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

Judicial review remains available against an Upper Tribunal refusal of permission to appeal. The designation of that tribunal as a superior court of record does not oust the High Court’s supervisory jurisdiction.

Permission for such judicial review should, however, be restricted by the second-tier appeal criteria. The proposed challenge must raise an important point of principle or practice, or there must be some other compelling reason for the court to hear it. This proportionate restriction preserves external scrutiny of significant legal errors without duplicating the tribunal appeal structure. The same approach applies across all tribunal jurisdictions, including immigration and asylum.

R (Cart) v The Upper Tribunal and R (MR (Pakistan)) v The Upper Tribunal concerned refusals by the Upper Tribunal to grant permission to appeal from first-instance tribunal decisions.

In Cart, the Divisional Court dismissed the judicial review claim: [2009] EWHC 3052 (Admin); [2010] 2 WLR 1012. The Court of Appeal dismissed the appeal: [2010] EWCA Civ 859; [2011] 2 WLR 36. In MR, the High Court followed Cart and dismissed the claim: [2010] EWHC 3558 (Admin). A leapfrog appeal followed.

The common issue was the extent to which the High Court may judicially review an unappealable refusal of permission by the Upper Tribunal established under the Tribunals, Courts and Enforcement Act 2007.

Appeals dismissed unanimously. Lady Hale delivered the leading judgment. Lord Phillips, Lord Hope, Lord Rodger, Lord Brown, Lord Clarke and Lord Dyson agreed with the disposition and the adoption of the second-tier appeal criteria.

1. The Tribunals, Courts and Enforcement Act 2007 does not oust judicial review of unappealable Upper Tribunal decisions. Clear statutory language would be required to exclude the High Court’s historic supervisory jurisdiction. The designation of the Upper Tribunal as a superior court of record was insufficient.

2. The narrow approach adopted below—restricting review to jurisdictional error in the pre-Anisminic sense, a fundamental denial of justice or similarly exceptional circumstances—provided inadequate protection. It risked leaving serious errors of law uncorrected and reviving an artificial distinction between jurisdictional and other errors. Specialist tribunal precedent might otherwise become effectively immune from scrutiny.

3. Unrestricted judicial review was also inappropriate. The integrated two-tier tribunal system offers repeated opportunities for scrutiny and possesses substantial expertise and judicial standing. The rule of law does not require unlimited duplication of judicial processes, particularly when judicial resources are finite.

4. The rational and proportionate solution was to apply the criteria governing second-tier appeals. Judicial review of an Upper Tribunal refusal of permission to appeal should therefore be available only where the proposed challenge raises an important point of principle or practice, or where another compelling reason requires the court to hear it. The first limb protects against important legal errors becoming entrenched. The second can encompass a strongly arguable exceptional collapse of fair procedure or an error producing truly drastic consequences.

5. The unified tribunal structure requires the same approach in every jurisdiction. Immigration and asylum cases do not retain a separate historical entitlement to broader judicial review, although the seriousness of an individual’s consequences may satisfy the compelling-reason limb.

6. Neither Cart nor MR satisfied the criteria. The relevant alleged errors could not have affected their respective tribunal outcomes. Their appeals were therefore dismissed, although the Supreme Court rejected the legal test applied by the courts below.

The Court considered the ordinary four-stage permission procedure disproportionate for this class of claim, but left procedural streamlining to the Civil Procedure Rule Committee.

• United Kingdom Supreme Court: The appeals in R (Cart) v The Upper Tribunal and R (MR (Pakistan)) v The Upper Tribunal were dismissed unanimously, but on the second-tier appeal criteria rather than the exceptional-circumstances test: [2011] UKSC 28.
• Court of Appeal: Cart’s appeal was dismissed. The court held that judicial review was confined to narrow jurisdictional error or denial of fundamental justice: [2010] EWCA Civ 859; [2011] 2 WLR 36.
• High Court, Divisional Court: Cart’s judicial review claim was dismissed on the basis that review was available only in exceptional circumstances: [2009] EWHC 3052 (Admin); [2010] 2 WLR 1012.
• High Court: MR’s claim was dismissed in accordance with the Court of Appeal’s decision in Cart. A certificate enabled a leapfrog appeal: [2010] EWHC 3558 (Admin).
• Upper Tribunal: Cart’s substantive appeal was dismissed and permission to reopen a fourth ground was refused: [2009] UKUT 62 (AAC). The Upper Tribunal also refused MR permission to appeal.