The High Court has upheld the effectiveness of the ouster clause in the Judicial Review and Courts Act 2022, which ousts the jurisdiction of the courts in Upper Tribunal permission to appeal decisions except in very limited circumstances. The decision is R (Oceana) v Upper Tribunal (Immigration and Asylum Chamber) [2023] EWHC 791 (Admin).

What is the ouster clause?

Following the report of the Independent Review of Administrative Law, the government committed to removing Cart judicial reviews. You can read more here. In summary, Cart judicial reviews are challenges against a decision of the Upper Tribunal to refuse to grant permission to appeal.

The eventual ouster clause, preventing judicial reviews except in very limited circumstances, contained in section 2 of the Judicial Review and Courts Act 2022, came into force on 14 July 2022. It inserted section 11A into the Tribunal, Courts and Enforcement Act 2007. Section 11A(2) provides that a decision of the Upper Tribunal to refuse permission to appeal “is final, and not liable to be questioned or set aside in any other court”. One of the limited exceptions is section 11A(4)(c)(ii), which states that section 11A(2) does not apply where the upper tribunal is acting or has acted “in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice” (“the natural justice exception”).

The case

Ms Oceana came to the UK as a student in 2008 but overstayed. She became liable for removal and applied for leave to remain on grounds of her private life. This was refused by the Secretary of State. Ms Oceana appealed to the First-tier Tribunal, who dismissed her appeal on 14 April 2022. Both the First-tier and Upper Tribunals refused her permission to appeal. She sought judicial review of the Upper Tribunal’s decision.

Permission to apply for judicial review was granted on the papers, curiously without the claimant having drawn attention to the new section 11A of the Tribunal, Courts and Enforcement Act 2007. The Secretary of State, acting as interested party, raised the section 11A jurisdictional issue in her detailed grounds and the High Court determined that the this was to be dealt with as a preliminary issue.

Two grounds arose for the High Court’s decision. First, whether the circumstances of the claimant’s case fell within the natural justice exception. Second, whether the ouster inserted by section 2 of the JRCA 2022 was effective at ousting the High Court’s jurisdiction.

Natural justice exception

The crux of Ms Oceana’s complaint was that the First-tier Tribunal judge who heard her appeal had made an error of fact in failing to accurately record her oral evidence.

Mr Justice Saini noted that there were a large number of cases on what natural justice or fairness requires in particular circumstances. However, an important principle was that the requirements of fairness must be interpreted in a manner which does not frustrate parliamentary intention. Parliament has taken care to require a “fundamental breach” of natural justice for the exception to apply. As a general principle, the individual must identify “a failure in process which is so grave as to rob the process of any legitimacy”, which was a substantial hurdle; the result and merits of the decision cannot be subject of the exception.

Applying this to the present case, Saini J considered there was no procedural error, much less a fundamental breach of the principles of natural justice. The First-tier Tribunal judge who considered the issue of permission to appeal had listened to an audio recording of Ms Oceana’s evidence and was satisfied there was no material mistake. Her asserted right to be informed prior to any decision on permission to appeal, in relation to any discrepancy between her grounds of appeal and the official record of evidence she gave (the recording), was not a requirement of common law fairness principles in ordinary civil cases, much less a “fundamental breach”. Further, there was a process in place for the claimant to apply for a record of proceedings for herself, which she did not take advantage of.

Efficacy of ouster

The main argument under this ground was the “ambitious submission” that section 11A was an “impermissible ouster” of the High Court’s supervisory jurisdiction; and that the court had a common law power to ignore the statutory exclusion of judicial review.

Saini J flatly rejected this, producing a paragraph which strongly defended the principle of the supremacy of Parliament in the context of ouster clauses, and the courts’ obligation to give effect to said principle:

“[T]he rule of law applies as much to the courts as it does to anyone else. That means that under, our constitutional system, effect must be given to Parliament’s will expressed in legislation. In the absence of a written constitution capable of serving as some form of “higher” law, the status of legislation as the ultimate source of law is the foundation of democracy in the United Kingdom. The most fundamental rule of our constitutional law is that the Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme. The common law supervisory jurisdiction of the High Court enjoys no immunity from these principles when clear legislative language is used, and Parliament has expressly confronted the issue of exclusion of judicial review, as was the case with section 11A. In short, there is no superior form of law than primary legislation, save only where Parliament has itself made provision to allow that to happen.”

He concluded that section 11A was “a clear binding and effective partial exclusion of the common law supervisory jurisdiction of the High Court in the circumstances before [him]”. The jurisdictional issue was therefore decided in favour of the Secretary of State and the claim for judicial review was dismissed.

Comment

The judgment has already attracted political attention, with former Lord Chancellor Robert Buckland – who led the introduction of the Cart ouster– expressing his delight that the ouster has been upheld, alongside a “strong reaffirmation of Parliamentary Sovereignty and the true meaning of the Rule of Law”.

Against this, it would be remiss to overlook academic commentaries (which Saini J “put aside” in his lucid elucidation of the law on ouster clauses in England and Wales) which have questioned the empirical basis behind the Government’s reform of Cart judicial reviews, in particular the assertion that there was a disproportionate use of judicial resource for Cart, arising from there being too few successful Cart cases when seen against the number that are lodged (see, for example, here, here and here).

For those interested in the UK constitution, arguably the most significant point is how much the text of paragraph 52 of the Judge’s judgment (quoted above) mirrors the language used by Lord Sumption, dissenting, in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 (the most recent Supreme Court case discussing ouster clauses), who said:

“The rule of law applies as much to the courts as it does to anyone else, and under  our  constitution,  that  requires  that  effect  must  be  given  to  Parliamentary legislation.  In the absence  of a written  constitution capable of serving as a higher source of law, the status of Parliamentary legislation as the ultimate source of law is the foundation of democracy in the United Kingdom.”

It might usually be thought strange for a first instance judge to adopt the reasoning of (or at least paraphrase to similar effect) a dissenting appellate court judgment, but perhaps less so in the context of a marked shift in judicial approach in recent times.