Thangarasa, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor

In judicial review of an Upper Tribunal refusal of permission to appeal, the Cart criteria govern the permission stage only. Once permission for judicial review has been granted, they do not restrict the court’s substantive review. An arguable factual or legal error warrants permission only where it could arguably have affected the outcome; an error is immaterial where the result was inevitable or the decision was independently supported by substantial reasons. Specialist tribunal expertise is a relevant consideration. A tribunal need not mention every item of evidence, and an omission will not justify intervention where it could not arguably have altered the outcome.

The claimant sought judicial review of the Upper Tribunal’s refusal of permission to appeal against a First-tier Tribunal decision dismissing his appeal against refusal of asylum. He alleged that the First-tier Tribunal had misunderstood inconsistent accounts of how he was released from detention in Sri Lanka and had failed to address a consistent account given in his asylum interview.

Permission for judicial review was granted on the arguable basis that the second limb of the R (Cart) v Upper Tribunal criteria was satisfied. The central issues were whether those criteria restricted the substantive hearing and whether the alleged evidential error was arguably material.

1. Outcome. The claim for judicial review was dismissed. The Upper Tribunal had not applied the wrong test and was entitled to refuse permission to appeal.
2. Role of the Cart criteria. The Supreme Court’s criteria in R (Cart) v Upper Tribunal [2012] 1 AC 663 restrict the grant of judicial review permission in an appropriate Upper Tribunal case. Following R (HS and others) v Upper Tribunal [2012] EWHC 3126 (Admin), they have no continuing role at the substantive hearing once permission has been granted. Although the point had not been finally determined when permission was granted, it was appropriate to proceed on the favourable assumption that the criteria were satisfied.
3. Materiality. An arguable error of law must be capable of affecting the outcome. The Upper Tribunal may refuse permission on the ground that an alleged error is not arguably material where it is clear that the error could have made no difference. That approach was consistent with the applicable guidance and Anoliefo (permission to appeal) [2013] UKUT 00345 (IAC). The court also accepted the approach in ML (Nigeria) v SSHD [2013] EWCA Civ 844.
4. Application. The First-tier Tribunal was entitled to treat release on bail as materially inconsistent with the claimant’s written account that he had been released without charge after payment of a bribe. Any failure to mention the asylum-interview answer did not arguably affect the result. The rejection of the alleged 2010 detention rested on several independent grounds, including the claimant’s credibility, the complaint letter from the Human Rights Commission of Sri Lanka, and the medical evidence.
5. The specialist expertise of immigration judges was a relevant factor, as recognised in AH (Sudan) v SSHD [2008] 1 AC 678. The First-tier Tribunal had considered the evidence with care and was entitled to reach its conclusions.

• High Court (Administrative Court): The claim for judicial review of the Upper Tribunal’s refusal of permission to appeal was dismissed.
• Upper Tribunal (Immigration and Asylum Chamber): On 28 July 2011, Senior Immigration Judge Warr refused permission to appeal, adopting Judge Peart’s reasoning.
• First-tier Tribunal: Immigration Judge Omotosho dismissed the claimant’s asylum appeal in a decision dated 14 April 2011.