The King (on the application of MD Ayaz Karim) v Upper Tribunal (Immigration and Asylum Chamber)

Hearing date: 16.5.24

Draft judgment: 23.5.24

Approved Judgment

Introduction

This case is about the procedural implications of a statutory ouster of judicial review. It features a basic distinction between: (1) a what question (what does a judicial review claimant have to demonstrate in order to succeed); and (2) a who question (which judge or judges have the function of dealing with the case). The judicial review claim seeks to impugn an Upper Tribunal (UT) decision refusing permission to appeal from a decision of the First Tier Tribunal (FTT). The statutory right of appeal to the UT from the FTT is governed by s.11 of the Tribunals, Courts and Enforcement Act 2007. The bundle of authorities included this trilogy of recent cases: R (Oceana) v Upper Tribunal [2023] EWHC 791 (Admin) [2023] Imm AR 4; R (LA (Albania)) v Upper Tribunal [2023] EWCA Civ 1337 [2024] 1 WLR 1673; and Sooy v SSHD [2023] CSOH 93 2024 SLT 1. I am grateful to both Counsel for their written and oral submissions.

LA (Albania) §29

The judgment of Dingemans LJ in LA (Albania) says this (§29):

In my judgment the objection made on behalf of the Secretary of State is not sustainable, and it is only fair to acknowledge that Ms Thelen did not pursue the objection in the oral submissions before the court. In his written reasons Sir Duncan Ouseley identified that the High Court did not have jurisdiction to hear the application for judicial review of the decision of the Upper Tribunal, because none of the exceptions set out in section 11A of the 2007 Act applied. If that conclusion was right, then the High Court was right to dismiss Ms LA's request to have a renewed hearing of the application for permission to apply for judicial review. This was because it did not have jurisdiction to hear the application for permission to apply for judicial review. This explains why CPR r 52.8(2) remains in the same terms. This is because, following the introduction of section 11A of the 2007 Act, if permission to apply for judicial review of a decision of the Upper Tribunal has been refused, the High Court will not have had jurisdiction to have an oral hearing of the renewed application for permission to apply for judicial review. The applicant may seek permission to appeal that conclusion from the Court of Appeal, as Ms LA has done here .

To cut to the chase, my conclusion is that this passage governs the jurisdictional question in the present case: see §§14–15 below.

The Rules

There are three relevant rules. First, CPR 54.7A which provides as follows:

54.7A.—Judicial review of decisions of the Upper Tribunal. (1) Where the Upper Tribunal has refused permission to appeal against a decision of the First-tier Tribunal, no application for judicial review of the Upper Tribunal's decision, or which relates to the First-tier Tribunal's decision, may be made except where the question in the judicial review application is— (a) whether the application for permission to appeal was validly made to the Upper Tribunal; (b) whether the Upper Tribunal when refusing permission to appeal was properly constituted; or (c) whether the Upper Tribunal is acting or has acted in bad faith or in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice (2) The claim form and the supporting documents must be filed no later than 16 days after the date on which notice of the Upper Tribunal's decision was sent to the applicant .

Secondly, CPR 54.12 which provides as follows:

54.12. Permission decision without a hearing. (1) This rule applies where the court, without a hearing — (a) refuses permission to proceed; or (b) gives permission to proceed — (i) subject to conditions; or (ii) on certain grounds only. (2) The court will serve its reasons for making the decision when it serves the order giving or refusing permission in accordance with rule 54.11. (3) Subject to paragraph (7), the claimant may not appeal but may request the decision to be reconsidered at a hearing. (4) A request under paragraph (3) must be filed within 7 days after service of the reasons under paragraph (2). (5) The claimant, defendant and any other person who has filed an acknowledgment of service will be given at least 2 days' notice of the hearing date. (6) The court may give directions requiring the proceedings to be heard by a Divisional Court. (7) Where the court refuses permission to proceed and records the fact that the application is totally without merit in accordance with rule 23.12, the claimant may not request that decision to be reconsidered at a hearing .

Thirdly, CPR 52.8 which provides as follows:

52.8. Judicial review appeals from the High Court. (1) Where permission to apply for judicial review has been refused at a hearing in the High Court, an application for permission to appeal may be made to the Court of Appeal except where precluded by section 18(1)(a) of the Senior Courts Act 198. (2) Where permission to apply for judicial review of a decision of the Upper Tribunal has been refused by the High Court on the papers or where permission to apply for judicial review has been refused on the papers and recorded as being totally without merit in accordance with rule 23.12, an application for permission to appeal may be made to the Court of Appeal. (3) An application under paragraph (1) must be made within 7 days of the decision of the High Court to refuse to give permission to apply for judicial review. (4) An application under paragraph (2) must be made within 7 days of service of the order of the High Court refusing permission to apply for judicial review. (5) On an application under paragraph ( 1) or (2), the Court of Appeal may, instead of giving permission to appeal, give permission to apply for judicial review. (6) Where the Court of Appeal gives permission to apply for judicial review in accordance with paragraph (5), the case will proceed in the High Court unless the Court of Appeal orders otherwise .

This Judicial Review Claim

The target for judicial review is a decision by the UT on 6 October 2022, refusing permission to appeal from a decision of the FTT on 26 June 2022, dismissing the Claimant's appeal from the Home Secretary's refusal of indefinite leave to remain on 26 March 2021. No claim for judicial review has been made of the Home Secretary's March 2021 decision. That is because that decision attracted a right of appeal to the FTT. No claim for judicial review has been made of the FTT's June 2022 decision. That is because of the statutory right of appeal, with permission, to the UT. But that is the permission which has been refused. Permission for judicial review was refused on the papers on 23 August 2023, with no CPR 23.12 totally without merit certification. The standard form order contained a note informing the Claimant of the right to seek reconsideration. A Notice requesting reconsideration, pursuant to CPR 54.12(3) was filed the same day. On 9 January 2024 an Administrative Court Lawyer, acting under delegated powers ( CPR 54.1A) made directions for an oral hearing of the requested reconsideration. Because it was an own-initiative order ( CPR 3.3), any party had a right to apply within 7 days to set it aside ( CPR 3.3(7)(b)) at an oral hearing ( CPR 3.3(7)). The Home Secretary applied on 25 January 2024 to set aside the directions order, with an extension of time. On 27 February 2024 the Claimant's representatives filed an application to amend the judicial review grounds. On 28 February 2024 I adjourned the case, for reasons I explained at [2024] EWHC 438 (Admin).

Cart

On 22 June 2011, in R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663, the Supreme Court grappled with the scope of judicial review of an UT refusal of permission to appeal. The claimant in that case said the full scope of judicial review should be available. The Home Secretary said no judicial review should be available, because designating the UT as a superior court of record had been designed to exclude judicial review. The Divisional Court had rejected that, reasoning that Parliamentary sovereignty required judicial review, so that public authorities are held to the statutory limits of their powers (see Lady Hale at §30). As encapsulated by the law reporter, the Supreme Court decided that:

In order to keep important errors to a minimum and to provide the level of independent scrutiny outside the tribunal structure required by the rule of law while recognising that the enhanced tribunal set up under the 2007 Act deserved a restrained approach to judicial review and that the best use should be made of the courts' limited judicial resources, on an application for permission to proceed with a claim for judicial review of a refusal by the Upper Tribunal of permission to appeal to itself the court should adopt the criteria upon which applications for permission to make a second-tier appeal to the Court of Appeal were determined .

Those second-tier criteria were (§27): (a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason for the relevant appellate court to hear the appeal. The Supreme Court rejected the following more restricted alternative ( Cart §33): outright excess of jurisdiction by the Upper Tribunal or denial by it of fundamental...