Singh, R (On the Application Of) v The Secretary of State for the Home Department

The Upper Tribunal may set aside a permission decision made without hearing a party who was entitled to be heard, where the absence resulted from mistake, and may re-list the application. Under section 25 of the Tribunals, Courts and Enforcement Act 2007, it has the same powers as the High Court in matters incidental to its functions. That supplementary power is not displaced by the narrower statutory review regime or Tribunal Procedure Rules unless an express limitation applies. Patel did not establish a general absence of section 25 power.

The appellant, an Indian national who had remained unlawfully in the United Kingdom, sought judicial review of refusals to grant leave to remain on family and private life grounds. The Upper Tribunal initially granted permission in the respondent’s absence, but set that decision aside after discovering a misunderstanding and re-listed the application. The High Court refused permission to challenge that step. On a fresh hearing, the Upper Tribunal refused permission to bring judicial review proceedings.

The appeal concerned whether the Upper Tribunal had power to set aside its initial grant of permission and re-list the matter, despite the limited statutory review power and the Tribunal Procedure Rules.

1. Disposition. The appeal was dismissed. The Upper Tribunal had acted within its powers when it set aside the grant of permission and re-listed the application.
2. The procedural objections did not require the court to exercise a discretion in the appellant’s favour. The order of Edis J had not been appealed and, unless set aside, prevented the appellant from arguing that the later Upper Tribunal decision was itself incompetent. The court nevertheless addressed the underlying question for clarity about the Upper Tribunal’s powers.
3. If the proceedings had been in the High Court, CPR 23.11(2) and the High Court’s inherent jurisdiction would have permitted the order made in the absence of a party to be set aside and the application to be re-heard. CPR 54.13 did not prevent the exercise of that inherent power where an interested party had not had a fair opportunity to be heard. That conclusion reflected the fundamental common-law right to participate in proceedings in accordance with natural justice, as recognised in Al Rawi v Security Service [2011] UKSC 34.
4. Section 25 of the Tribunals, Courts and Enforcement Act 2007 gives the Upper Tribunal the same powers as the High Court in relation to matters incidental to its functions. Dealing with judicial review applications, including deciding whether to grant permission, is such a function. The provision should be read literally and generally. The Upper Tribunal therefore had the corresponding power to set aside a permission decision made without a fair opportunity to be heard. The Tribunal Procedure Rules contained no express limitation on that power.
5. The section 10 review power was not the Upper Tribunal’s only power to set aside and remake decisions. Rules 45 and 46 confined review under section 10 to specified permission-to-appeal circumstances, but did not limit the separate supplementary power under section 25. The existence of other powers in rules 6(5) and 43 reinforced that conclusion.
6. Patel v Secretary of State for the Home Department [2015] EWCA Civ 1175 was concerned with different circumstances and did not decide that section 25 powers were unavailable. The broader interpretation placed on it in Jan v Secretary of State for the Home Department [2016] UKUT 00336 (IAC) could not be accepted.

1. Court of Appeal (Civil Division) — The appeal against the Upper Tribunal’s decision was dismissed: [2019] EWCA Civ 1014.
2. Upper Tribunal (Immigration and Asylum Chamber) — On 18 December 2015, following a fresh hearing, permission to bring judicial review proceedings was refused. The earlier grant of permission had been set aside and the application re-listed.
3. High Court — On 8 October 2015, Edis J refused permission to challenge the setting-aside decision and certified the claim totally without merit. No appeal was brought against that order.