The Court of Appeal (CoA) recently heard a case regarding a critical aspect of UK immigration law:- the very limited circumstances under which a refusal of permission to appeal (PTA) by the Upper Tribunal (UT) can be challenged in the High Court via judicial review.
Background:
Ms. Sadia Chowdhury, a Bangladeshi national, initially came to the UK as a student in February 2010. Her immigration leave expired in December 2013 and, despite various attempts to secure further leave, she has since remained in the UK as an overstayer. On 2 March 2020, the Home Office refused her application for leave to remain in the UK based on human rights, in particular Article 8 of the European Convention on Human Rights (ECHR) – the right to respect for private and family life.
Ms. Chowdhury appealed against that refusal, but the First-tier Tribunal (FTT) dismissed the appeal. A PTA against that decision was refused both by the FTT itself and the UT. On 6 December 2022, the claimant commenced proceedings in the High Court against the UT, seeking judicial review of its refusal of PTA. Following a refusal of permission to apply for judicial review, she filed an Appellant's Notice in the CoA.
Decision:
The CoA dismissed the appeal and refused the PTA. The starting point is Section 11A of the Tribunals, Courts and Enforcement Act (TCEA) 2007. This law is designed to make UT refusals of PTA "final," meaning they generally cannot be challenged further. The Court agreed that the UT's omission, in failing to put forward her crucial "Supplementary Grounds of Appeal", was a "procedural defect”. This defect, however, does not affect the fundamental fairness of the decision.
Importantly, if the "natural justice exception" applies, the High Court's jurisdiction is limited to reviewing only those grounds of appeal that were left unfairly unconsidered (in this case, the "family life" argument), and no other grounds that the UT Judge did consider and reject.
The Court confirmed that the High Court Judge was wrong to apply the old "Cart test" for granting permission for judicial review. Instead, for cases falling under the Section 11A(4) exceptions, courts should apply the straightforward test of whether the claim for judicial review is "realistically arguable".
However, the CoA ultimately concluded that this error made no practical difference to his final decision in this specific case.
The Court expressed "surprise" at the FTT's conclusion that Ms. Chowdhury and Dr. Alam did not have a "family life," considering the strong evidence of their relationship and dependency. It accepted that this was arguably an error of law. However, the Court ultimately agreed with Griffiths J that even if the FTT had correctly identified a "family life," the overall outcome of the appeal would "inevitably have been the same."
Implications:
This case is particularly relevant for those who have exhausted their appeal rights through the FTT and UT. This case highlights the significant challenges faced by individuals seeking to remain in the UK on human rights grounds, particularly when they have overstayed their leave and are appealing decisions through the tribunal system. It also highlights that a UT's refusal of PTA is largely "final."
This case reinforces that while procedural fairness is a cornerstone of justice, successfully challenging immigration decisions, particularly after a UT refusal of a PTA, requires not only a demonstrable and fundamental procedural error but also a truly arguable substantive legal point that has a real prospect of changing the outcome of the overall appeal.
