Judge appeared to apply the wrong test under the relevant Rule and arguably did not adequately weigh the factors which might render the Claimants' expulsion disproportionate. The High Court identified important points of principle or practice for the purposes of rule 54.7A of the Civil Procedure Rules (“CPR”) to be considered by the UT “subject to the claimants' application to amend their grounds of appeal”.
Held, allowing the appeals and remitting the matter to the FtT:
(1) The “Cart” judicial review jurisdiction for which provision was made in rule 54.7A of the CPR should not be treated by parties as merely an untrammelled third opportunity to raise grounds of challenge to a decision of the FtT, which had found no expression in the grounds put to the FtT and, then, the UT: MA (Cart JR: effect on UT processes) Pakistan[2019] UKUT 353 (IAC) applied. In enacting section 11 of the Tribunals. Courts and Enforcement Act 2007 (“the 2007 Act”). Parliament had provided for there to be a renewed application to the UT, following a refusal by the FtT. That renewed application was not constrained by whatever grounds had been put to the FtT. The “Cart” judicial review was, however, of a fundamentally different character. In order to satisfy the part of rule 54.7A(7)(a) of the CPR which required the High Court to find an arguable case that the UT's refusal of permission to appeal was wrong in law, the court needed to be satisfied either that: (a) the UT's reaction to the grounds of challenge in the application for permission to appeal was arguably wrong in law; or (b) where the judicial review grounds had not found expression in the grounds considered by the UT, the judicial review grounds were of such a nature as to have required the UT to have raised them of its own volition, and then considered them: and that its failure to do so was arguably wrong in law (para 22).
(2) It was perfectly clear that the grounds accompanying the application made on 30 January 2020 were fundamentally different from those put to, and refused by, the UT. The important point, however, was that those acting for the Claimants at that stage of the proceedings did in fact recognise the difficulty the Claimants laced in bringing a “Cart” judicial review, whose grounds of challenge had not previously been put to the UT. A decision was, therefore, taken to attempt to put the newly formulated grounds before the UT in the form of an application for permission to appeal. The fundamental problem with that course of action was that such an application had already been made by the Claimants' previous representatives. That application had been decided by the UT on 6 January 2020, when it refused permission to appeal. That refusal was, unarguably, a decision that disposed of the proceedings in the UT. Once a decision on permission to appeal had been taken by the UT, that tribunal had no power to review a decision under section 11 of the 2007 Act: Patel and Others v Secretary of State for the Home Department[2015] EWCA Civ 1175 applied (paras 23 – 25).
(3) Patel presented a serious difficulty for the Claimants. It would clearly make a mockery of section 10(1) of the 2007 Act if a party could evade the restriction on review of a refusal of permission merely by making another application for permission. The only way in which a decision that disposed of proceedings could be revisited by the UT was under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008: Jan (Upper Tribunal: set-aside powers)[2016] UKUT 336 (IAC) applied. Rule 43 enabled the UT to set aside such a decision if it was in the interests of justice to do so and there had been some procedural irregularity in the proceedings. There was no question of there being such an irregularity in the instant case. Furthermore if, as the Claimants submitted, the UT did have jurisdiction to consider the so-called application made on 30 January, the consequences would be profound. Section 104 of the Nationality, Immigration and Asylum Act 2002 provided, inter alia, that an appeal was pending during the period beginning when it was instituted and ending when it was finally determined. Section 104(2) provided that an appeal was not finally determined while, inter alia, an application for permission to appeal under section 11 of the 2007 Act could be made or was awaiting determination. If the Claimants were right, there would be nothing to prevent an appellant from tiling an...
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