Thapar v Upper Tribunal (Immigration Asylum Chamber)

Under the Cart approach, judicial review of an Upper Tribunal refusal of permission requires a very obvious error of law in the underlying decision or another compelling reason, together with a very high prospect of success in the proposed appeal. A tribunal’s assessment of whether domestic violence has been proved is ordinarily a finding of fact. In the absence of procedural irregularity, it cannot be challenged by appeal or by judicial review under that jurisdiction. An Article 8 decision may be reviewed where there has been a clear unlawful failure to consider a child’s best interests. Where the evidence shows that those interests were considered, no such error arises.

The applicant challenged the Upper Tribunal’s refusal of permission to appeal against a First-tier Tribunal decision. The First-tier Tribunal had dismissed her appeal against refusal of further leave to remain under paragraph 289 of the Immigration Rules, and had also rejected claims under Articles 6 and 8. The proposed appeal concerned whether she had established that she was a victim of domestic violence and whether the decision properly addressed the position of her infant son under Article 8. The application was a renewed application for permission to apply for judicial review of the Upper Tribunal’s refusal.

1. Application dismissed. The Upper Tribunal’s refusal of permission disclosed no arguable error of law.
2. The proposed appeal could proceed only if the stringent Cart threshold was met: there had to be a very obvious error of law in the First-tier Tribunal’s substantive decision, or another compelling reason for an appeal, and a very high prospect of success in that appeal.
3. The conclusion that domestic violence within the meaning of the Immigration Rules had not been proved was a finding of fact. It disclosed no error of law and, absent procedural irregularity, was not open to challenge by appeal or judicial review.
4. Earlier tribunal decisions were not binding or estoppels on domestic violence, but could carry evidential weight. The Immigration Judge had assessed the evidence independently.
5. The Article 8 challenge failed. Evidence concerning the applicant’s young son had been considered, even though it was not expressly set out in the decision. No clear unlawful failure to consider the child’s interests was established.
6. The costs order against the Upper Tribunal was revoked, and no £90 costs order was made in favour of the interested party.

1. First-tier Tribunal: dismissed the appeal on domestic-violence, Article 6 and Article 8 grounds.
2. First-tier Tribunal: refused permission to appeal on 9 January 2012.
3. Upper Tribunal: refused renewed permission to appeal on 31 January 2012.
4. High Court (Administrative Court): dismissed the renewed application for permission to apply for judicial review.