High Court Rules on Judicial Review Ouster in Immigration Case

Introduction

The High Court, in the case of The King (on the application of MD Ayaz Karim) vs Upper Tribunal (Immigration and Asylum Chamber), addressed the procedural implications of a statutory ouster of judicial review. The case examined the distinction between what a judicial review claimant must demonstrate to succeed and which judge or judges have the function of dealing with the case.

The judicial review claim sought to challenge an Upper Tribunal (UT) decision that refused permission to appeal from a decision of the First Tier Tribunal (FTT). The statutory right of appeal to the UT from the FTT is governed by s.11 of the Tribunals, Courts and Enforcement Act 2007.

The Rules

The case involved three relevant rules: CPR 54.7A, CPR 54.12, and CPR 52.8. CPR 54.7A outlines the conditions under which judicial review of UT decisions can be made. CPR 54.12 deals with permission decisions without a hearing, and CPR 52.8 addresses judicial review appeals from the High Court.

CPR 54.7A specifies that judicial review of UT decisions is limited to questions about the validity of the application, the constitution of the UT, or fundamental breaches of natural justice. CPR 54.12 allows for permission decisions without a hearing, with provisions for reconsideration at a hearing under certain conditions. CPR 52.8 provides for applications for permission to appeal to the Court of Appeal.

This Judicial Review Claim

The target for judicial review was a UT decision on 6 October 2022, refusing permission to appeal from an FTT decision on 26 June 2022, which dismissed the claimant's appeal from the Home Secretary's refusal of indefinite leave to remain on 26 March 2021. The judicial review claim was refused on the papers on 23 August 2023, with the claimant requesting reconsideration the same day.

On 9 January 2024, an Administrative Court Lawyer made directions for an oral hearing of the requested reconsideration. The Home Secretary applied to set aside the directions order, and the case was adjourned on 28 February 2024.

Cart and Section 11A

The case referenced the Supreme Court's decision in R (Cart) v Upper Tribunal [2011] UKSC 28, which addressed the scope of judicial review of UT refusals of permission to appeal. The Supreme Court decided that judicial review should be available under certain criteria, known as the second-tier criteria.

Section 11A of the Judicial Review and Courts Act 2022, effective from 14 July 2022, introduced new provisions that limit the finality of UT decisions on permission to appeal. The High Court's judgment examined the implications of these changes and their alignment with the rule of law.

Oral Reconsideration and s.11A Cases

The claimant's counsel argued that the High Court had jurisdiction to entertain oral reconsideration under CPR 54.12(3). The court, however, concluded that the High Court lacked jurisdiction for oral reconsideration after an adverse paper determination, as per the rules and the Court of Appeal's decision in LA (Albania).

Legal Merits

The court also addressed the legal merits of the case. The claimant argued that the FTT judge made errors of law regarding the burden of proof and the treatment of fresh evidence. The court found no arguable material error of law by the FTT judge, concluding that the UT's refusal of permission to appeal was justified.

Conclusions

The High Court concluded that it had no jurisdiction to further consider the claim for judicial review absent an order from the Court of Appeal. The court also found no jurisdiction to reconsider the refusal of permission for judicial review at an oral hearing. Even if jurisdiction existed, the court would have dismissed the claim for permission for judicial review.

Costs

The court ordered the claimant to pay the Home Secretary's costs of the hearing on 16 May 2024, summarily assessed at £1,600, while refusing the Home Secretary's application for costs of the hearing on 28 February 2024.

This judgment provides clarity on the procedural limitations of judicial review in immigration cases, particularly in light of statutory ousters and the application of recent legislative changes.