LA (Albania), R (on the application of) v The Upper Tribunal (Immigration & Asylum Chamber)
[2023] EWCA Civ 1337
MD Ayaz Karim, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber)
6 June 2024
[2024] EWHC 1368 (Admin)
High Court
The court case was about challenging a decision by the Upper Tribunal (like an appeals court) that refused to hear an appeal. A new law stops most challenges to this kind of decision. The judge decided there was no way to challenge the Upper Tribunal’s refusal in the High Court, so the case was dismissed. The only option for the claimant is a further appeal to a higher court.
Key Facts
- •Judicial review claim challenging Upper Tribunal (UT) decision refusing permission to appeal a First-Tier Tribunal (FTT) decision.
- •Statutory ouster of judicial review in s.11A of the Tribunals, Courts and Enforcement Act 2007.
- •Claimant sought reconsideration of the High Court's refusal of permission for judicial review.
- •The case hinges on the distinction between the 'what' question (grounds for judicial review) and the 'who' question (which court can hear the case).
- •Relevant CPR rules: 54.7A, 54.12, 52.8.
- •Case law considered: R (Cart) v Upper Tribunal [2011] UKSC 28, R (Oceana) v Upper Tribunal [2023] EWHC 791 (Admin), R (LA (Albania)) v Upper Tribunal [2023] EWCA Civ 1337, Sooy v SSHD [2023] CSOH 93.
Legal Principles
Section 11A of the 2007 Act ousts judicial review of UT decisions refusing permission to appeal, except for specific exceptions (validity of application, proper constitution of UT, bad faith, or fundamental breach of natural justice).
Tribunals, Courts and Enforcement Act 2007, s.11A
The High Court's jurisdiction to reconsider a refusal of permission for judicial review is governed by CPR 54.12 and 52.8, interpreted in light of s.11A.
CPR 54.12, 52.8
The 'what' question (grounds for JR) and 'who' question (court's jurisdiction) are distinct. S.11A primarily addresses the 'what' question, while CPR rules address the 'who' question.
LA (Albania) §29
The rule of law requires a minimum level of judicial scrutiny, but the extent of this minimum in the context of s.11A is determined by a partnership between Parliament and the Courts. The Courts consider whether Parliament's ouster leaves a sufficient level of scrutiny.
R (Cart) v Upper Tribunal [2011] UKSC 28; LA (Albania); Oceana
Post-s.11A, the High Court generally lacks jurisdiction to reconsider a refusal of permission for judicial review of a UT decision on the papers; the route of appeal is to the Court of Appeal.
LA (Albania) §29
Outcomes
The High Court has no jurisdiction to reconsider the refusal of permission for judicial review at an oral hearing.
The Court of Appeal decision in LA (Albania) is binding precedent. The CPR rules, interpreted in light of s.11A, do not provide for such reconsideration. There is no rule of law issue that would justify overriding the statutory ouster and CPR rules.
The claim for judicial review is dismissed, even if the court had jurisdiction.
The FTT judge did not make any material error of law. The claimant's arguments regarding burden of proof and PDA were not persuasive.
Costs are awarded.
The Home Secretary’s costs for the hearing on 16 May 2024 are awarded. The Home Secretary’s application for costs of the hearing on 28 February 2024 is refused. The costs order in paragraph 2 of the Order made by Sweeting J on 23 August 2023 stands.
Similar Cases
Mary Jane Baluden Oceana, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber)
[2023] EWHC 791 (Admin)
Dr Reuben Kirkham v The Information Commissioner
[2024] UKUT 127 (AAC)
JG v The Secretary of State for Work and Pensions
[2024] UKUT 329 (AAC)
Bryce, R (on the application of) v The Ministry of Justice
[2023] EWHC 2778 (Admin)