Patel & Ors, R (on the application of) v Upper Tribunal (Immigration & Asylum Chamber) & Ors

Permission for judicial review of an Upper Tribunal refusal to grant permission to appeal is subject to the stringent second-tier test. Permission should be granted only where the alleged error of law raises an important issue of principle or there is some other legally compelling reason for the matter to be heard. The latter exception is narrow. It may include a plainly wrong or perverse decision, or a serious procedural failure resulting in an unfair hearing. A merely strongly arguable error, or consequences that are compelling only in political or emotional terms, is insufficient. The court must also consider whether an arguable error was immaterial because the tribunal reached the same lawful conclusion through an alternative route.

The claimants, Indian nationals comprising a married couple and their two sons, challenged the Upper Tribunal’s refusal of permission to appeal against the First-tier Tribunal’s dismissal of their appeals against immigration decisions.

The First-tier Tribunal arguably erred in finding that removal did not engage Article 8, but proceeded to consider proportionality on the assumption that Article 8 was engaged. The claimants argued that the assessment insufficiently recognised the sons’ formative years in the United Kingdom. The issue was whether that alleged error satisfied the second-tier judicial review test.

1. Application refused. The claimants could not satisfy the test in R (Cart) v Upper Tribunal [2011] 3 WLR 107. The alleged errors did not involve an important issue of principle and there was no other compelling reason for judicial review.
2. The guidance in PR (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 988 established that the exception was narrow. Prospects of success would normally need to be very high, or the case must clearly call for consideration by the court. A plainly wrong or perverse decision, or a wholly exceptional collapse of fair procedure, could qualify. “Compelling” meant legally compelling, rather than merely politically or emotionally compelling.
3. JD (Congo) v Secretary of State for the Home Department [2012] EWCA Civ 327 did not alter the principles in Cart or PR (Sri Lanka). Its more flexible approach arose in the different context of an appeal from the Upper Tribunal to the Court of Appeal.
4. The First-tier Tribunal had arguably erred in its initial conclusion that Article 8 was not engaged and might also have given insufficient weight to the sons’ formative years in the United Kingdom. Nevertheless, it had proceeded to apply the five-stage assessment identified in Razgar v Secretary of State for the Home Department [2004] UKHL 27, including proportionality. The alleged error therefore did not necessarily invalidate the determination.
5. The proportionality conclusion was not plainly wrong or perverse. Even applying the principles in Maslov v Austria [2009] INLR 47, success on the underlying appeal was not inevitable. The renewed application was accordingly refused.

1. First-tier Tribunal: Immigration Judge Lawrence dismissed the appeals under Article 8 ECHR and paragraph 395C of HC 395.
2. First-tier Tribunal: Senior Immigration Judge Taylor refused permission to appeal.
3. Upper Tribunal (Immigration and Asylum Chamber): Senior Immigration Judge Spencer refused permission to appeal on 22 September 2011.
4. High Court (Administrative Court): The renewed application for permission to apply for judicial review was refused.