Sadia Afroz Chowdhury, R (on the application of) v The Upper Tribunal (Immigration and Asylum Chamber)

Under section 11A(4)(c)(ii) of the Tribunals, Courts and Enforcement Act 2007, jurisdiction exists where there is a genuinely disputable question whether the Upper Tribunal acted in a procedurally defective way amounting to a fundamental breach of natural justice.

That jurisdictional question is distinct from the merits of the claim and from discretionary matters such as an alternative remedy. The appropriate permission test is realistic arguability, not the former Cart test. Permission may nevertheless be refused where the omitted ground could not affect the outcome.

In an Article 8 case, the effect of removal on all affected family members must be considered. Precarious or unlawful immigration status remains relevant to proportionality under general law.

The Claimant, a Bangladeshi national who had overstayed in the United Kingdom, relied on Article 8 in challenging refusal of further leave to remain. The First-tier Tribunal dismissed her appeal, finding that her relationship with her dependent paternal uncle constituted a strong private life but not family life.

The Upper Tribunal refused permission to appeal without considering supplementary grounds challenging that conclusion. The High Court refused permission for judicial review. It assumed that the natural justice exception in section 11A(4)(c)(ii) applied, but used the former Cart test and held that the proposed challenge was unarguable.

The Court of Appeal considered whether the omission gave rise to the statutory exception, the correct permission test, and whether the omitted family-life ground could have affected the outcome.

1. Disposition. Permission to appeal was granted at the rolled-up hearing, but the appeal was dismissed. The refusal of permission to apply for judicial review was upheld.
2. Jurisdiction. Section 11A(4) of the Tribunals, Courts and Enforcement Act 2007 applies only so far as the Upper Tribunal’s refusal gives rise to a genuinely disputable question within one of the statutory exceptions. The omission to place the supplementary grounds before the judge was plainly a procedural defect. It was realistically arguable that overlooking a ground submitted before permission was determined amounted to a fundamental breach of natural justice. The lateness of the grounds did not conclusively prevent that conclusion.
3. The statutory language requires fundamental unfairness, assessed holistically. The court declined to add the gloss that the defect must be so grave as to rob the process of all legitimacy, preferring the statutory wording. An alternative remedy under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008, or the merits of the omitted ground, did not determine jurisdiction. Those matters could be relevant to discretion. The discussion of rule 43, informed by Plescan v Secretary of State for Work and Pensions [2023] EWCA Civ 870, was not necessary to the result.
4. Permission test. Griffiths J had applied the former Cart test. That was wrong because section 11A wholly superseded the Cart regime. The ordinary principles governing permission for judicial review applied, namely realistic arguability, subject to the court’s discretion, as summarised in Sharma v Brown-Antoine [2006] UKPC 57.
5. Outcome on the omitted ground. The family-life ground had no real prospect of success in affecting the result. Although the Court was surprised by the First-tier Tribunal’s conclusion that there was no family life, and was prepared to assume that it was arguably erroneous, the Tribunal had assessed the relationship as a strong private life and had weighed the effect of separation on both the Claimant and Dr Alam. That was the proportionality exercise required by Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39. The alleged mischaracterisation therefore made no dispositive difference.
6. Sections 117B(4) and (5) of the Nationality, Immigration and Asylum Act 2002 were not irrelevant. The Claimant had a private life in the United Kingdom, and precarious or unlawful status was independently relevant to the proportionality of removal where family life existed. The approach in Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886, approving the principles in R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11 and Jeunesse v The Netherlands [2014] ECHR 1036, applied. The First-tier Tribunal’s balancing exercise was not shown to be perverse.

1. Court of Appeal (Civil Division) — In [2025] EWCA Civ 656, permission to appeal was granted at the rolled-up hearing, but the appeal was dismissed.
2. High Court, Administrative Division — Griffiths J refused permission to apply for judicial review after assuming that the natural justice exception applied. He applied the former Cart test and held that the proposed challenge was unarguable. Freedman J had earlier refused permission on the papers.
3. Upper Tribunal — UTJ Grubb refused permission to appeal on 16 November 2022 without considering the supplementary family-life ground.
4. First-tier Tribunal — FTTJ Kaler dismissed the Article 8 appeal in a decision promulgated on 28 March 2022.