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Challenging a refusal of permission to appeal by the Upper Tribunal
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This piece started life as a practice note for welfare benefits cases but the same principles are transferrable to the immigration jurisdiction so we thought it would be helpful to share it here on Free Movement as well.
If permission to appeal against a decision of a First-tier Tribunal in a welfare benefits case is refused by the Upper Tribunal (Administrative Appeals Chamber), then the claimant will not be able to appeal that decision. This is because it is an excluded decision under s. 13(8)(c) of the Tribunals, Courts and Enforcement Act 2007, and the Upper Tribunal has no jurisdiction to review its refusal of permission by virtue of s.10(1) and s.13(8)(d)(i) of the 2007 Act. This means the only remedy available is by way of judicial review (Samuda v Secretary of State for Work and Pensions  EWCA Civ 1). The deadline for applying for judicial review against a refusal of permission by an Upper Tribunal is 16 days. CPR rule 54.7A(3).
While there is also provision for the Upper Tribunal to set aside its decision based on a procedural irregularity before it under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI: 2698), the circumstances in which this rule will succeed are extremely limited. Moreover, where the claimant decides to make a set aside application to the Upper Tribunal, there is no provision to disapply the 16-day deadline for applying to the High Court for judicial review.
The legal test for permission
The legal test for judicial review of an Upper Tribunal’s decision to refuse to grant permission to appeal to itself was considered by the Supreme Court in R (Cart) v The Upper Tribunal and ors  UKSC 28. The Court decided that the ‘second appeals test’ would provide a proportionate check, and the test is now part of the Civil Procedure rules under CPR rule 54.7A. These are different from the normal rules for judicial review in so far as:
- the usual deadline of 3 months is reduced to 16 days (54.7A(3);
- a higher threshold applies: (54.7A(7); and
- there is no right to an oral renewal of the application: (54.7A(8).
The following checklist sets out the factors that need to be considered to determine whether the CPR 54.7A requirement has been met in a particular case:
(1) Is there an arguable case which has a reasonable prospect of success?
(2) Does the appeal raise an important point of principle?
(i) Is it an issue where the outcome is capable of benefiting others besides the claimant?
(ii) Is it an issue on which there is no decided authority or where the authorities disagree?
(3) Or is there some other compelling reason to allow the appeal to proceed?
(i) Is the decision ‘perverse or otherwise plainly wrong’?
(ii) Has there been a procedural irregularity amounting to a ‘fundamental unfairness’?
For further judicial guidance on the Cart criteria see:
- Paragraphs 130-131 of Lord Dyson SCJ’s judgment in R(Cart) v the UT  UKSC 28;
- Paragraph 35 of Carnwarth LJ’s (as he then was) judgment in PR (Sri Lanka) v the SSHD  EWCA Civ 988;
- Paragraphs 11 to 32 of Sullivan LJ’s judgment in JD (Congo) & Ors v Secretary of State for the Home Department & Anor  EWCA Civ 327.
If the application for permission to judicial review the Upper Tribunal’s decision is refused an appeal is made to the Court of Appeal, the legal test for permission is the same, namely (i) does the appeal raise an important point of principle or practice? or (ii) is there some other compelling reason for the Court of Appeal to hear it (CPR rule 52.13)?
Judicial review remains in scope under paragraph 19(2)(a) of Schedule 1, Part 1 to LASPO. Accordingly, work done on a public law challenge by way of judicial review of an Upper Tribunal’s decision to refuse permission comes under the Public Law category. Otherwise, the work can be covered by the Immigration Law category, in so far as the public law challenge “relates to the underlying substance of the case”: see Category Definitions in the Standard Civil Contract 2013, Category Definitions paragraph 13.
However, from 22 April 2014, work done on an application for permission for judicial review will not be paid unless the Court grants permission for the application to proceed, subject to a discretionary payment by the Legal Aid Agency (The Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 (SI 607). It should be noted that this does not affect work done prior to the issuing of proceedings, such as advising on the merits.
The main steps involved in making an application for permission to apply for judicial review of a refusal of permission to appeal by the Upper Tribunal are set out below.
Before the proceedings are issued
Proceedings must be commenced within 16 days (instead of the usual deadline of 3 months (Civil Procedure Rules CPR rule 54.7A(3)). There is no need to comply with the pre-action protocol as the defendant – the Upper Tribunal – does not have the legal power to change the decision being challenged (see above and paragraph 6 of the judicial review pre-action protocol). The Secretary of State for Work and Pensions (or HM Revenue and Customs in the case of Tax Credits or Child Benefit) should be named as an interested party.
If the deadline has been missed, then reasons for the delay in lodging the claim need to be provided in the application to persuade the Court to extend the deadline because there is a reasonable excuse for the delay. Difficulties in obtaining public funding or any difficulties the claimant may have in accessing specialist advice may justify an extension of time; but delay on the part of the claimant’s lawyers that cannot be explained will not (see Andrew Finn-Kelcey v Milton Keynes Council  EWCA Civ 1067, at -).
The Upper Tribunal will be the ‘defendant’ in the action but will normally take no part in the proceedings. The Secretary of State for Work and Pensions should be added as an ‘interested party’.
Lodging the claim at Court
When the application for permission to apply for Judicial Review is ready it should be lodged at the Administrative Court Office – which will normally be in London (unless the Upper Tribunal was sitting in one of the regions, e.g. Cardiff).
The Court Office will only accept the application if there is a claim form (Form N461) (with copies so these can be served on the defendant and the interested party) and a permission bundle (see CPR Part 54.6 and Practice Direction 54A, para 5.9). A court fee (currently £140.00) is also payable.
After the claim has been lodged
After the claim has been lodged with the Administrative Court, a sealed copy of the claim form (and accompanying documents) must be served on the defendant and the interested party within 7 days of the date of issue (i.e. the date shown on the court seal).
When the interested party has been served with the claim form they should file an acknowledgment of service (Form N462) in the Administrative Court Office, within 21 days of the proceedings being served upon them.
After the decision on permission has been made
The application for permission to proceed with the claim for judicial review is then considered by a single judge on the papers.
If the application for permission is successful, then the decision will be quashed after 14 days by operation of CPR rule 54.7A(9)) and the appeal will then proceed in the Upper Tribunal in the normal way:
(9) If permission to apply for judicial review is granted –
(a) if the Upper Tribunal or any interested party wishes there to be a hearing of the substantive application, it must make its request for such a hearing no later than 14 days after service of the order granting permission; and
(b) if no request for a hearing is made within that period, the court will make a final order quashing the refusal of permission without a further hearing.
If the application for permission is refused, as there is no right to an oral renewal of the application (CPR rule 54.7A(8)), the only other remedy available is to apply for permission to appeal to the Court of Appeal. The deadline for an appeal against a refusal of permission is 7 days (CPR rule 52.15(c), Practice Direction 52C, para 5A).
For further general guidance on the procedure for judicial review see:
- Administrative Court Guidance Notes on Applying for Judicial Review – click here.
- Guidance Notes on Completing the Judicial Review Claim (Form N462), April 2013 – click here.
The general rule as to costs is that the unsuccessful party will be ordered to pay the costs of the successful party (CPR rule 44.3(2)(a)). However, no order for costs will usually be made against the Upper Tribunal if it takes no part in the proceedings (R (Davies (No 2) v HM Deputy Coroner for Birmingham  EWCA Civ 207, para ). On the other hand, an interested party will normally be ordered to pay the claimant’s costs if they opposed the application for judicial review (R v Hastings Licensing Justices Ex p. John Lovibond & Sons  1 WLR 735, cited in Davies (No 2), at para .