Upper Tribunal has power to set aside grant of judicial review permission

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Unfortunately it sometimes happens that a claim entirely lacking in substantive merit gets into a procedural tangle which gives it an undeserved lease of life. The present case is an extreme example.

– Lord Justice Leggatt

The Court of Appeal has confirmed that the Upper Tribunal has the same power as the High Court to set aside a decision to grant permission for judicial review. In R (Singh) v Secretary of State for the Home Department [2019] EWCA Civ 1014, the Upper Tribunal set aside an earlier grant of permission because the Home Office had been prevented from attending the permission hearing due to a misunderstanding.

Mr Singh appealed on the sole ground that the Upper Tribunal does not have the power to set aside a grant of judicial review permission. He did not contest the merits of the decision and accepted that the High Court has the power to set aside the grant of permission.

Leggatt LJ, opening with the complaint quoted above, dismissed the appeal. Section 25 of the Tribunals, Courts and Enforcement Act 2007 provides the Upper Tribunal with the same powers as the High Court concerning any matter which is incidental to the Upper Tribunal’s function. The judge decided that the power to set aside a grant of judicial review permission because of a procedural irregularity was clearly incidental to the function of considering application for judicial review:

Pursuant to sections 15 and 16 of the 2007 Act, one of the functions of the Upper Tribunal is to deal with applications for judicial review and, as an aspect of that function, to decide whether or not to grant permission to bring judicial review proceedings. Considering whether to set aside a decision to grant such permission taken in the absence of the respondent and to re-hear the application is a matter incidental to this function. Pursuant to section 25 of the Act, therefore, the Upper Tribunal has the same powers in dealing with the matter as would the High Court. It would be anomalous if the position were otherwise and if the Upper Tribunal, when exercising a judicial review jurisdiction similar to that of the High Court, lacked a power which the High Court has as an essential part of its procedural repertoire to manage its proceedings in a just and effective manner.

It was a straightforward decision for the Court of Appeal and the appellant can have no complaints about the result.