PB v The Secretary of State for the Home Department

A “Cart” judicial review is not a further opportunity to advance new grounds against a First-tier Tribunal decision. Where the judicial-review ground was not put to the Upper Tribunal in the permission application, it must be a Robinson-obvious point which the Upper Tribunal should have raised itself.

A decision made under unlawful fast-track rules is not automatically deprived of weight under the Devaseelan guidelines. The later decision-maker must determine whether the procedure was unfair in the individual case and whether that unfairness was caused by the risks created by those rules.

The appellant, a citizen of Cameroon, appealed against the First-tier Tribunal’s dismissal of his protection appeal. Permission to appeal was refused by both the First-tier Tribunal and the Upper Tribunal. Following “Cart” judicial-review proceedings, the appellant sought to amend his grounds before the Upper Tribunal.

The proposed grounds included a contention that the First-tier Tribunal had misread medical evidence concerning scarring. They also raised the effect of an earlier asylum decision made under the fast-track procedure on the application of the Devaseelan guidelines. The central procedural issue was whether new grounds could properly be advanced after the “Cart” process.

1. The appeal was allowed. The respondent accepted that the First-tier Tribunal had miscategorised the medical expert’s assessment of the appellant’s scarring. That error meant that its decision could not stand. The Tribunal set aside the decision in its entirety and remitted the appeal to the First-tier Tribunal for a fresh decision on all issues.

2. The Tribunal granted permission to amend the grounds in respect of grounds 1 to 4, but refused permission for further grounds 5 and 6. A party whose grounds have changed following a “Cart” judicial review must apply to amend the grounds before the Upper Tribunal. The favourable treatment of a ground in judicial-review proceedings does not automatically make it a ground of appeal.

3. Where a judicial-review ground was not included in the permission grounds considered by the Upper Tribunal, the challenge can succeed only if the point was one which the Upper Tribunal should have raised of its own motion. That is a more demanding requirement and calls for a Robinson-obvious error. The further proposed grounds were not of that character and allowing them would undermine procedural rigour and the overriding objective.

4. Although unnecessary to determine the remaining permitted grounds, the Tribunal gave guidance on the Devaseelan issue. The unlawful status of the Asylum and Immigration Tribunal (Fast-Track Procedure) Rules 2005 does not itself justify departure from the earlier judicial decision as the starting point. The later decision-maker must assess whether the operation of those Rules caused unfairness in the particular case. If it did, the weight otherwise due under the Devaseelan guidelines must be reduced or, where appropriate, eliminated.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision, and remitted the matter for a fresh decision.
• Court of Appeal: On 24 December 2021, granted permission to bring the “Cart” judicial review.
• High Court: Refused permission to bring the judicial review.
• First-tier Tribunal: Dismissed the appellant’s protection appeal on 15 November 2017. Permission to appeal was subsequently refused by the First-tier Tribunal and then by the Upper Tribunal.