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Judicial review of Upper Tribunal

As of 1 October 2012 a new procedure has been introduced for judicial review of decisions by the Upper Tribunal to refuse permission to appeal to itself. This follows on from the Supreme Court’s judgment in Cart and MR (Pakistan) [2011] UKSC 28 (previous post).

A new Rule 54.7A is inserted into the Civil Procedure Rules which provides for an accelerated timescale and no opportunity to apply for oral renewal. The time limit for lodging such an application for judicial review is reduced from three months to 16 days from the date on which the Upper Tribunal’s decision to refuse permission was sent. The Upper Tribunal and any interested party (in immigration cases the Secretary of State for the Home Department represented by Treasury Solicitors) must be served with copies of the application within seven days and the acknowledgement of service must be filed within 21 days. The ‘second appeals test’ (that the claim would raise an important point of principle or practice or there is some other compelling reason to hear it) is explicitly incorporated into the test for whether permission should be granted.

Rule 54.7A.8 provides that where permission is refused no application for oral renewal can be made. Refusals will therefore be papers-only affairs, like the old Statutory Review process under previous legislation. Where permission is granted, the Upper Tribunal decision will automatically be quashed unless a request for an oral hearing is made within 14 days of the order granting permission with the (probable) effect that permission to the Upper Tribunal is granted.

Despite the absence of a right of oral renewal I think that a refusal of permission on the papers can be appealed to the Court of Appeal under s.16(1) of the Supreme Court Act 1981.

It will be interesting to see what impact these changes make on the number of judicial review applications. So far it seems that claimants have been very restrained in only pursuing judicial review in a very small number of cases. Now that the procedure is so much more routine and mundane, I suspect that the courts will see a sharp increase in the number of challenges. By seeking to solve a non-existent problem these knee jerk rule changes will probably have the opposite effect to that intended.

Many thanks to ILPA for the heads up in the September mailing and for the thought-provoking question posed regarding what sort of dancing might be considered in law to be ‘of a similar nature’ to Morris dancing for the purposes of the Live Music Act 2012 (Commencement) Order 2012.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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