The claimant appealed to the First-tier Tribunal against the Secretary of State’s refusal to grant him indefinite leave to remain in the United Kingdom. The First-tier Tribunal dismissed the appeal and the Upper Tribunal refused permission to appeal against the First-tier Tribunal’s decision. The claimant then applied for permission to bring judicial review proceedings challenging the Upper Tribunal’s refusal of permission to appeal. Permission for judicial review was refused on the papers on the ground that the claim was precluded by section 11A(2) of the Tribunals Courts and Enforcement Act 2007 providing for finality of decisions by Upper Tribunal about permission to appeal, since none of the exceptions set out elsewhere in the section were made out. The claimant applied for reconsideration of his judicial review permission application at an oral hearing pursuant to CPR r 54.12(3). Directions were given for a hearing but the Secretary of State applied to set aside the directions order, raising an issue as to the jurisdiction of the court and whether oral reconsideration of an application for permission for judicial review was available in a section 11A case. In support of his contention that it was, the claimant pointed to the removal from 5 April 2023 of the express restriction, formerly contained in CPR 54.7A(8), excluding oral reconsideration of an application for permission for judicial review of a decision of the Upper Tribunal. The claimant contended that, in light of the removal of that express restriction, there was now a right to request reconsideration at an oral hearing in the High Court pursuant to CPR r 54.12(3), which right existed alongside the right under CPR r 52.8(2) to apply to the Court of Appeal for permission to appeal against the paper refusal.
On the jurisdiction issue—
Held, a civil procedure rule removing reconsideration by the High Court at an oral hearing, in the context of judicial review of an Upper Tribunal refusal of permission to appeal from the First-tier Tribunal, involved no abrogation of any fundamental right or constitutional value and was not inconsistent with the rule of law. The question of jurisdiction issue was instead governed determined by the proper interpretation of the CPR. In that regard, CPR r 54.12(3) and CPR r 52.8(2) could not sensibly be interpreted as conferring two simultaneous rights since that would fail to give effect to the overriding objective in CPR r 1.2 of dealing with cases justly and at proportionate cost. Accordingly, the High Court had no jurisdiction in a section 11A case to reconsider the refusal of permission for judicial review at an oral hearing. CPR r 54.7A did not need to spell the position out, even though it had previously done so, and the Rules Committee had not considered it necessary to do so in the light of section 11A of the 2007 Act. It followed that the adverse determination on the papers ended the High Court’s consideration of the matter, the question of whether that decision had been correct then becoming one for the Court of Appeal pursuant to CPR r 52.8. If the Court of Appeal overturned the paper permission judge as wrong, the High Court’s jurisdiction in the case would then be restored pursuant to CPR r 52.8(6) for any substantive hearing in that court. Accordingly, in the present case, the High Court lacked jurisdiction to consider the claimant’s claim for judicial review further, absent an order of the Court of Appeal granting permission for judicial review pursuant to CPR r 52.8(6) (paras 10–12, 14, 15, 25).
Per curiam. Questions as to the legally correct interpretation of section 11A of the Tribunals Courts and Enforcement Act 2007, and the level of independent scrutiny required by the rule of law in terms of the scope of judicial review, concern the question of “what” a judicial review claimant must demonstrate in order to succeed, not the separate issue raised in the present case of “who”, in the sense of which judge or judges, have the function of dealing with the case (paras 1, 11).
Sonali Naik KC (instructed by Zyba Law) for the claimant.
John-Paul Waite (instructed by Treasury Solicitor) for the Upper Tribunal.
The Secretary of State did not appear and was not represented