LA (Albania), R (on the application of) v The Upper Tribunal (Immigration & Asylum Chamber)
[2023] EWCA Civ 1337
Mary Jane Baluden Oceana, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber)
4 April 2023
[2023] EWHC 791 (Admin)
High Court
Someone challenged a decision refusing their immigration appeal. A new law largely prevents such challenges, unless there's a serious procedural flaw. The court found no such flaw, so the original decision stands.
Key Facts
- •The Claimant, a Filipino citizen, overstayed her student visa in the UK and applied for leave to remain based on private life.
- •Her application was refused, and subsequent appeals to the First-tier Tribunal (FTT) and Upper Tribunal (UT) were dismissed.
- •The Claimant sought judicial review of the UT's decision, initially without referencing Section 11A of the Tribunals, Courts and Enforcement Act 2007 (2007 Act).
- •Section 11A, added by the Judicial Review and Courts Act 2022, largely ousts the High Court's supervisory jurisdiction over UT permission-to-appeal decisions, with exceptions for procedural defects amounting to a fundamental breach of natural justice.
- •The Claimant argued her case fell under the natural justice exception and that the ouster clause was ineffective.
- •The central dispute concerned whether FTJ Isaacs accurately recorded the Claimant's evidence regarding her choice of test center for an English language test (Eden College), which was later found to be involved in widespread fraud.
Legal Principles
Section 11A of the 2007 Act largely ousts the High Court's supervisory jurisdiction over Upper Tribunal decisions refusing permission to appeal, subject to specific exceptions.
Tribunals, Courts and Enforcement Act 2007, Section 11A
The principles of natural justice require fairness in process, including the right to be heard, notice of the case, and a right to be heard on relevant matters. However, what constitutes fairness depends on the context and statutory framework.
Common Law Principles of Natural Justice
Parliament has the power to oust or exclude judicial review with clear language.
Cart v Upper Tribunal [2011] UKSC 28
The courts are the authoritative interpreters of legislation, but must give effect to Parliament's will as expressed in legislation unless there is a higher form of law (e.g., a written constitution).
Common Law Constitutional Principles
Outcomes
The claim for judicial review was dismissed.
The court found the Claimant's case did not fall under the natural justice exception of Section 11A. The court also rejected arguments that Section 11A was an ineffective or impermissible ouster of the High Court's supervisory jurisdiction.
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