The King on the application of Mary Jane Baluden Oceana v Upper Tribunal (Immigration and Asylum Chamber)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Saini |
| Judgment Date | 04 April 2023 |
| Neutral Citation | [2023] EWHC 791 (Admin) |
| Docket Number | Case No: CO/3812/2022 |
| Court | King's Bench Division (Administrative Court) |
and
[2023] EWHC 791 (Admin)
THE HONOURABLE Mr Justice Saini
Case No: CO/3812/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rajiv Sharma (instructed by Paul John and Company) for the Claimant
The Defendant did not appear and was not represented
John-Paul Waite (instructed by Government Legal Department) for the Interested Party
Hearing dates: 29 March 2023
Approved Judgment
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This judgment is in 6 main sections as follows:
| I. Overview: | paras. [1]–[8]. |
| II. The Facts: | paras. [9]–[24]. |
| III. Section 11A of the 2007 Act | paras. [25]–[34]. |
| IV. Ground 1: the “natural justice” exception | paras. [35]–[43]. |
| V. Ground 2: efficacy of the ouster | paras. [44]–[54]. |
| VI. Conclusion: | para. [55]. |
I. Overview
This is the trial of a preliminary issue as to jurisdiction in a claim for judicial review. The Claimant is a citizen of the Philippines. She came to the United Kingdom as a student in 2008 but outstayed her permission to remain. She became liable to be removed from the United Kingdom and then applied for leave to remain here on grounds of her private life. That application was refused by the Interested Party (“the SSHD”). The Claimant appealed this refusal to the First-tier Tribunal (“the FTT”). That appeal was dismissed by First-tier Tribunal Judge Isaacs (“FTJ Isaacs”) on 14 April 2022. Another First-tier Tribunal Judge, FTJ Scott, refused her application for permission to appeal to the Upper Tribunal, as did a judge of the Upper Tribunal, UTJ Kopieczek. The Claimant then sought judicial review of that Upper Tribunal decision.
Permission to apply for judicial review of that decision was obtained on “the papers” without the Claimant having drawn attention, in her claim, to the terms of section 11A of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”). That section ousts the supervisory jurisdiction of the High Court in judicial review proceedings, subject to a number of specific exceptions. The Defendant had taken no part in the permission stage and did not serve summary grounds, in accordance with normal practice where the named Defendant is a court or tribunal. However, following the grant of permission, the SSHD raised the section 11A jurisdictional issue with the Court. She argued that the High Court had no jurisdiction to hear the claim.
By Order dated 3 February 2023, a Judge made directions for the trial of a preliminary issue with the following observations:
“The issue as to jurisdiction was overlooked at permission stage. I anticipate that the Claimant will concede it. If she does not, then it should be dealt with as a preliminary issue. This procedure will further the overriding objective by avoiding the time and expense of preparing for, and conducting, a full substantive hearing, including obtaining a recording of the Claimant's evidence in the First-tier Tribunal, when it may well be academic because the Court does not have jurisdiction to hear the claim”.
The Claimant refused to accept these points and to concede that the High Court had no jurisdiction and accordingly directions were given for the trial of the preliminary issue which is before me. At the conclusion of oral submissions on 29 March 2023, I indicated I would dismiss the claim on jurisdictional grounds. These are my reasons.
The dispute
I begin with the relevant terms of section 11A of the 2007 Act. It was added to the 2007 Act by section 2 of the Judicial Review and Courts Act 2022, and came into force on 14 July 2022.
With my underlined emphasis, section 11A of the 2007 Act provides:
“'11A Finality of decisions by Upper Tribunal about permission to appeal
Subsections (2) and (3) apply in relation to a decision by the Upper Tribunal to refuse permission (or leave) to appeal further to an application under section 11(4)(b).
The decision is final, and not liable to be questioned or set aside in any other court.
In particular—
the Upper Tribunal is not to be regarded as having exceeded its powers by reason of any error made in reaching the decision;
the supervisory jurisdiction does not extend to, and no application or petition for judicial review may be made or brought in relation to, the decision.
Subsections (2) and (3) do not apply so far as the decision involves or gives rise to any question as to whether—
the Upper Tribunal has or had a valid application before it under section 11(4)(b),
the Upper Tribunal is or was properly constituted for the purpose of dealing with the application, or
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.
….
“decision” includes any purported decision;
“first-instance decision” means the decision in relation to which permission (or leave) to appeal is being sought under section 11(4)(b);
“the supervisory jurisdiction” means the supervisory jurisdiction of—
…the High Court, in England and Wales or Northern Ireland
…”
The Claimant does not accept this provision precludes her claim. Her Counsel makes two points. First, he says her complaint falls within an expressly permitted exception to the general ‘finality’ rule — the “natural justice” exception (see my underlining above). In the alternative, he argued that the “ouster” of the High Court's supervisory jurisdiction is ineffective in this case for a number of reasons (some narrow and some of a broader nature). In response, the SSHD says that the complaint does not even arguably fall within the “natural justice” exception; and that the section is a clear and valid exclusion of the supervisory jurisdiction, which applies on the facts before me.
The SSHD also makes a number of points on the merits about the arguability of the underlying claim, aside from the jurisdictional finality objection. Those matters are not strictly before me because I am, in accordance with the directions for this hearing, limited to considering the jurisdictional issue. Counsel for the Claimant also stressed that his client still disputes what the tribunals below understood she said in evidence before FTJ Isaacs. This is a surprising submission given that a transcript of the recording is now available. I will however make no findings but will simply record as part of the narrative what is said by each side in order to explain the context in which the “natural justice” exception to the ouster is invoked by the Claimant.
II. The Facts
The Claimant is a national of the Philippines who entered the UK on 22 January 2008 as a student. She was given a series of grants of leave to remain as a student until 15 July 2016. At the material times, her home residence was in Feltham, West London. From 25 March 2012 until the curtailment of her leave in 2015 the Claimant was studying at an institution called Eynsford College. The address of this College was 37–39 Oxford Street, London W1D 2DU.
In 2015, the Home Office determined that the Claimant had fraudulently used a proxy to complete an oral English language test at an institution called Eden College International (“Eden College”) on 25 September 2013. That is, using another person to sit the test for her. The Claimant had relied upon having sat and passed this test in an application for leave to remain which she made on 4 October 2013. At the time when this test was said to have been taken, and thereafter, the Claimant was studying at Eynsford College in Central London. Eden College was at the material time located in the Mile End Road in East London. As explained by FTJ Isaacs in her decision — see [13] below — Eden College has been established in other court proceedings to be an institution where testing frauds were rife.
The Claimant's leave was curtailed with immediate effect on 15 October 2015. The Claimant's scores from the language test had been cancelled by the Educational Testing Service (ETS) because of claimed fraud. The Home Office decided that the Claimant's presence in the United Kingdom was not conducive to the public good because of her fraud in obtaining a TOEIC test certificate. The Claimant made no challenge at that time to the allegation of fraud. She then unlawfully remained in the UK thereafter and was eventually served with notice of her liability to removal as an overstayer. On 22 November 2019, the Claimant applied for leave to remain on the basis of her private life. That application was refused by the SSHD on 25 February 2021. This decision was the subject of the appeal before the FTT which was heard by FTJ Isaacs on 11 April 2022.
In addition to giving oral evidence to FTJ Isaacs, the Claimant submitted a detailed written statement in support of her case. That statement did not suggest that she completed the English Language Test at Eden College because it was close to the college at which she was studying. Her written witness evidence in relation to why she took the test at Eden College (including her journey to get there) was in the following terms:
“15. I submit that I sat the TOEIC test and this was submitted as part of a UK visa application. I sat the test at Eden College International, 401 Mile End Road, Bow, E3 4PB.
16. At the time of application this was an approved test by the Respondent and therefore there was no issues or circumstances to doubt the test. It was equivalent to any other English language test. At the time also it was a very common test amongst students and it was...
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