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Immigration & Asylum Law Update: Cart Style Judicial Review – Keeping the Upper Tribunal Honest

by Kenworthy's Chambers 04/06/2018

One of a number of measures restricting the ability of those in the UK's immigration or asylum system from accessing the Courts in recent years was the introduction and application of the so-called "second appeals test". This test now applies in those cases whereby a matter has progressed through the Tribunal system and a party seeks leave to appeal to the Court of Appeal. It is a relatively stringent test, designed, quite explicitly, to limit the quantity of appeals that the Court of Appeal has to tackle, by seeking to ensure that those immigration and asylum matters that make it that far have some particular point of "principle" or "practice", or some other "compelling" reason why the Court of Appeal needs to hear the issue. In reality, this has made it largely impossible for immigration or asylum applicants to have the Court of Appeal pronounce on the issues they seek to raise, although by contrast, in those cases where applicants have been successful in the lower Tribunals (in particular in deportation matters) it is perhaps fair to say that the government has had a remarkably easier time in reaching the lofty heights of England and Wales' second highest Court.

The second appeals test has wider application however, because it is also the test to be applied by the High Court when it is being asked to engage in a review of a refusal by the Upper Tribunal to grant permission to appeal to itself from the First Tier Tribunal, sometimes called a ‘Cart Style' Judicial Review. These challenges are now subject to their own, heavily restrictive, procedure, laid down by Civil Procedure Rule 54.7A which includes, amongst other things, a significantly abridged timescale for launching proceedings. As such, the amended procedure acts not only as a legal, but also a procedural barrier to challenges to the Upper Tribunal for its failure to take a case in its appellate capacity.

Given the relatively hefty barrier that Appellants now face in exercising their right to a ‘Cart Style' Judicial Review, the question must arise as to whether it is worth pursuing these cases, where the odds are so heavily stacked against them. The answer is perhaps not entirely straightforward, and requires a careful assessment of the arguable merit of any particular case, but notwithstanding the barriers that Appellants face, there are examples of the importance in pursuing such challenges, in appropriate cases.

One such example can be seen in the unreported decision of MB [2017] UKAITUR AA001322016. Represented by Craig Holmes, MB pursued an appeal to the First Tier Tribunal following the Home Office's rejection of his claim to have converted to Christianity. The appeal before the First Tier Tribunal failed, and MB sought permission to appeal. Despite what MB contended where fairly plain flaws in the decision of the First Tier Tribunal, both the First and Upper Tier Tribunals refused permission to appeal to MB. It followed, therefore, that a ‘Cart Style' Judicial Review was necessary, if MB was to have lawful consideration of his asylum case.

Despite the high threshold to be met, Craig was successful in securing Judicial Review of the Upper Tribunal, and the case went forward to an appeal, which was ultimately successful. The case is therefore a reminder; notwithstanding the legal and procedural hurdles that Appellants face in challenges of the Upper Tribunal in circumstances such as these, where the cases are meritorious, it is important to pursue them, as there is still a willingness of the High Court to recognise those cases in which the Upper Tribunal has simply got it wrong.