Last week, while I was away, the Supreme Court held that the Upper Tribunal can be judicially reviewed, and in much wider circumstances than envisaged previously by the High Court and the Court of Appeal. For England and Wales the case is Cart and MR (Pakistan) [2011] UKSC 28 and for Scotland it is Eba v Advocate General for Scotland [2011] UKSC 29.

This is extremely important in immigration and asylum cases. Where an appeal fails in the First Tier Tribunal, permission is sought from the FTT to appeal to the Upper Tribunal and refused and then sought from the UT and again refused, there was until last week no real remedy. It was the end of the line. The Supreme Court has now held that there is one further remedy available, which is an application to judicially review the Upper Tribunal’s decision to refuse permission to appeal to itself.

The rationale for widening the possibilities for judicial review of the Upper Tribunal is an interesting one, and reflects the serious concerns of many claimant lawyers:

43 … As a superior court of record, the Upper Tribunal is empowered to set precedent, often in a highly technical and fast moving area of law. The judge in the First-tier Tribunal will follow the precedent set by the Upper Tribunal and refuse permission to appeal because he is confident that the Upper Tribunal will do so too. The Upper Tribunal will refuse permission to appeal because it considers the precedent to be correct. It may seem only a remote possibility that the High Court or Court of Appeal might take a different view. Indeed, both tiers may be applying precedent set by the High Court or Court of Appeal which they think it unlikely that a higher court would disturb. The same question of law will not reach the High Court or the Court of Appeal by a different route. There is therefore a real risk of the Upper Tribunal becoming in reality the final arbiter of the law, which is not what Parliament has provided. Serious questions of law might never be “channelled into the legal system” (as Sedley LJ put it at para 30) because there would be no independent means of spotting them. High Court judges may sit in the Upper Tribunal but they will certainly not be responsible for all the decisions on permission to appeal, nor is it possible for the Upper Tribunal to review its own refusals, even when satisfied that they are wrong in law.

This is particularly so in immigration and asylum cases where various control mechanisms are used by the Upper Tribunal on itself and on the First Tier, including the self-selection of reported cases with no independent input, the starred determination system, the Country Guideline system and the terms of the practice direction on use of judicial authorities.

However, the Supreme Court does not propose a return to the system of full judicial review in existence before so-called ‘statutory review’ was introduced in 2002 in immigration and asylum cases. The rational is again very interesting and is specific to immigration and asylum cases:

47. But it is impossible to leave out of account the reasons why those statutory reviews were introduced. It is not difficult to dress up an argument as a point of law when in truth it is no more than an attack upon the factual conclusions of the first instance judge. In most tribunal cases, a claimant will have little to gain by pressing ahead with a well-nigh hopeless case. He may have less money than he otherwise would, but he will not have to leave the country and may make another claim if circumstances change. But in immigration and asylum cases, the claimant may well have to leave the country if he comes to the end of the road. There is every incentive to make the road as long as possible, to take every possible point, and to make every possible application. This is not a criticism. People who perceive their situation to be desperate are scarcely to be blamed for taking full advantage of the legal claims available to them. But the courts’ resources are not unlimited and it is well known that the High Court and Court of Appeal were overwhelmed with judicial review applications in immigration and asylum cases until the introduction of statutory reviews.

The Supreme Court therefore imposes what they call the ‘second tier appeal criteria’ for judicial reviews of the Upper Tribunal: whether (a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason for the relevant appellate court to hear the appeal (see section 13(6) of the Tribunals, Courts and Enforcement Act 2007). This is said to be ‘a rational and proportionate restriction upon the availability of judicial review of the refusal by the Upper Tribunal of permission to appeal to itself’. Further, the Civil Procedure Rules Committee is invited by the Court to consider the scope for stream-lining the procedure for considering applications for permission to apply for judicial review of these decisions. It is therefore likely that something akin to the papers-only process for statutory review will be re-introduced. Lady Hale says this at paragraph 58:

I agree with Lord Phillips that it would be totally disproportionate to allow the four stage system of paper and oral applications to both the High Court and the Court of Appeal in such cases. The previous procedures for statutory reviews in immigration and asylum cases showed that there is nothing inherently objectionable in a paper procedure, particularly if there has been an oral hearing of the first application for permission to appeal. But, in agreement with Lord Clarke, it seems to me that this is a matter for the rules committee rather than for this Court to determine.

What does this mean in an immigration context?

1. If a claimant loses in the First Tier Tribunal, the FTT refuses permission to appeal to the Upper Tribunal and the UT then also refuses permission to appeal to itself, an application for judicial review of the UT decision can then be made.

2. To succeed, such an application will need to demonstrate an error of law that raises an important point of principle or practice or show some other compelling reason for the case to be heard.

3. It is likely that some sort of streamlined process for consideration of these judicial reviews will be introduced, similar to the ‘statutory review’ process that existed between 2002 and 2010 in immigration and asylum cases. The main features of that old system were a short deadline for making the application and the consideration of the application on the papers only, with no possibility of an oral hearing. However, these restrictions were effected by primary legislation, and the CPR committee may not feel enabled to introduce similarly draconian measures without the imprimatur of an Act of Parliament.

4. Anyone with cases where a judicial review of an Upper Tribunal decision to refuse permission to appeal to itself was contemplated but not pursued because the criteria established by the High Court and Court of Appeal were too severe should think again and decide whether there is merit in making such an application. I can think of at least one such case I dealt with recently. At the moment the normal process for lodging an application for judicial review will apply. One would expect the three month deadline to be waived where a potential claimant held off making an application because the established law at the time was unfavourable.

Old hands at this — which increasingly includes myself, I suppose — will marvel at the turning of the wheel and the fact that we are now basically back where we started in 2002 but with two stages of seeking permission to appeal from an initial tribunal decision as well as the possibility of judicial review of the senior tribunal’s refusal of permission.