Upper Tribunal (Immigration and asylum chamber), 2021-04-28, [2021] UKUT 117 (IAC) (EH (PTA: limited grounds, Cart JR))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Mr C M G Ockelton, Vice President |
| Status | Reported |
| Date | 28 April 2021 |
| Published date | 14 May 2021 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | PTA: limited grounds, Cart JR |
| Hearing Date | 24 March 2021 |
| Appeal Number | [2021] UKUT 117 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
EH (PTA: limited grounds; Cart JR) Bangladesh [2021] UKUT 0117 (IAC)
THE IMMIGRATION ACTS
|
Heard at Field House by Skype |
Decision & Reasons Promulgated |
|
On 24 March 2021 Further submissions on 31 March 2021 |
28 April 2021 |
Before
THE HON. MR JUSTICE LANE, PRESIDENT
MR C M G OCKELTON, VICE PRESIDENT
Between
EH
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Mr M Symes and Ms A Nizami, instructed by Duncan Lewis Solicitors
For the respondent: Mr T Lindsay, Senior Home Office Presenting Officer
(1) When the Upper Tribunal grants permission to appeal from the First-tier Tribunal, even on limited grounds, its decision is not amenable to judicial review under the Cart procedure, which, as specifically indicated by CPR 54.7A, is available only when the Upper Tribunal refuses permission.
(2) Rule 22(2)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 has the effect that in the absence of any direction limiting the grounds which may be argued before the Upper Tribunal, the grounds contained in the application for permission are the grounds of appeal to the Upper Tribunal, even if permission is stated to have been granted on limited grounds.
(3) Rule 22(2)(b) has the complementary effect that any limitation on the grounds of appeal must be by direction and, as a direction, can be the subject of an application to amend, suspend or set aside that direction under rule 5(2) of the 2008 Rules.
DECISION AND REASONS
A. THE APPELLANT AND HIS APPEAL
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On 15 January 2020, the First-tier Tribunal heard the appeal of the appellant, a citizen of Bangladesh, against the decision of the respondent to deport him to Bangladesh. On 19 December 2007, the appellant had killed his wife in the United Kingdom and on 1 December 2008 he was convicted of murder and sentenced to life imprisonment, with a recommendation that he serve a minimum of twelve years before release. The appellant made a protection claim, asserting that he would be at real risk of serious harm, if returned to Bangladesh, because his late wife’s family would kill him there. Second, he said that he had converted from Islam to Christianity and so would be at real risk of serious harm in Bangladesh as an apostate. Third, the appellant claimed that he was bisexual and wanted to live openly as such, but that he would be at real risk of serious harm, if he did so in Bangladesh. The respondent refused the appellant’s protection claim and the appellant exercised his right of appeal to the First-tier Tribunal.
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On 4 February 2020, following a hearing the previous month, the First-tier Tribunal promulgated a decision, dismissing the appellant’s appeal on asylum and human rights grounds. He sought permission to appeal on seven grounds. On 3 March 2020, the First-tier Tribunal refused permission to appeal. The appellant then renewed his application to the Upper Tribunal, on each of the seven grounds.
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On 26 May 2020, Upper Tribunal Judge Sheridan made a decision as follows: “Application for permission to appeal is granted in respect of Grounds 4 and 7 only” (original emphasis).
B. THE JUDICIAL REVIEW
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CPR 54.7A(1) provides as follows:-
“Judicial review decisions of the Upper Tribunal
54.7A-(1) This rule applies where an application is made, following refusal by the Upper Tribunal of permission to appeal against a decision of the First-tier Tribunal, for judicial review –
(a) of the decision of the Upper Tribunal refusing permission to appeal; or
(b) which relates to the decision of the First Tier Tribunal which was the subject of the application for permission to appeal” (our emphasis).
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On 6 July 2020, the appellant applied for permission to judicially review UTJ Sheridan’s decision. Paragraph 1 of the Statement of Facts and Grounds that accompanied the application stated that UTJ Sheridan had “granted permission to appeal in respect of two grounds, grounds 4 and 7, and refused permission on all other grounds”. Under the heading “Relief sought”, however, the application stated that what was requested was “an order quashing the permission decision of UTJ Sheridan granting permission only on limited grounds”, together with “an order that permission to appeal to the Upper Tribunal be granted on the grounds which were refused by the Upper Tribunal”.
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On 28 August 2020, the High Court granted permission to bring judicial review. In the High Court’s order, under the heading “Observations”, there is the following:-
“CPR 54.7A applies to this case.
I consider that the grounds advanced are arguable and have a reasonable prospect of success, and that the case raises an important point or practice (particularly the need to address the question of why a person might be discreet about their sexuality/religion), and that there is a compelling reason for the grounds of appeal to be heard given that permission has been granted on other grounds such that an appeal will be heard in any event, and it is unlikely that these additional grounds will significantly add to the time required for the appeal.”
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On 15 February 2021, Master Gidden, having noted that no request had been made under CPR 54.7A(9) for a substantive hearing, ordered that “the decision of the Upper Tribunal to refuse permission to appeal is quashed”.
C. THE UPPER TRIBUNAL HEARING
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On 25 February 2021, the Vice President of the Upper Tribunal Immigration and Asylum Chamber issued directions, as follows:-
“1. This appeal will be listed for a hearing by remote means on 24 March 2021 at 10.30. A Notice of Hearing, with joining instructions will be sent out shortly.
2. The parties must on that occasion be prepared to make submissions before a senior panel on the effects of rules 22(2) and 5(2) of the Upper Tribunal Procedure Rules in this case and generally; on the effect of the Order of the High Court in this case, and on the further progress of this appeal.”
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On 24 March, Mr Symes appeared for the appellant. Mr Symes had not previously been involved in the appeal. He prepared a helpful skeleton argument, for which we are grateful. We heard oral submissions from Mr Symes and Mr Lindsay. Following the hearing, the parties were given the opportunity to file and serve further written submissions on the question of whether it is possible or necessary to bring a “Cart” judicial review challenge in the event of a partial or limited grant of permission by the Upper Tribunal. Mr Lindsay informed us that no such submission would be made by him. For the appellant, Mr Symes and Ms Nizami filed written submissions on 31 March 2021, which we have found helpful.
D. LEGISLATION
(a) Tribunals, Courts and Enforcement Act 2007
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So far as relevant, sections 11 and 13 of the Tribunals, Courts and Enforcement Act 2007 provide as follows:-
“11. Right to appeal to Upper Tribunal
(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.
(2) Any party to a case has a right of appeal, subject to subsection (8).
(3) That right may be exercised only with permission (or, in Northern Ireland, leave).
(4) Permission (or leave) may be given by—
(a) the First-tier Tribunal, or
(b) the Upper Tribunal, on an application by the party.
…
13. Right to appeal to Court of Appeal etc.
(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision.
(2) Any party to a case has a right of appeal, subject to subsection (14).
(3) That right may be exercised only with permission (or, in Northern Ireland, leave).
(4) Permission (or leave) may be given by—
(a) the Upper Tribunal, or
(b) the relevant appellate court, on an application by the party.
…
(8) For the purposes of subsection (1), an ‘excluded decision’ is—
…
(c) any decision of the Upper Tribunal on an application under section 11(4)(b) (application for permission or leave to appeal),
…”
(b) Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014
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The following provisions of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 are relevant for our purposes:-
“Application for permission to appeal to the Upper Tribunal
33.—(1) A party seeking permission to appeal to the Upper Tribunal must make a written application to the Tribunal for permission to appeal.
…
Tribunal’s consideration of an application for permission to appeal to the Upper Tribunal
34.—(1) On receiving an application for permission to appeal the Tribunal must first consider whether to review the decision in accordance with rule 35.
(2) If the Tribunal decides not to review the decision, or reviews the decision and decides to take no action in relation to the decision, or part of it, the Tribunal must consider whether to give permission to appeal in relation to the decision...
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