The Upper Tribunal clearly has a tough time getting into the holiday spirit. Ejiogu (Cart cases) [2019] UKUT 395 (IAC), reported just before Christmas, is the equivalent of a judicial smack on the hand. It is another reminder of the importance of what the tribunal describes as the “duty of candidness”, particularly when case law is clearly against you.
Unsuccessful tribunal appeals
The case concerned the infamous tax discrepancy issues which have plagued Tier 1 (General) migrants. Mr Ejiogu’s application for indefinite leave to remain was refused on the ground that it would be undesirable to allow him to remain, under paragraph 322(5) of the Immigration Rules.
The argument at the First-tier Tribunal was that Mr Ejiogu had been a victim of a professional negligence as a result of his accountant’s errors. But there was no evidence that any issue had been raised with the accountants or that they had accepted responsibility. The First-tier Tribunal judge was having none of it, saying
… [the appellant] must be able to understand numbers that are produced for him [and it is] implausible that a person educated to the level that the appellant attained would not notice that his tax return contained an income figure of approximately £40,000 less than he had represented his income to be to UKVI.
Applying for permission to appeal, Mr Ejiogu argued that the judge had not applied the unreported case of Kadian, which said that mis-declaring tax could never be a ground for refusal under paragraph 322(5). He also pointed to a letter from the accountants accepting that they were at fault. Permission was refused on the basis that no application had been made to adduce the unreported case and the letter from the accountants accepting their fault was never before the original judge.
Cart judicial review
A decision of the Upper Tribunal to refuse permission is unappealable. The only remedy thereafter is an application for judicial review, which is what the appellant brought. In that application, reliance was again put on Kadian.
In response, the Secretary of State cited seventeen authorities, from six different High Court judges, confirming that the proposition in Kadian was not good law and it had in fact been established that such conduct could fall under paragraph 322(5). The appellant never sought to tell the court that the Secretary of State was correct about that. Oblivious, the High Court granted permission for the judicial review and, without a hearing, quashed the decision of the Upper Tribunal to refuse permission to appeal.
That meant that the application for permission to appeal remained at large. The situation was further complicated by the appellant seeking to amend the grounds for permission further.
By the time the case came back before it, the Upper Tribunal was livid:
It is… not easy to see why [counsel for the appellant] advanced the Judicial Review grounds that he did, nor why in discharge of his duty of candidness he did not also cite the many authorities against him… [or] why he did not then promptly contact the High Court and the respondent and interested party to his Judicial Review claim and explain that the basis upon which the Court had given permission could not now lead to a successful appeal.
It added, as recorded in the official headnote, a complaint about the High Court’s perceived generosity in granting permission in Cart cases.
1. An addition to the grounds of appeal requires the permission of the Upper Tribunal. That is so even if the case has been granted permission following a Cart Judicial Review under CPR 54.7A.
2. In deciding whether to grant permission to rely upon additional grounds, the Tribunal will follow the same procedure as in relation to any other procedural default, in particular considering the length of the delay (beginning with the date on which time for appeal to the Upper Tribunal expired).
3. It is becoming increasingly clear that a substantial number of Cart Judicial Review claims are succeeding in circumstances where it is difficult to imagine that the Full Court that decided Cart [2011] UKSC 28 intended that the litigation should be prolonged in this way.
Comment
A couple of things struck me about this case.
Firstly, four different barristers and at least two sets of solicitors were involved from the time the original appeal was brought until it came back round to the Upper Tribunal. This chopping and changing would have inevitably contributed to the confusion.
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The benefit of using the same counsel is that, for the most part, the focus of the arguments tends to remain consistent and concise. External eyes see the case through a different lens but changing tack late in the day can have a negative rather than a positive impact. In this case, the attempt to adduce evidence late and the change of arguments seems to have infuriated the Upper Tribunal more than anything.
Secondly, the Cart procedure in England and Wales seems to lack safeguards compared to the equivalent system in Scotland. The judgment records at paragraphs 22 and 23:
Permission was granted in the High Court… Following the usual procedure in cases of this type, no party having sought a hearing, the decision of Judge Kekić was on 12 December quashed by order of a Master…
North of the border, the court granting permission for a Cart-type judicial review to proceed will always go on to arrange a procedural hearing and a substantive hearing, as well as making orders for Notes of Argument and bundles of authorities. The Court of Session does not have a system whereby if no hearing is sought after the grant of permission, the decision is automatically quashed. In Scotland, I suspect, this case would never have returned to the Upper Tribunal.
