LA (Albania), R (on the application of) v The Upper Tribunal (Immigration & Asylum Chamber)

Section 11A of the Tribunals, Courts and Enforcement Act 2007 validly limits judicial review of an Upper Tribunal decision refusing permission to appeal from the First-tier Tribunal. The High Court retains supervisory jurisdiction, but only for questions within the statutory exceptions.

A claimant must demonstrate a genuinely disputable question that an exception applies. Mere assertion is insufficient. The statutory focus under section 11A(4)(c)(ii) is whether the Upper Tribunal acted in a procedurally defective way amounting to a fundamental breach of natural justice.

The Upper Tribunal refused the appellant permission to appeal from the dismissal of her asylum and human rights appeal by the First-tier Tribunal. Sir Duncan Ouseley dismissed her proposed judicial review because section 11A of the Tribunals, Courts and Enforcement Act 2007 deprived the High Court of jurisdiction and no statutory exception applied.

The appellant sought permission to appeal. The Court of Appeal considered whether section 11A validly restricted the High Court’s supervisory jurisdiction, the threshold for invoking its exceptions, and whether the alleged defects in the tribunal proceedings raised a qualifying question of fundamental procedural unfairness.

1. The application was dismissed for want of jurisdiction. Section 11A of the Tribunals, Courts and Enforcement Act 2007 uses clear and explicit language. It validly confines judicial review of an Upper Tribunal refusal of permission to appeal to the questions specified in subsection (4). The provision does not abolish the High Court’s supervisory jurisdiction. It restricts its scope and substantially restores the pre-Anisminic categories of excess of jurisdiction and fundamental denial of justice. [2023] EWCA Civ 1337, paras 31–36, 47–51.

2. The statute also addresses errors of law and nullity directly. Section 11A(3) prevents an error in reaching the decision from being treated as an excess of power, while section 11A(7) includes a purported decision. Parliament thereby replaced the second-appeals standard established in Cart with the statutory exceptions. The decision in Oceana was correct. Paras 32–36.

3. A claimant invoking section 11A(4) must identify a genuinely disputable question that an exception applies. A bare assertion cannot establish jurisdiction. The analogous approach to appeals as of right involving constitutional interpretation in Frater and Alleyne-Forte was applied. Paras 37–38.

4. Section 11A(4)(c)(ii) focuses on the Upper Tribunal’s process. The Upper Tribunal considered all 13 proposed grounds on the papers and gave reasons why each was unarguable. The selected complaints concerning the First-tier Tribunal’s treatment of family evidence, medical evidence and a care plan disclosed no genuinely disputable question that the Upper Tribunal had acted in a procedurally defective way amounting to a fundamental breach of natural justice. Paras 39–46, 48–49.

5. The court left open whether fundamental procedural unfairness in the First-tier Tribunal could engage section 11A(4)(c)(ii) where the Upper Tribunal refused permission to appeal without committing a discrete procedural defect of its own. The point did not arise because the First-tier Tribunal’s decision was not fundamentally procedurally unfair. Paras 53–56.

6. Where a court concludes that it lacks jurisdiction, the correct order is dismissal rather than refusal of permission. Accordingly, no question of granting or refusing permission to appeal arose. Paras 47 and 52.

1. Court of Appeal (Civil Division): The application for permission to appeal was dismissed because the court lacked jurisdiction under section 11A of the Tribunals, Courts and Enforcement Act 2007. [2023] EWCA Civ 1337

2. High Court, Administrative Court: Sir Duncan Ouseley decided on 29 June 2023 that the High Court lacked jurisdiction to entertain the proposed judicial review because no section 11A exception applied. Although formally expressed as a refusal of permission, the order was substantively a dismissal for want of jurisdiction.

3. Upper Tribunal (Immigration and Asylum Chamber): On 22 March 2023, Upper Tribunal Judge Sheridan refused permission to appeal from the First-tier Tribunal.

4. First-tier Tribunal (Immigration and Asylum Chamber): Judge Athwal dismissed the appellant’s protection and human rights appeal on 12 October 2022. The First-tier Tribunal refused permission to appeal on 20 December 2022.