High Court Considers Cart JR Ouster Clause

• Jurisdiction: European Union
• Law Firm: Richmond Chambers Immigration Barristers
• Subject Matter: Government, Public Sector, Immigration, Constitutional & Administrative Law, Human Rights, General Immigration
• Author: Mr Alex Papasotiriou
• Published date: 16 May 2023

Oceana, R (On the Application Of) v Upper Tribunal (Immigration And Asylum Chamber) (Rev1) [2023] EWHC 791 (Admin) is a High Court judgment on a preliminary issue as to jurisdiction in a claim for judicial review; essentially a 'Cart JR' following the partial ouster of the High Court's 'Cart' jurisdiction by the coming into force of section 2 of the Judicial Review and Courts Act 2022 on 14 July 2022.

Section 2 of that Act amended the Tribunals, Courts and Enforcement Act 2007 (insofar as Upper Tribunal decisions made after 14 July 2022 are concerned) by adding section 11A, which states:

"11A Finality of decisions by Upper Tribunal about permission to appeal

(1)Subsections (2) and (3) apply in relation to a decision by the Upper Tribunal to refuse permission (or leave) to appeal further to an application under section 11(4)(b).

(2)The decision is final, and not liable to be questioned or set aside in any other court.

(3)In particular'

(a)the Upper Tribunal is not to be regarded as having exceeded its powers by reason of any error made in reaching the decision;

(b)the supervisory jurisdiction does not extend to, and no application or petition for judicial review may be made or brought in relation to, the decision.

(4)Subsections (2) and (3) do not apply so far as the decision involves or gives rise to any question as to whether'

(a)the Upper Tribunal has or had a valid application before it under section 11(4)(b),

(b)the Upper Tribunal is or was properly constituted for the purpose of dealing with the application, or

(c)the Upper Tribunal is acting or has acted'

(i)in bad faith, or

(ii)in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice.

[...]

(7)In this section'

"decision" includes any purported decision;

"first-instance decision" means the decision in relation to which permission (or leave) to appeal is being sought under section 11(4)(b);

"the supervisory jurisdiction" means the supervisory jurisdiction of'

(a)the High Court, in England and Wales or Northern Ireland, or

(b)the Court of Session, in Scotland,

and "the court of supervisory jurisdiction" is to be read accordingly."

Procedural History

In Oceana, the claimant was challenging the Upper Tribunal's decision to refuse her application for permission to appeal to the Upper Tribunal against the decision of the First-tier Tribunal dismissing her appeal. As the UT's decision was made on 29 August 2022, section 11A of the 2007 Act applied to it...