R (on the application of Cart) & others v SSHD & Upper Tribunal – Case note

R (on the application of Cart) (Appellant) v The Upper Tribunal (Respondent); R (on the application of MR (Pakistan)) (FC) (Appellant) v The Upper Tribunal (Immigration & Asylum Chamber) and Secretary of State for the Home Department (Respondent) [2011] UKSC 28

Background

The question in these cases boiled down to ‘what level of independent scrutiny of the Upper Tribunal (UT) is required by the rule of law’ since the unification of tribunals by the Tribunal, Courts and Enforcement Act [2007].  There were three possible approaches which the Court could take. First, that the scope of judicial review should be restricted to excess of jurisdiction and the denial of fundamental justice (together with possibly other exceptional circumstances). Second, that nothing has changed; judicial review of refusals of leave to appeal from one tribunal tier to another has always been available and with salutary results for the systems of law in question. The third option, somewhere between the first two, is that judicial review in these cases should be limited to the grounds upon which permission to make a second-tier appeal to the Court of Appeal would be granted. 

The level of independent scrutiny ‘if any’ had to be principled and proportionate. In achieving that, the Court balanced a number of factors, summarized in general terms as follows: that judicial resources are limited and the Courts have in recent years found it difficult to deter repeated or unmeritorious applications in immigration and asylum cases, but that does not mean such applications should become virtually impossible; that however expert and high-powered the UT may be there is a real risk of it becoming in reality the final arbiter of the law- this is not what Parliament has provided; there is a need to restrict the duplication of judicial oversight and yet serious questions of law must be allowed to be channeled into the legal system because there would be no independent means of spotting them outside the UT, and although High Court judges may sit in the UT they will certainly not be responsible for deciding all permission applications.

Held

The Court unanimously rejected the government’s argument that judicial review should only be available in ‘exceptional cases’ preferring the third approach which means judicial review is available to challenge decisions of the Upper Tribunal but only on the same grounds as apply when the Court of Appeal is considering a second appeal. 

Therefore, permission for judicial review will only be granted if the challenge (i) raises an important point of principle or practice or (ii) there is some other compelling reason for the court to hear it. Lord Dyson explained that the last limb of the test (‘some other compelling reason’) would enable the court to examine an arguable error of law which may not raise an important point of principle or practice, but which cries out for consideration by the court if the UT refuses to hear it. He cautiously suggested depending on the particular circumstances that it could apply to: (i) a case where it is strongly arguable that the individual has suffered “a wholly exceptional collapse of fair procedure” or (ii) a case where it is strongly arguable that there has been an error of law which has caused truly drastic consequences.

Discussion

Three other points must be noted. First, it appeared to be accepted by the Court that full judicial review of unappealable decisions of the FTT (i.e. preliminary decisions), and possibly excluded decisions of the Upper Tribunal (i.e. review decisions) remain available.

Second, the Court was not inclined to accept that if an application for judicial review was refused there should be a right to apply to the Court of Appeal, or that at either stage there should be a paper and oral application stage.  In the Court’s view it would be totally disproportionate to provide for a ‘four stage system of paper and oral applications to which the ordinary judicial review procedure is subject.’ The Court strongly inclined toward a single paper application only ‘unless the court otherwise orders,’ but agreed it was a matter for the Civil Procedure Rules Committee to determine. 

Finally, what might amount ‘to truly drastic consequences’ per Dyson in the context of the ‘some other compelling reasons’ limb of the new test clearly permits considerable scope for debate.

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

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