Kuteh, R (on the application of) v Upper Tribunal Administrative Appeals Chamber

Judicial review of an Upper Tribunal refusal of permission to appeal is available only within the restricted framework identified in R (Cart) v Upper Tribunal; R (MR (Pakistan)) (FC) v Upper Tribunal (IAC) [2011] UKSC 28. A compelling reason may arise where there is an arguable serious procedural irregularity at first instance, even if the underlying appeal has limited prospects of success. Such a case may include an apparent failure to consider important evidence. At the permission stage, the Upper Tribunal should not simply reconstruct the likely effect of evidence apparently overlooked by the First-tier Tribunal. The proper opportunity to remedy a material procedural defect may require permission to appeal and, if appropriate, a rehearing or decision being remade.

This was a renewed application for permission to seek judicial review of two Upper Tribunal decisions refusing permission to appeal from a First-tier Tribunal decision. The First-tier Tribunal had upheld the claimant’s inclusion on statutory lists relating to suitability to work with children and vulnerable adults.

The claimant relied principally on an apparent failure by the First-tier Tribunal to consider the written evidence of an important eyewitness, Mr Buck, and on the Upper Tribunal’s subsequent attempt to assess the significance of that evidence while refusing permission to appeal. The central issue was whether those circumstances amounted to a compelling reason for judicial review under the restricted approach established in R (Cart) v Upper Tribunal; R (MR (Pakistan)) (FC) v Upper Tribunal (IAC) [2011] UKSC 28.

1. The renewed application was granted in relation to the Upper Tribunal decision of 11 January 2010. Permission to seek judicial review was granted on the principal ground relied upon. The court made no determination that the two additional grounds were arguable.

2. Following R (Cart) v Upper Tribunal; R (MR (Pakistan)) (FC) v Upper Tribunal (IAC) [2011] UKSC 28, judicial review of a refusal by the Upper Tribunal to grant permission to appeal is available only on the restricted basis applicable to a second appeal under CPR 52.13(2): an important point of principle or practice, or some other compelling reason. The adoption of that test is a rational and proportionate restriction on judicial review.

3. The guidance in Uphill (Widow & Administrator of the Estate of Malcolm Ernest Uphill) v BRB (Residuary) Ltd [2005] EWCA Civ 60 was applicable by analogy. A compelling reason may exist where there are good grounds for believing that the earlier hearing was rendered unfair by a serious procedural irregularity, even though the prospects of success on the underlying appeal are not high.

4. There was an arguable serious procedural irregularity. The First-tier Tribunal’s reserved decision meticulously addressed the evidence but made no reference to Mr Buck’s witness statement or incident report, although those documents had apparently been added to the bundle and contained evidence supporting the claimant’s account of self-defence. The Upper Tribunal recognised that the evidence had not been addressed, but attempted to reconstruct its possible significance when considering permission.

5. It was arguable that the Upper Tribunal should instead have granted permission so that the alleged first-instance defect could be examined through the appellate process. The Upper Tribunal had power, if an error of law were established, to remake the decision and could receive oral evidence. The judgment was highly fact-specific and permission to cite it was refused. Costs were costs in the case and standard directions were ordered.

1. High Court (Administrative Court): the renewed application for permission was granted on the principal ground.
2. High Court: Mitting J had previously refused permission on 17 February 2011 under the then-understood approach to review of Upper Tribunal permission decisions.
3. Upper Tribunal Administrative Appeals Chamber: permission to appeal from the First-tier Tribunal was refused, including after an oral renewal on 11 January 2010.
4. First-tier Tribunal, Health, Education and Social Care Chamber: the claimant’s appeals against inclusion on the relevant statutory lists were dismissed.