Mary Jane Baluden Oceana, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber)

Section 11A of the Tribunals, Courts and Enforcement Act 2007 abolishes judicial review of an Upper Tribunal refusal of permission to appeal, subject only to its specified jurisdictional exceptions. The Administrative Court must objectively assess whether an exception arguably arises before exercising jurisdiction.

The natural justice exception requires a procedural failure so grave that it deprives the process of legitimacy. Fairness is context-sensitive and must be assessed holistically. A complaint about the correctness or merits of the outcome does not engage the exception. Parliament may exclude the High Court’s supervisory jurisdiction by clear primary legislation.

The claimant challenged the Upper Tribunal’s refusal of permission to appeal against a First-tier Tribunal decision concerning an alleged fraudulent English-language test. She argued that the Upper Tribunal should have disclosed the recording of her evidence and invited submissions before determining whether the First-tier Tribunal had misunderstood it.

The claim had been granted permission under the former Cart principles, without the court being directed to section 11A of the Tribunals, Courts and Enforcement Act 2007. The Interested Party raised the statutory ouster as a preliminary jurisdictional issue. The questions were whether the claim fell within the natural justice exception and whether section 11A was otherwise ineffective.

1. Jurisdictional gateway. Section 11A gives finality to an Upper Tribunal refusal of permission to appeal and excludes judicial review except in the specified circumstances. The Administrative Court must objectively determine whether an exception arguably arises. Only after a jurisdictional gateway is crossed does the ordinary arguability threshold arise (paras [29]-[30]).
2. Natural justice. Fairness is flexible and depends on the statutory and procedural context. The statutory requirement of a fundamental breach demands a procedural failure so grave that it deprives the process of legitimacy. The court must assess the entire process rather than isolate one disputed step. Complaints about the merits or correctness of the outcome do not fall within the exception (paras [32]-[34]).
3. The claimant had a reasonable opportunity to present her case. She addressed the issue before the First-tier Tribunal, raised the alleged evidential misunderstanding in her grounds, and the point was considered by both tribunal judges. It was proper for the judge determining permission to consult the official recording and decide whether it supported the asserted error without first inviting further submissions. The available procedure for seeking disclosure of the record also weakened the complaint (paras [38]-[41]).
4. Effectiveness of the ouster. The legislation was enacted to remove Cart judicial reviews and replaced the former judicially developed second-appeals test. Section 11A is a clear and effective partial exclusion of the High Court’s supervisory jurisdiction (paras [45]-[49], [54]).
5. Under the constitutional law of England and Wales, courts interpret legislation, including ouster clauses, but must give effect to Parliament’s will where clear language is used. The common-law supervisory jurisdiction has no immunity from primary legislation. Powers under section 4(2) of the Human Rights Act 1998 are statutory powers and do not alter that principle (paras [52]-[53]).
6. The jurisdictional issue was decided for the Interested Party and the judicial review claim was dismissed.

This was a first-instance judicial review claim. The claimant challenged an Upper Tribunal refusal of permission to appeal dated 29 August 2022. The Administrative Court dismissed the claim on jurisdictional grounds.