Abolaji Temitope Osefiso & Anor v The Secretary of State for the Home Department

A refusal by the Upper Tribunal of permission to appeal disposes of the proceedings before it. Apart from the power to set aside the decision for procedural irregularity under rule 43, the Tribunal cannot revisit it or entertain newly formulated grounds.

In a ‘Cart’ judicial review, the High Court must be satisfied either that the Upper Tribunal arguably erred in its response to the grounds placed before it, or that the new grounds were so obvious that the Upper Tribunal should have raised and considered them of its own motion. A later application to amend grounds cannot create jurisdiction in the Upper Tribunal before the refusal has been quashed.

The appellants, a Nigerian mother and her son, appealed against refusals of human rights claims. The First-tier Tribunal dismissed the appeals, finding that they did not satisfy paragraph 276ADE of the Immigration Rules and that removal would not breach article 8.

Permission to appeal was refused by both the First-tier Tribunal and the Upper Tribunal. The appellants then brought ‘Cart’ judicial review proceedings, advancing grounds which had not been put to the Upper Tribunal, including alleged application of the wrong test under paragraph 276ADE(1)(vi) and failure to take account of earlier grants of leave. The High Court granted permission and subsequently quashed the refusal of permission to appeal. The central issues were the effect of the earlier Upper Tribunal refusal and the circumstances in which new grounds could be raised in ‘Cart’ judicial review proceedings.

1. Effect of refusal of permission. A decision of the Upper Tribunal refusing permission to appeal disposes of the proceedings before it. Subject only to rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Tribunal becomes functus officio and cannot review or vary the decision. A further application cannot be used to evade that restriction: Patel & Ors v Secretary of State for the Home Department [2015] EWCA Civ 1175 was applied. The only available set-aside route requires procedural irregularity, which was absent here.
2. Scope of ‘Cart’ review. Under CPR 54.7A(7)(a), the High Court must identify an arguable legal error in the Upper Tribunal’s response to the grounds actually advanced. Where the judicial review grounds were not before the Upper Tribunal, the court must instead be satisfied that they were so obvious that the Tribunal should have raised them of its own motion and that its failure to do so was arguably unlawful. This was the principle explained in MA (Cart JR: effect on UT processes) Pakistan [2019] UKUT 353 (IAC).
3. The attempted application to amend the grounds, made after the refusal of permission but before the High Court’s decision, could not confer jurisdiction on the Upper Tribunal or relieve the appellants of the need to establish a proper ‘Cart’ case. The relevant guidance in MA (Cart JR: effect on UT processes) Pakistan concerned amendment after a refusal had been quashed and did not justify the appellants’ earlier step.
4. After the High Court quashed the refusal, the Upper Tribunal was entitled to consider the new grounds. The complaint that the First-tier Tribunal had applied an “insurmountable obstacles” test instead of the “very significant obstacles” test in paragraph 276ADE(1)(vi) was a point the Upper Tribunal should have considered of its own motion. The errors were material. The First-tier Tribunal decision was set aside and the appeals were remitted for a complete rehearing.

The second appellant remained anonymous under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

• First-tier Tribunal: Appeals dismissed by First-tier Tribunal Judge S J Clarke on 8 August 2019.
• Upper Tribunal: Permission to appeal refused on 6 January 2020.
• High Court: Permission for ‘Cart’ judicial review was granted and the refusal of permission was quashed.
• Upper Tribunal: Appeal allowed. The First-tier Tribunal decision was set aside and the appeals were remitted for rehearing.