Khan, R (On the Application Of) v Secretary Of State For The Home Department & Anor

Judicial review of a non-appealable Upper Tribunal decision must be conducted within the strict framework established by Cart v The Upper Tribunal [2011] UKSC 28 and PR (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 988. Grounds must identify an important point of principle or practice, or another compelling reason with a high prospect of success. They must be focused, prompt and complete. A claimant must challenge every independent basis for the refusal of permission. Late reformulation, excessive documentation, or repetition of merits arguments will not ordinarily justify permission. The four claims were dismissed or refused because they disclosed no arguable error of law or qualifying second-appeal ground.

Four linked applications for judicial review challenged refusals by the Upper Tribunal (Immigration and Asylum Chamber) to grant permission to appeal. The claims concerned, respectively, the treatment of Article 8 evidence, late additional grounds under section 120 of the Nationality, Immigration and Asylum Act 2002, an alleged failure by a senior immigration judge to consider material grounds, and the assessment of psychiatric evidence and delay.

The court gave practical guidance on the presentation and management of such claims following Cart [2011] UKSC 28 and PR (Sri Lanka) [2011] EWCA Civ 988, then determined each application on its own facts.

1. Applicable framework. The reviewability and broad principles governing challenges to non-appealable Upper Tribunal decisions had been settled by Cart [2011] UKSC 28. The second-appeal test, including the limb of another compelling reason, was authoritatively explained in PR (Sri Lanka) [2011] EWCA Civ 988.
2. Procedural guidance. Applications must use the correct second-appeal formulations, be brought promptly, and present the grounds succinctly and in focused form. Any application to amend must identify the points said to justify permission. The supporting bundle should contain only the documents necessary to understand the issue. Late skeleton arguments will not ordinarily cure defective grounds. Where refusal rested on several freestanding reasons, each must be successfully challenged.
3. Khan. The immigration judge had considered the evidence concerning the claimant’s medical employment and the public-interest factors relevant to Article 8. The complaint was no more than disagreement with the weight given to that evidence. It disclosed neither another compelling reason nor a realistic prospect of success, and the renewed application was refused.
4. Jassi. The immigration judge was entitled to refuse to entertain a late statement of additional grounds where directions required material to be filed and served within a specified period. The unchallenged independent finding that the renewed application was out of time was itself decisive. AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076 did not require the Tribunal to treat the late Tier 1 case as a reformulation of the original Tier 4 appeal. AQ (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 833 did not assist because the later material was being advanced as a new application before the Tribunal.
5. Olawoyin and R. In Olawoyin, any omission by the first senior immigration judge was cured when the second considered the grounds and reached an independent conclusion; a minor misunderstanding about the claimant’s identity-related conduct did not affect the outcome. In R, the delay in bringing proceedings was unexplained and excessive. The immigration judge had been entitled to assess the psychiatric evidence against the claimant’s interviews, witness evidence and credibility. The claim therefore disclosed no qualifying compelling reason.
6. All four applications were dismissed or refused. Existing costs orders were preserved, a £90 costs order was made in Khan, and the judgment was released for citation.

Not an appeal. The judgment concerned four first-instance judicial review applications challenging refusals of permission to appeal by the Upper Tribunal (Immigration and Asylum Chamber).