MD Ayaz Karim, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber)

A claimant cannot obtain oral reconsideration in the High Court of a paper refusal of permission for judicial review of an Upper Tribunal refusal of permission to appeal, where the statutory ouster in section 11A of the Tribunals, Courts and Enforcement Act 2007 applies. The question whether the claim falls within a statutory exception is distinct from the question which court may consider it. The Court of Appeal is the proper route. If it grants permission to apply for judicial review, the High Court’s jurisdiction may be restored. The statutory scheme does not create simultaneous rights of High Court reconsideration and Court of Appeal permission. The judgment also confirms that serious inadequacy in reasons or failure to hold an oral hearing may, in principle, engage the natural justice exception, but neither was arguable on the facts.

The claimant challenged an Upper Tribunal refusal of permission to appeal from a First-tier Tribunal decision concerning the refusal of indefinite leave to remain. The High Court had refused permission for judicial review on the papers. The claimant sought oral reconsideration under CPR 54.12(3), while the Secretary of State argued that section 11A of the Tribunals, Courts and Enforcement Act 2007 removed that jurisdiction.

The central issues were whether the High Court retained jurisdiction to reconsider the paper refusal orally, whether the reasoning in R (LA (Albania)) v Upper Tribunal governed that question, and, alternatively, whether the proposed judicial review grounds disclosed an arguable statutory exception or material error of law.

1. Jurisdiction. The High Court had no jurisdiction to hear the claimant’s requested oral reconsideration. Section 11A addresses the substantive question whether judicial review is excluded, whereas the availability of oral reconsideration concerns the procedural question of which court may deal with the claim.
2. Interaction of the rules. CPR 52.8(2) provides the route to the Court of Appeal after a paper refusal of permission to apply for judicial review of an Upper Tribunal decision. CPR 54.12(3) cannot be read as conferring a concurrent right to High Court reconsideration in the same case. The rules must be read coherently and consistently with the overriding objective.
3. Binding authority. The Court of Appeal’s reasoning in R (LA (Albania)) v Upper Tribunal, [2023] EWCA Civ 1337, included the conclusion that an adverse paper determination ended High Court consideration at an oral hearing. That reasoning formed part of the ratio and was binding. If the Court of Appeal overturns the paper refusal, the High Court’s jurisdiction may be restored under CPR 52.8(6).
4. Scope of the conclusion. The decision did not establish that every issue described as jurisdictional makes a paper refusal final without oral reconsideration. The conclusion was confined to cases engaging section 11A.
5. Alternative merits. Even if jurisdiction existed, the claim would be dismissed. The First-tier Tribunal had considered the burden of proof and had found that dishonesty was established. Prior diligent adducibility was treated as relevant and as a starting point, not as determinative. The proposed errors were therefore not arguable.
6. Further principles. In principle, seriously inadequate reasons for an Upper Tribunal refusal of permission, or failure to hold an oral hearing where common-law principles required one, could engage section 11A(4)(c)(ii). The context of Upper Tribunal refusals may inform the assessment, but those points did not arise on the facts.

The application for oral reconsideration was dismissed for want of jurisdiction. The existing acknowledgment-of-service costs order stood; costs for the February hearing were refused; and the claimant was ordered to pay £1,600 for the May hearing and necessary preparation.

1. First-tier Tribunal: dismissed the claimant’s appeal against refusal of indefinite leave to remain on 26 June 2022.
2. Upper Tribunal: refused permission to appeal on 6 October 2022.
3. High Court (Administrative Court): refused permission for judicial review on the papers on 23 August 2023. On requested oral reconsideration, the court held that it had no jurisdiction under the statutory scheme and dismissed the application.
4. Court of Appeal route: CPR 52.8(2) provided the proper route for challenging the paper refusal. If permission to apply for judicial review were granted under CPR 52.8(5), the case could proceed in the High Court under CPR 52.8(6).