Parekh v Upper Tribunal (Immigration & Asylum chamber) & Anor

Where the High Court refuses permission to apply for judicial review of an Upper Tribunal decision, Rule 52.15(1A) of the Civil Procedure Rules requires the Court of Appeal application for permission to appeal to be determined on paper. It therefore excludes a subsequent oral renewal. The specific rule prevails over general permission-to-appeal provisions. It is procedural and applies to proceedings current when it commenced, absent transitional provision. A pending litigant has no accrued right to oral renewal, and a mistaken refusal form cannot confer jurisdiction.

The applicant’s immigration appeal was dismissed by the First-tier Tribunal. Permission to appeal was refused twice by the Upper Tribunal. The High Court then refused permission to apply for judicial review, both on the papers and at an oral renewal. A Court of Appeal judge subsequently refused permission to appeal on the papers.

The applicant challenged the Deputy Master’s decision that Rule 52.15(1A) prevented any further oral hearing. The issues were whether the rule excluded oral renewal after a paper refusal and whether it applied where the judicial review claim had been issued before 1 October 2012.

Lord Justice Davis gave the judgment, with which Lord Justice Ryder and Lady Justice Hallett agreed. The application was refused.

1. Meaning of Rule 52.15(1A). Rule 52.3(4) contains a general right to request reconsideration at a hearing after permission to appeal has been refused on paper. Rule 52.16(6) is also general in scope. Rule 52.15(1A), however, specifically governs applications to the Court of Appeal where the High Court has refused permission to apply for judicial review of an Upper Tribunal decision. The specific provision takes precedence over the general provisions.
2. The direction that the application is to be “determined on paper without an oral hearing” naturally connotes finality. It excludes a subsequent oral hearing. The absence of an express provision equivalent to Rule 54.7A(8) does not alter that meaning, since Rule 54.7A concerns a different procedural situation and identical drafting was not required.
3. The rule was introduced against the background of R(Cart) v The Upper Tribunal [2011] UKSC 28, which recognised judicial review of otherwise unappealable Upper Tribunal decisions and referred to paper-based permission procedures. The White Book note could not determine the meaning of the rule. The court had to construe the language enacted, applying the caution expressed in Dexter v Hilder [1902] AC 474.
4. Temporal application. The amended rule was procedural. The ordinary presumption is that procedural changes apply from commencement to proceedings then current as well as to future proceedings. Applying the principle discussed in Wilson v First County Trust Limited (No. 2) [2003] UKHR 40, the rule therefore applied from 1 October 2012. The applicant had no accrued or vested substantive right to an oral renewal.
5. The observations in Sharma & Ors v Upper Tribunal [2012] EWHC 3930 (Admin) concerned Rule 54.7A, were obiter and arose without sustained argument. They did not determine the meaning or effect of Rule 52.15(1A). A mistaken standard refusal form could not confer jurisdiction which the rules did not provide.

The Court of Appeal had no further jurisdiction to entertain the permission application, and the paper refusal was final.

1. Court of Appeal (Civil Division): refused the application challenging the Deputy Master’s decision that no oral renewal was available under Rule 52.15(1A).
2. High Court, Administrative Court: Owen J refused permission to apply for judicial review on 6 June 2012. Hickinbottom J refused renewal at an oral hearing on 3 October 2012.
3. Upper Tribunal: permission to appeal was refused on the papers on 1 September 2011 and 23 December 2011.
4. First-tier Tribunal: the immigration appeal was dismissed on 28 June 2011.