Patel & Ors v The Secretary of State for the Home Department (Rev 1)

An oral grant by the Upper Tribunal of permission to appeal is an excluded decision under the Tribunals, Courts and Enforcement Act 2007. It takes effect when pronounced. The Upper Tribunal cannot review, vary or reverse it under section 10(1), even where it later identifies an issue about delay or procedural compliance.

A purported reversal remains effective unless quashed. Its proper challenge is ordinary judicial review, rather than the special Cart procedure. Undue delay may justify refusing permission or relief under section 31(6) of the Senior Courts Act 1981, but the court must assess substantial hardship, substantial prejudice and detriment to good administration. A serious jurisdictional error and an underlying arguable public-law issue may outweigh delay in an unusual case.

The applicants had leave to remain as Tier 4 migrants. The Secretary of State curtailed that leave after their educational institution lost its sponsor licence. The First-tier Tribunal held that it lacked jurisdiction to entertain an in-country appeal against the later removal decision. The applicants' successive applications for permission to appeal were late.

After an earlier judicial-review order had quashed a refusal of permission, Judge Ockelton in the Upper Tribunal orally granted permission to appeal. During the same hearing he revisited that ruling, refused to admit the late application and issued reasons for that refusal. The applicants sought to challenge the second ruling, alternatively by judicial review.

The central issues were whether the Upper Tribunal could retract its oral grant of permission, what form of judicial review was available, and whether relief should be refused because of delay.

Disposition

1. The court, acting as a Divisional Court, extended time, granted permission for judicial review and ordered that the Upper Tribunal's second ruling be quashed. The order was conditional on a judicial-review claim form being issued and served within 14 days. The appeal was remitted to the Upper Tribunal on the basis of the earlier grant of permission.

2. The first ruling was a decision on an application for permission to appeal under sections 11(4)(b) and 13(8)(c) of the Tribunals, Courts and Enforcement Act 2007. It was therefore an excluded decision. Section 10(1) prevented its review. In that context, review had a broad meaning and included revision, variation or reversal.

3. The decision took effect when Judge Ockelton announced it. Rule 22(2)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008 required written notice to the parties, but did not make written notice a condition of the decision's existence or finality. The judge-made rule concerning alteration of a High Court order before it is drawn up and perfected, considered in In re L and another, [2013] 1 WLR 634, did not displace the statutory scheme.

4. The purported second ruling was made without jurisdiction. Nevertheless, it remained extant unless set aside by a competent court. It was itself an excluded decision, so there was no statutory appeal to the Court of Appeal.

5. The challenge concerned the making of an ultra vires ruling, rather than the merits of a refusal of permission. It therefore had to be brought by ordinary judicial review under CPR Part 54.5, not the Cart procedure in CPR Part 54.7A. A formal claim form was required.

6. There had been undue delay. However, the Secretary of State would suffer neither substantial hardship nor substantial prejudice, and any detriment to good administration was insufficient. The jurisdictional error and the reasonably arguable underlying public-law issue outweighed the procedural defaults in the exceptional circumstances.

• Court of Appeal (Civil Division), acting as a Divisional Court: Extended time, granted permission for judicial review, quashed the Upper Tribunal's second ruling and remitted the appeal to the Upper Tribunal.

• Upper Tribunal (Immigration and Asylum Chamber): Judge Ockelton orally granted permission to appeal on 4 August 2014, but later refused to admit the application and purported to reverse that grant in reasons promulgated on 19 August 2014.

• First-tier Tribunal: Held that it had no jurisdiction to entertain an in-country appeal against the removal decision.