Court of Appeal finds jurisdiction in Cart judicial review under “natural justice exception”

The Court of Appeal has found that an error by the Upper Tribunal in failing to place a relevant document before the decision making judge brought the case within the very limited exceptions for a Cart judicial review to proceed. The substantive challenge, however, was dismissed. The case is R (Chowdhury) v Secretary of State for the Home Department [2025] EWCA Civ 656 and it also provides some useful guidance on the correct approach in these cases.

A Cart judicial review is where a challenge is brought against the Upper Tribunal’s decision to refuse permission to appeal. The judicial review is against the tribunal, however it does not take part in the proceedings, instead the Home Secretary does as an interested party. The ability to bring these challenges was severely restricted by the Judicial Review and Courts Act 2022, which inserted section 11A of the Tribunals, Courts and Enforcement Act 2007.

One of the limited ways that it is still possible to bring such a challenge is where the Upper Tribunal has acted “in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice” (s.11A(4)(c)(ii)). In this case, the court referred to this as “the natural justice exception”.

The Court of Appeal has previously dismissed an attempt to bring a case within these limited exceptions, in LA (Albania), R (on the application of) v The Upper Tribunal (Immigration & Asylum Chamber) [2023] EWCA Civ 1337. I think this may be the first judgment we have (in an immigration decision) where a Cart judicial review has been allowed to proceed on the basis of one of the exceptions. Someone will no doubt correct me if I’m wrong.

Background

The claimant (as she was referred to in the Court of Appeal’s decision) is a national of Bangladesh who came to the UK on a student visa on 15 February 2010. Her leave expired on 31 December 2013 and she has overstayed in the UK since then.

On 2 March 2020 the Home Office rejected an application made by the claimant to remain in the UK on human rights grounds. Her claim was based on her family life with her uncle, who was elderly with many medical issues and relied on the claimant to look after him. Her appeal against the refusal was dismissed by the First-tier Tribunal on 28 March 2022.

Permission to appeal was refused first by the First-tier Tribunal and then by the Upper Tribunal. Two weeks before the Upper Tribunal’s decision, the claimant’s solicitors sent to the tribunal “supplementary grounds of appeal” which sought permission to add a further ground of appeal.

The solicitors asked that the document be placed before the Upper Tribunal judge who was deciding the application to appeal. The tribunal responded with an acknowledgement, however the supplementary grounds were not placed before the Upper Tribunal judge.

On 6 December 2022 the claimant lodged an application for judicial review of the Upper Tribunal’s decision. It was argued that the tribunal’s omission to place the supplementary grounds before the judge amounted to a procedural defect and a fundamental breach of the principles of natural justice, bringing it within the limited exception in section 11A(4)(c)(ii).

Permission for the judicial review was refused on the papers on 9 August 2023 and at an oral hearing on 10 October 2023. The decision on the oral permission hearing was that there was no reasonable prospect of success that the decisions to refuse permission to appeal were wrong in law. The judge did not make a decision on whether the case fell within section 11A such that the court had jurisdiction.

The claimant appealed and on 28 May 2024 the Court of Appeal directed that a rolled up hearing be listed to consider both the matter of permission to appeal, and then the substantive appeal if permission was granted.

The Court of Appeal

The court summarised the issues as follows:

(A) Does the claim fall within section 11A (4) (c) (ii) of the 2007 Act (that is, the natural justice exception), so that the High Court has jurisdiction to entertain the challenge? If so:

(B) What is the test for deciding whether to grant permission to apply for judicial review?

(C) Should permission have been granted? 

The court made three preliminary points about the effect of s.11A(4). The first was that the subsection only applies where the refusal of permission was affected by one of the circumstances in s.11A(4). If an application for judicial review also alleges that there was another error of law not covered by that subsection, the High Court will not have jurisdiction to consider that.

The second preliminary point is that the test is not whether the circumstances in s.11A(4) apply “in fact” but whether the decision “involves or gives rise to any question” that they do. The court said that there must be “a realistically arguable case that one of the specified circumstances” applies. If there is, then the court will have jurisdiction. After that, permission for judicial review should be considered, “and if permission is granted then the relevant question will have to be decided at the substantive hearing”.

The third point was to reiterate that the decision on jurisdiction is separate to that of permission, and a positive decision on the first point will not necessarily mean that permission will be granted:

Although the “genuinely disputable question” and the “realistic arguability” criteria are substantially the same, it is well established that PTAJR may be refused on discretionary grounds even if there is a realistically arguable case that the defendant has acted unlawfully.

The court found that the tribunal’s failure to place the supplementary grounds before the judge amounted to a procedural defect. The Home Secretary made detailed submissions that this did not amount to a fundamental breach of the principles of natural justice, however the court held that there was a “genuinely debatable question whether by omitting to consider the Supplementary Grounds of Appeal the UT had acted in such a procedurally defective way as to amount to a fundamental breach of the principles of natural justice”.

The court said that the Upper Tribunal was correct to have decided the application for permission, although a positive finding on jurisdiction should have been made. The court concluded that the Upper Tribunal was correct to have refused permission for the judicial review on the basis that the family life ground did not have a real prospect of success, and so the appeal was dismissed.

Conclusion

This is a really useful and interesting case. Mistake like this do happen in the Upper Tribunal and hopefully this clear guidance will help more people to bring cases within the restrictions of s.11A(4).