R Rana v Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SULLIVAN |
| Judgment Date | 21 December 2010 |
| Neutral Citation | [2010] EWHC 3558 (Admin) |
| Docket Number | CO/7142/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 December 2010 |
[2010] EWHC 3558 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Lord Justice Sullivan
CO/7142/2010
Mr Eadie QC, Mr Grodzinski and Mr Pritchard appeared on behalf of the Defendant
Mr Gill QC and Miss Manyarara appeared on behalf of the Claimant
(As Approved)
Introduction
Is a decision of a judge of the Upper Tribunal (Immigration and Asylum Chamber) refusing permission to appeal against a decision of the First-tier Tribunal (Immigration and Asylum Chamber) amenable to judicial review on any ground or grounds other than (a) outright excess of jurisdiction, or (b) denial of procedural justice, as those two grounds were described by the Court of Appeal in R (On the application of Cart) v the Upper Tribunal and others [2010] 4 All ER 714, [2010] EWCA Civ 859 (" Cart"), and, if so, on what other ground or grounds. That is the preliminary issue which has to be determined in this application for judicial review.
Facts
For the purpose of determining that preliminary issue a brief summary of the factual background will suffice. The claimant is a national of Pakistan who last entered the United Kingdom as a visitor in June 2007. In March 2010 he claimed asylum on the basis that he had converted to Christianity and would be at risk of persecution if he returned to Pakistan. The Secretary of State did not accept that the claimant was a genuine convert to Christianity, nor did Immigration Judge Blandy of the First-tier Tribunal (Immigration and Asylum Chamber), who dismissed his appeal in a determination promulgated on 30 April 2010.
The claimant's application to the First-tier Tribunal for permission to appeal was refused by Senior Immigration Judge Chalkley on 5 May 2010.
The claimant sought permission to appeal from the Upper Tribunal and his application was refused by the Ouseley J sitting as a judge of the Upper Tribunal on 10 May 2010. In the notice of decision Ouseley J said:
"It is unnecessary to hold an oral hearing of the application for permission to appeal because I consider that it can properly be dealt with on the papers.
Permission to appeal is refused.
Reasons (including any decision on extending time)
Crucial to the decision was the finding that the applicant was not a genuine convert to Christianity. The question of how a genuine convert would be treated did not arise. The finding that the pre-baptism course and the act of baptism itself took place, and there was some knowledge of aspects of Christianity does not undermine or prevent at all the reasonable conclusion on the evidence that the conversion was not genuine."
The claimant applied for permission to apply for judicial review on 24 June 2010. His Honour Judge Nicholas Cooke QC granted permission to apply for judicial review on 4 August 2010 saying that it was arguable that the decision to reject the genuineness of the claimant's conversion may have been the product of adopting too high a standard of proof and that there had been an arguable failure to consider the risk arising from the claimant's baptism. When granting permission to apply for judicial review the judge did not specifically address the point that had been raised in the Secretary of State for the Home Department's summary grounds, that permission should be refused because decisions of the Upper Tribunal to refuse permission to appeal could be challenged by way of judicial review only on the very restricted grounds set out by the Court of Appeal in its judgment in Cart which had been handed down on 23 July 2010.
The Court of Appeal's decision in Cart
In Cart the Court of Appeal (Sedley, Richards LLJ and Sir Scott Baker) upheld, albeit for somewhat different reasons, the decision of the Divisional Court (Laws LJ and Owen J) on the 1 December 2009, [2009] EWHC 3052 Admin, that decisions of the Upper Tribunal refusing permission to appeal from the First-tier Tribunal were amenable to judicial review but the grounds on which they were amenable to judicial review were limited to what the Court of Appeal described as (a) "outright excess of jurisdiction" (pre- Anisminic jurisdictional error) and (b) "denial of procedural justice" (denial of the right to a fair hearing): see paragraphs 4 and 5 of the judgment of the court delivered by Sedley LJ.
In Cart the court was concerned with a decision of an Upper Tribunal Judge sitting in the Administrative Appeals Chamber in respect of an application for permission to appeal from a decision of the FTT (Social Entitlement Chamber). Prior to the creation of the new tribunal system by the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act" or "TCEA") such an application for permission to appeal would have been determined by a Social Services Commissioner. A decision by a commissioner to refuse permission to appeal had been amenable to challenge on conventional judicial review grounds. In paragraph 31 of the judgment the Court of Appeal said:
"What then of Mr Drabble's contention that social security is a special class of case which has historically, and beneficially, been subject to such review notwithstanding the high legal expertise of the Commissioners, and for that reason should continue to be so? We accept the premise but not the conclusion. One of the principal purposes of TCEA is to unify the procedures of the disparate tribunals gathered into its structure. It contains no space for historical exemptions of the kind Mr Drabble seeks to establish. We put it this way because we are mindful that in Sivasubramaniam this court acknowledged an exception, based on the uniqueness of the subject-matter, in relation to judicial review of asylum decisions. Whether that will continue to be so in the light of what is decided in the present case both here and in Scotland is not for us to predict."
Whether the continuation of the exception acknowledged in R (On the application of Sivasubramaniam) v Wandsworth County Court [2003] 1 WLR 475, [2002] EWCACiv 1738 ("Siva") is consistent with the Court of Appeal's reasoning in Cart is the issue for decision in this case.
In siva the Court of Appeal decided that a decision of a circuit judge to grant or refuse permission to appeal from a decision of a district judge could be challenged by way of judicial review but it could be so challenged only in those very rare cases where the challenge was on the grounds of jurisdictional error in the narrow pre- Anisminic sense, or procedural irregularity of such a kind as to constitute a denial of the applicant's right to a fair hearing: see paragraph 56.
The court was satisfied that the regime introduced under section 54 of the Access to Justice Act 1999 ("the 1999 Act") and the Civil Procedure Rules made thereunder provided the litigant with "fair, adequate and proportionate protection against the risk that the judge of the lower court may have acted without jurisdiction or fallen into error". The Administrative Court should summarily in the exercise of its discretion refuse applications for permission to apply for judicial review in such cases because:
"Parliament has put in place an adequate system for reviewing the merits of decision made by district judges and it is not appropriate that there should be further review of these by the High Court. This, we believe, reflects the intention of Parliament when enacting section 54(4) of the Act." (paragraph 54)
In reaching that conclusion the court recognised that permission to claim judicial review was regularly granted in respect of refusals of permission to appeal by the Immigration Appeal Tribunal ("IAT"). In paragraphs 51 and 52 the court described the anomaly and the justification for it:
"51. On the face of it, judicial review of such a decision might seem anomalous. In Robinson v Secretary of State for the Home Department [1997] Imm AR 568 the Court of Appeal declined to give general guidance to the Tribunal as to the criteria that it should apply when deciding whether to give leave to appeal. The court did, however, indicate that a higher hurdle than mere arguability had to be crossed. If the Tribunal errs in its evaluation of the prospects of success of an appeal as a result of an error of law which is apparent from its reasons, permission to claim judicial review may be granted. In reality, the application for permission to claim judicial review comes close to being a renewed application for permission to appeal to the Tribunal. The Tribunal has the qualities of a court – certainly to the extent of satisfying the requirements of Article 6 of the European Convention on Human Rights. If judicial review of refusal of permission to appeal by the Tribunal is appropriate, is there any basis on which it can be ruled out of court where the challenge is to the refusal of permission to appeal by a Judge of the County Court?
52. There are, in our judgment, special factors which fully justify the practice of entertaining applications for permission to claim judicial review of refusals of leave to appeal by the Tribunal. In asylum cases, and most cases are asylum cases, fundamental human rights are in play, often including the right to life and the right not to be subjected to torture. The number of applications for asylum is enormous, the pressure on the Tribunals immense and the consequences of error considerable. The most anxious scrutiny of individual cases is called for and review by a High Court Judge is a reasonable, if not an essential,...
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