Cart & Ors, R (on the application of) v The Upper Tribunal & Ors

The statutory description of a body as a superior court of record does not, without clear and explicit words, exclude judicial review. Reviewability depends on the court’s jurisdiction, powers and relationship with the High Court. A court of limited jurisdiction will generally remain reviewable for excess of jurisdiction, including material legal error, unless it is so closely equivalent to the High Court that review is inappropriate. The Upper Tribunal is such an alter ego and is not reviewable for ordinary legal error, subject only to the theoretical possibility of review for a wholly exceptional excess beyond its statutory remit or a substantial denial of a fair hearing. The Special Immigration Appeals Commission is reviewable in both senses of excess of jurisdiction, although review of its appealable determinations is ordinarily inappropriate and review of bail decisions requires a sharp-edged error of law. Article 5(4) requires sufficient disclosure to enable effective instructions to a special advocate.

Three linked judicial review claims concerned decisions of SIAC and the Upper Tribunal. U challenged the revocation of bail; XC challenged the refusal of bail. Mr Cart challenged the Upper Tribunal’s refusal of permission to appeal on one ground concerning child maintenance.

The defendants argued that SIAC and the Upper Tribunal were immune from judicial review because each was designated a superior court of record. Alternatively, they argued that review should be available only in rare and exceptional cases. U and XC also contended that reliance on wholly closed material breached Article 5(4) of the Convention.

The court had to determine the proper scope of the High Court’s supervisory jurisdiction over the two bodies and, in the SIAC claims, whether the procedural standard required by Article 5(4) was met.

1. Statutory exclusion. Sections 1(3) of the Special Immigration Appeals Commission Act 1997 and 3(5) of the Tribunals, Courts and Enforcement Act 2007 did not exclude judicial review. Such an exclusion required the clearest and most explicit words. The expression “superior court of record” was not a reliable definition of immunity from review.

2. Relevant common-law principle. The distinction which principally explains reviewability is between courts of limited and unlimited jurisdiction. The High Court, as a court of unlimited jurisdiction and an authoritative source of statutory interpretation, is not subject to judicial review. A body of limited jurisdiction will generally be reviewable unless its status is so closely equivalent to the High Court that review would be inappropriate.

3. SIAC. SIAC was reviewable for excess of jurisdiction both where it travelled beyond its statutory subject-matter and where, within that field, it made a legal error for which it was not the final judicial authority. Section 1(4) of the 1997 Act was also ineffective as a no-certiorari clause. Judicial review was not a surrogate appeal. Review of appealable SIAC determinations would ordinarily be refused in the exercise of discretion, and review of bail decisions required a sharp-edged error of law.

4. Upper Tribunal. The Upper Tribunal’s wide appellate jurisdiction, its judicial review jurisdiction under sections 15 to 21 of the 2007 Act, its composition and its position at the apex of the tribunal structure made it an alter ego of the High Court. It was therefore not amenable to judicial review for an ordinary legal error within its statutory field. A wholly exceptional excess beyond its statutory remit, or a substantial collapse of fair procedure, might theoretically justify review. Mr Cart’s challenge did not fall within either category.

5. Article 5(4). The Strasbourg decision in A and others v United Kingdom and the House of Lords decision in Home Secretary v AF (No 3) required that, where full disclosure was impossible, the detainee receive sufficient information about the allegations to enable effective instructions to the special advocate. That was a core minimum applicable even outside detention cases. The distinctions relied on by SIAC were legally unsustainable.

6. Disposition. Mr Cart’s application was dismissed. The applications by U and XC succeeded, subject to submissions on the appropriate orders.

This was a first-instance decision of the Divisional Court determining three linked judicial review claims. The judgment records earlier decisions by SIAC, the Upper Tribunal and Mitting J, but no separate appellate stage for the present claims.