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Helpful decision on Upper Tribunal appeals


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A bit of a shock to get a case that helps immigration lawyers but no complaints here! EH (PTA: limited grounds; Cart JR) Bangladesh [2021] UKUT 117 (IAC) confirms that a grant of permission to appeal by the Upper Tribunal, even on limited grounds, cannot be judicially reviewed. But where permission is granted, all grounds of appeal can be argued even if permission was only granted on some of those grounds.

The Civil Procedure Rules only permit a Cart (or Eba for those in Scotland) judicial review when permission is refused but not where it is granted (even if only on restricted grounds). Weirdly, if permission is granted on restricted grounds, unless a specific direction is made, the application for permission to appeal stands as the notice of appeal i.e. all grounds in the granted application can be argued (Rule 22(2)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008). And finally, even if a direction is pronounced, under Rule 5, an application can be made to amend, suspend, or set aside that direction.

The obvious advantages to parties are:

  1. not having to raise costly and time-consuming judicial review proceedings challenging partial grants of permission
  2. the process will generally be confined only to the Upper Tribunal, making it much more streamlined

Best have a copy of the judgment in hand when availing of it because it’s probably not going to be enthusiastically received by judges!

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Bilaal Shabbir

Bilaal Shabbir

Bilaal is an Advocate at the Scottish Bar and practises in both Scotland and Jersey, focusing on public law, commercial dispute resolution and offshore trust litigation. He is a Panel Member on the Football Association’s (FA) National Serious Case Panel.