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Lawyers warned not to include brand new arguments in Cart judicial reviews

Lawyers warned not to include brand new arguments in Cart judicial reviews

Always a stickler for procedure, President Lane has again warned lawyers to not judicially review decisions of the Upper Tribunal refusing permission to appeal on grounds that were not before the Upper Tribunal in the first place. The case is Osefiso and another (PTA decision: effect; ‘Cart’ JR) [2021] UKUT 116 (IAC).

Ms Osefiso, from Nigeria, was relying on human rights considerations for permission to remain in the UK. She had previously been granted permission on the private life route and was now applying for further permission to remain for herself and her son, born in 2015, on continuing human rights grounds. The application and her First-tier Tribunal appeal were refused, as were subsequent applications for permission to appeal further (including directly to the Upper Tribunal). She began Cart judicial review proceedings to challenge the refusal to hear her case, and was granted permission for the JR on grounds that had not been advanced before the Upper Tribunal.

It seems that Ms Osefiso’s lawyers knew that they were on shaky ground in putting forward new arguments which were not in the applications for permission to appeal. After the Upper Tribunal had already refused permission, they sent in another application for permission to appeal (headed “Particulars of Claim Judicial Review”), this time containing the new arguments. In this way they hoped to get around the prohibition on introducing fresh grounds at this stage of the process. The High Court granted permission 

All of this hit the fan when the case came back before President Lane:

the fundamental problem with this course of action was that such an application had already been made by the appellants’ previous representatives. That application had been decided by the Upper Tribunal on 6 January 2020, when it refused permission to appeal. That refusal was, unarguably, a decision that disposed of the proceedings in the Upper Tribunal.

It was always going to be tricky to convince the Upper Tribunal that anyone who fancied another shot at an application for permission to appeal could chuck one in! Not least, as the tribunal said “there would be nothing to prevent an appellant from filing an unlimited number of applications for permission to appeal, within the requisite time limit, all of which would have to be determined by the Upper Tribunal”.

The upshot was that the tribunal accepted that the legal team had acted in “entirely good faith” but said that “no one should repeat those steps in the future”. That is, if you didn’t raise your new argument in the permission to appeal application, it’s tough luck when it comes to judicial review.

The only exception is where the new points were so compelling that the tribunal should have considered them of its own volition (so-called “Robinson obvious” points). Luckily, that’s exactly what happened here, so the tribunal remitted Ms Osefiso’s case for a re-hearing.

The official headnote

(1) A decision of the Upper Tribunal to refuse permission to appeal against a decision of the First-tier Tribunal disposes of proceedings in the Upper Tribunal. Except for its power to set aside under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 for procedural irregularity, the Upper Tribunal cannot revisit its decision. As a result, it has no jurisdiction to entertain subsequently-formulated grounds of challenge to the First-tier Tribunal’s decision.

(2) In order to satisfy the part of CPR 54.7A(7)(a) which requires the High Court to find an arguable case that the Upper Tribunal’s refusal of permission to appeal was wrong in law, the court needs to be satisfied either that:

(a) the Upper Tribunal’s reaction to the grounds of challenge in the application for permission to appeal was arguably wrong in law; or

(b) where the judicial review grounds have not found expression in the grounds considered by the Upper Tribunal, the judicial review grounds are of such a nature as to have required the Upper Tribunal to have raised them of its own volition, and then considered them; and that its failure to do so is arguably wrong in law.

Bilaal is an Associate in the Insurance, Financial and Professional Disputes team at Clyde and Co in Edinburgh

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