Rana, R (on the application of) v Upper Tribunal (Immigration & Asylum) & Anor

A decision of the Upper Tribunal refusing permission to appeal from the First-tier Tribunal is amenable to judicial review only on the two restricted grounds identified in R (Cart) v Upper Tribunal: outright excess of jurisdiction and denial of procedural justice. The historical exception for asylum cases recognised in R (Sivasubramaniam) v Wandsworth County Court does not survive the coherent tribunal structure created by the Tribunals, Courts and Enforcement Act 2007. The scope of review is a matter of law, determined by Parliament’s intention in establishing that structure. The restricted grounds protect the boundaries of the appellate system without invading it.

The claimant sought judicial review of a decision by Ouseley J, sitting as a judge of the Upper Tribunal, refusing permission to appeal against the First-tier Tribunal’s dismissal of his asylum appeal. The Upper Tribunal concluded that the material issue was whether the claimant was a genuine convert to Christianity and that the question of treatment of a genuine convert did not arise.

The central issue was whether the historical asylum exception recognised in R (Sivasubramaniam) v Wandsworth County Court remained available after the introduction of the new tribunal structure under the Tribunals, Courts and Enforcement Act 2007, notwithstanding the Court of Appeal’s decision in R (Cart) v Upper Tribunal.

1. The claim raised only a preliminary issue. A decision of an Upper Tribunal judge refusing permission to appeal from the First-tier Tribunal is not amenable to judicial review except on the two grounds identified in R (Cart) v Upper Tribunal: outright excess of jurisdiction and denial of procedural justice.
2. No asylum exception survived. Although asylum appeals may involve fundamental rights, vulnerable appellants, complex law and serious consequences, those features do not justify preserving the historical exception recognised in R (Sivasubramaniam) v Wandsworth County Court. Other tribunal jurisdictions also involve vulnerable parties, fundamental rights and complex law.
3. Parliamentary intention governed the scope of review. The scope of judicial review was a matter of law, not merely discretion. The Tribunals, Courts and Enforcement Act 2007 created a new and coherent appellate structure, with expertise concentrated in the specialist Chambers. Judicial review had to secure that structure’s boundaries without invading it.
4. The previous statutory-review regimes under the Nationality, Immigration and Asylum Act 2002 and the Asylum and Immigration (Treatment of Claimants etc) Act 2004 had already curtailed the wider practice of judicial review in asylum appeals. The later transfer of the asylum jurisdiction into the new tribunal structure did not alter the applicable principle.
5. The preliminary issue was therefore answered in favour of the defendants. The court certified the point as one of law of general public importance under section 12 of the Administration of Justice Act 1969, enabling a possible leapfrog appeal.

1. Divisional Court: In R (Cart) v Upper Tribunal, [2009] EWHC 3052 (Admin), decisions of the Upper Tribunal were held amenable to judicial review on restricted grounds.
2. Court of Appeal: The decision in Cart was upheld, [2010] EWCA Civ 859, with the grounds confined to outright excess of jurisdiction and denial of procedural justice.
3. High Court (Administrative Court): The present court rejected the proposed asylum exception and applied the Cart approach.