Practitioners with experience of seeking to challenge an Upper Tribunal (Immigration and Asylum Chamber) permission refusal will be familiar with the difficulties in winning relief.

A Cart-style judicial review, named after the Supreme Court’s judgment in Cart and MR (Pakistan) [2011] UKSC 28, is governed by Civil Procedure Rule 54.7A. This provides for a shortened limitation period of just 16 days, the necessity to demonstrate that the ‘second appeals’ threshold has been met and the abolition of the right to an oral renewal hearing.

Where permission on the papers is granted, CPR 54.7A(9) and (10) provide that, unless a hearing is sought, the Upper Tribunal’s (UT) decision to refuse permission will be quashed. The relevant decision-maker is always added to the claim as an interested party and may request a substantive hearing, as happened in the instant case.

The Administrative Court has now found in favour of the claimants in the first successful substantive Cart-JR against a decision of the UT refusing permission to appeal from the First-Tier Tribunal (FTT) to the UT (termed ‘an Upper Tribunal permission refusal’ in the judgment).

G and H v Upper Tribunal and SSHD [2016] EWHC 239 (Admin) involved a claim for asylum made by G, a Nigerian woman, who had been trafficked from Nigeria to a ‘trafficking destination country’. G appealed to the FTT on the basis that on returning to Nigeria she would be at risk of reprisals from her traffickers, and that her daughter, H, would be at risk of subjection to female genital mutilation, as G herself had been. G and H’s appeals were dismissed by the FTT and they applied for permission to appeal to the UT on a number of grounds. Permission was refused by the FTT and, upon renewal, by the UT. G then made an application for a Cart-JR. Permission was granted and, unusually, the interested party requested a substantive hearing.

After two full days of substantive hearing, the Admin Court gave detailed guidance as to the test to be applied at the substantive JR stage and the role of the High Court in considering a substantive claim, which will be useful for practitioners in all specialist tribunals.

Mr Justice Walker found that the relevant test at the substantive stage is whether ‘an Upper Tribunal FTT permission refusal is vitiated because the Upper Tribunal misunderstood or misapplied the law when holding that the would-be appellant had identified no arguable ground of appeal [122]’. In other words, and contrary to the test advocated by the secretary of state for the home department (SSHD), there is no need to show that the FTT itself committed an error of law, but only that there was at least an arguable error of law disclosed in the appellant’s grounds of permission to the UT.

Additionally, the Admin Court accepted that there would be cases where the court itself, at the JR stage, would be capable of reviewing the merits of the grounds of appeal and determining whether they were not merely arguable, but ‘plainly right’. This will depend upon the circumstances of the case and will only be done where the Admin Court is as well placed as the specialist tribunal to decide the question of law.

Mr Justice Walker helpfully set out three broad categories of case, two of which can succeed and one of which cannot. Cases which may succeed include those mentioned above, where the ‘submissions at the substantive judicial review… lead the court to conclude that a ground of appeal advanced by a would-be appellant is plainly right [85]’, as well as cases where ‘the High Court concludes that the allegedly arguable ground of appeal is neither plainly wrong, nor plainly right, but is indeed … arguable [88]’.

On the other hand, cases which cannot succeed are those where ‘the would-be appellant’s allegedly arguable ground of appeal is plainly wrong for the reason given by the Upper Tribunal [81]’.

In setting out the role of the High Court in these types of JR, Mr Justice Walker accepted that ‘… it will often be undesirable for the court to decide a question which the Upper Tribunal may properly be called upon to decide’. However, he went on to find that ‘if the matter is properly within the court’s expertise… and a conclusion that the allegedly arguable ground of appeal is plainly right can be reached without making undue demands on court resources, then it may be consistent with the overriding objective to hear argument on the point and decide it [87]’.

In the case of G and H, having examined the grounds, Mr Justice Walker took the view that they fell into the ‘plainly right’ category.

Another interesting note for practitioners is whether or not it would ever be possible or desirable for the parties to negotiate some form of consent in a substantive JR. In the instant case the SSHD attempted to settle the case part way through the substantive hearing by proposing a consent order with the remedy that the UT permission refusal be quashed – not because she admitted to any error of law therein, but for purely ‘pragmatic’ reasons.

Mr Justice Walker declined to make the proposed order because in his view it is ‘elementary that a decision of the Upper Tribunal cannot be quashed merely because this is thought to be the most practical resolution [208]’.

The case will hopefully encourage practitioners to challenge refusals of permission by the UT where their grounds are either arguable, or ‘plainly right’. The Admin Court has sent a clear message to the tribunals that their decisions are properly reviewable, notwithstanding the deference that is often paid to them and the limitations established in Cart.

Lucy Mair is a barrister at Garden Court North Chambers in Manchester. She appeared for the claimant in G and H v Upper Tribunal and SSHD

Topics