The King on the Application of LA (Albania) v The Upper Tribunal (Immigration & Asylum Chamber)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Lord Justice Lewis,Lord Justice Underhill |
| Judgment Date | 16 November 2023 |
| Neutral Citation | [2023] EWCA Civ 1337 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-001543 |
and
[2023] EWCA Civ 1337
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Dingemans
and
Lord Justice Lewis
Case No: CA-2023-001543
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
KING'S BENCH DIVISION,
ADMINISTRATIVE COURT
Sir Duncan Ouseley
CO/1307/2023
Royal Courts of Justice
Strand, London, WC2A 2LL
Benjamin Hawkin (instructed by TNA Solicitors) for the Appellant
The Respondent did not appear and was not represented
Jennifer Thelen (instructed by the Government Legal Department) for the Interested Party
Hearing date: 16 October 2023
Approved Judgment
This judgment was handed down remotely at 14.00 hrs on 16.11.23 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This application for permission to appeal against the refusal to grant permission to apply for judicial review of a decision of the Upper Tribunal raises questions about: the effect of section 11A of the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act) on the exercise of the supervisory jurisdiction of the High Court; and whether the decision of the High Court in R(Oceana) v Upper Tribunal [2023] EWHC 791 (Admin) ( Oceana) was correctly decided.
There was a hearing of the application on 16 October 2023. At the conclusion of the hearing Lord Justice Underhill, Vice-President of the Court of Appeal, Civil Division, announced that the application would be dismissed because the Court of Appeal did not have jurisdiction to hear the proposed appeal. This judgment sets out the reasons for that decision.
Relevant background
The applicant Ms LA is a citizen of Albania. She entered the United Kingdom on the back of a lorry on 7 November 2018. She made a prompt claim for asylum on 8 November 2018. This was on the basis that she feared persecution in Albania because she was a lesbian Muslim. On 10 November 2018 the Secretary of State carried out a Screening Interview. Ms LA submitted a Preliminary Information Questionnaire and a witness statement in support of her asylum and human rights claim on 6 March 2019. Ms LA attended a full Asylum Interview on 2 May 2019. On 28 May 2019 the Secretary of State made a decision to refuse Ms LA's protection and human rights claim, and to certify it as clearly unfounded.
Ms LA applied for permission to apply for judicial review of that decision. Ms LA was granted permission to apply for judicial review, and the Secretary of State agreed to reconsider the decision. This led to the decision by the Secretary of State on 4 March 2020 refusing to grant Ms LA asylum, humanitarian protection or leave to remain in the United Kingdom on human rights grounds, but giving an in country right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber) (FTT).
Ms LA did not appeal against the decision at that time. On 21 May 2021 Ms LA was detained and issued with removal directions. Ms LA retained new solicitors who obtained a medical report, concluding that Ms LA suffered from PTSD and depression.
On 28 September 2021 Ms LA appealed to the FTT and applied for an extension of time to do so on the bases that: she had misunderstood that she could not appeal in March 2020 because of the COVID-19 pandemic; and she had medical issues. The FTT granted an extension of time. By letter dated 20 December 2021 the Secretary of State maintained and supplemented the decision dated 4 March 2020.
By a decision dated 12 October 2022 the FTT (Judge Athwal) dismissed Ms LA's appeal against the Secretary of State's decision. The FTT Judge accepted that Ms LA was a lesbian and had been threatened by her girlfriend's family. In paragraph 63 of the FTT's decision Judge Athwal said: “She continued the relationship after her partner's family discovered the relationship and threatened her. She remained in Albania for a significant period of time after the relationship ended. These facts do not demonstrate that the Appellant was at risk of persecution or faced a real risk of serious harm in Albania.” Ms LA's protection and human rights claims were dismissed. Ms LA contends that her appeal should have succeeded and that the decision of the FTT was vitiated by errors of law.
Ms LA applied for permission to appeal the decision of the FTT but was refused permission to appeal on 20 December 2022 by the FTT (Judge Evans). Ms LA applied to the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal) for permission to appeal the decision of the FTT dated 12 October 2022. On 22 March 2023 the Upper Tribunal (Upper Tribunal Judge Sheridan) refused permission to appeal.
The application for permission to appeal to this Court is against the written decision of Sir Duncan Ouseley, sitting as a judge of the High Court, dated 29 June 2023. Sir Duncan Ouseley had refused Ms LA permission to apply for judicial review of the decision of the respondent Upper Tribunal dated 22 March 2023, on the basis that the High Court did not have jurisdiction. This was because it was hopeless to contend that section 11A of the 2007 Act was not effective to restrict the scope of judicial review of Upper Tribunal decisions, and because none of the exceptions set out in section 11A of the 2007 Act applied. Sir Duncan Ouseley also stated in paragraph 2 of his reasons that he doubted that permission to apply for judicial review would have been granted under the Cart test.
Ms LA sought permission to appeal to the Court of Appeal. A direction was made that there should be an oral hearing of the application for permission to appeal. This enabled the Court to determine whether it had jurisdiction to hear the appeal and whether Oceana was rightly decided.
The issues on the application
Mr Benjamin Hawkin appeared on behalf of Ms LA and Ms Jennifer Thelen appeared on behalf of the Secretary of State. It was apparent from the written and oral submissions that the following issues arose: (1) whether the wording of section 11A is effective to limit the grounds on which the High Court may exercise its supervisory jurisdiction over a decision by Upper Tribunal to refuse a party permission to appeal from a decision of the FTT; (2) if the wording of section 11A is effective, what test should be applied by the Court in determining whether a claim does fall within the exceptions set out in section 11A; (3) if the wording is effective, whether Ms LA's claim for judicial review fell within the exceptions set out in section 11A.
Ms Thelen on behalf of the Secretary of State raised a preliminary issue in writing about whether the High Court, having decided that it did not have jurisdiction to hear the application, should have permitted Ms LA to have a renewed oral hearing of the application for permission to apply for judicial review and whether the Court of Appeal could hear this application in the absence of a renewed oral hearing. I am very grateful to Mr Hawkin and Ms Thelen for their helpful written and oral submissions.
Judicial review of a decision of the Upper Tribunal
It is necessary to set out a bit of background to the enactment of section 11A of the 2007 Act, and address the decision dated 22 June 2011 of the Supreme Court in R(Cart) v Upper Tribunal [2011] UKSC 28; [2012] 1 AC 663 ( Cart). The Upper Tribunal was designated as a “superior court of record” by section 3(5) of the 2007 Act. It had been submitted on behalf of the Secretary of State to the Divisional Court in Cart (heard in September and October 2009) that the effect of that designation of the Upper Tribunal in the 2007 Act as a superior court of record was to exclude the supervisory jurisdiction of the High Court. In a judgment dated 1 December 2009 Laws LJ rejected that submission and held that such a designation was incapable of excluding the supervisory jurisdiction of the High Court by means of judicial review. Laws LJ went on to hold that as the Upper Tribunal was for relevant purposes an “alter ego of the High Court” judicial review would only extend to the Upper Tribunal in a case that was beyond its statutory remit or where there had been a wholly exceptional collapse of fair procedure, see paragraphs 94–100 [2009] EWHC 3052 (Admin); [2011] QB 120.
In the Court of Appeal in Cart [2010] EWCA Civ 859; [2011] QB 120 Sedley LJ, giving the judgment of the Court, came to the same conclusion as Laws LJ in the Divisional Court, but by a different route, see paragraphs 36–37. Sedley LJ held that all courts other than the High Court, including the Upper Tribunal, were amenable to judicial review, but that the scope of judicial review of a body such as the Upper Tribunal was limited to outright excess of jurisdiction by the Upper Tribunal and denial of fundamental justice. This was because the 2007 Act required the Tribunal system to be autonomous but Parliament could not have authorised the Upper Tribunal to act in outright excess of jurisdiction or denial of fundamental justice.
This approach to the scope of judicial review was described by Baroness Hale in the Supreme Court in Cart as the “pre- Anisminic excess of jurisdiction and the denial of fundamental justice” test. It is only necessary for the purposes of this judgment to record that in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 the House of Lords had held that an ouster clause was ineffective to prevent a judicial review of the Compensation Commission's error of law in taking into account a subsequent sale of the company when assessing what compensation was due. Anisminic was later interpreted to mean that any error of law meant...
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