In our earlier article 'Supreme Court for the "Superior Court"?' we predicted that the issue of whether, and if so on what basis, the Upper Tribunal was susceptible to judicial review would have to be settled by the Supreme Court. That has proved to be the case; the Supreme Court have granted permission to appeal from the Court of Appeal in the case of Cart, [2010] EWCA Civ 859 and the matter is set down for a four day hearing in March 2011.
At Duncan Lewis we have an example of exactly the sort of problem that the current position gives rise to:
Our client was in the United Kingdom lawfully for a period of nearly ten years. He then applied, whilst he still had leave, to extend his leave as a student. The making of an application for further leave has the effect of extending current leave, on the same terms and conditions, until the application is finally decided including any period in which a decision to refuse the application is decided is under appeal, by virtue of s.3(c) of the Immigration Act 1971. In this case that meant that the Appellant had accrued 10 years lawful residence whilst his application to extend his leave was under appeal. The Immigration Rules provide that a person who has accrued 10 years of lawful residence in the United Kingdom may apply for Indefinite Leave to Remain on that basis. The Appellant therefore sought to include his entitlement to remain under this provision of the rules as a ground of appeal.
The question of whether an Appellant is entitled to raise in grounds of appeal matters that go to an entirely different basis of application to the initial decision is a complex one, and detailed consideration of the question is outside the scope of this article. However, the current law is at least clear that if (as in this case) the Secretary of State has served a section 120 notice – usually referred to as a 'one-stop notice' – requiring the Appellant to put forward ALL of his grounds for seeking to remain on pain of having them discounted at a later date if they are not put forward at that point, the Tribunal must consider in its determination of the appeal all of the grounds that the Appellant then raises in addition to the initial grounds of appeal.
The appeal with respect to the refusal to grant further leave as a student was dismissed, and it is now accepted that this decision was correct, which left the ten-year application the sole outstanding basis for challenging the decision. Unfortunately neither the First Tier Tribunal, nor the Upper Tribunal were prepared to grant permission to appeal to the Upper Tribunal on that point, on the basis that the question did not fall to be decided in the instant appeal. With respect to the Upper Tribunal, it is not clear how their decision can be reconciled with current authority from the Court of Appeal.
This is a paradigm case in that the Appellant appears to have an overwhelming, even unanswerable case that the Upper Tribunal has wrongly prevented him from pursuing a good ground of appeal. Further, this decision (refusal of permission to appeal) is not itself a decision that admits of further appeal.
This impasse has a very significant impact upon the Appellant, as the dismissal of his appeal has the further effect that he can no longer lawfully continue in employment here (or indeed have access to public funds to mitigate the impact of his loss of income).
Prior to the introduction of the new Tribunals regime, the issue would have been resolved by bringing an action for judicial review of the decision to refuse leave to appeal. However, the Court of Appeal upheld the decision of the Divisional Court that the Upper Tribunal is not susceptible to judicial review on the mere basis that it made an error of law, it will only lie where a further element that demonstrates that the Appellant was entirely denied a fair hearing (for example where there is evidence of corruption or malice) can be demonstrated.
It remains to be seen if the Supreme Court will expand the grounds upon which judicial review is available. In the meantime Duncan Lewis are taking steps to protect the Appellant's position. All those similarly affected should take immediate steps to minimise the prospect that they are disadvantaged: we are happy to assist in this specialist area.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.