Supreme Court to Rule on the Susceptibility of the Upper Tribunal to Judicial Review

In our earlier article 'Supreme Court for the "Superior Court"?' we predicted that the issue of whether, and if so on what basis, the Upper Tribunal was susceptible to judicial review would have to be settled by the Supreme Court. That has proved to be the case; the Supreme Court have granted permission to appeal from the Court of Appeal in the case of Cart, [2010] EWCA Civ 859 and the matter is set down for a four day hearing in March 2011.

At Duncan Lewis we have an example of exactly the sort of problem that the current position gives rise to:

Our client was in the United Kingdom lawfully for a period of nearly ten years. He then applied, whilst he still had leave, to extend his leave as a student. The making of an application for further leave has the effect of extending current leave, on the same terms and conditions, until the application is finally decided including any period in which a decision to refuse the application is decided is under appeal, by virtue of s.3(c) of the Immigration Act 1971. In this case that meant that the Appellant had accrued 10 years lawful residence whilst his application to extend his leave was under appeal. The Immigration Rules provide that a person who has accrued 10 years of lawful residence in the United Kingdom may apply for Indefinite Leave to Remain on that basis. The Appellant therefore sought to include his entitlement to remain under this provision of the rules as a ground of appeal.

The question of whether an Appellant is entitled to raise in grounds of appeal matters that go to an entirely different basis of application to the initial decision is a complex one, and detailed consideration of the question is outside the scope of this article. However, the current law is at least clear that if (as in this case) the Secretary of State has served a section 120 notice – usually referred to as a 'one-stop notice' – requiring the Appellant to put forward ALL of his grounds for seeking to remain on pain of having them discounted at a later date if they are not put forward at that point, the Tribunal must consider in its determination of the appeal all of the grounds that the Appellant then raises in addition to the initial grounds of appeal.

The appeal with respect to the refusal to grant further leave as a student was dismissed, and it is now accepted that this decision was correct, which left the ten-year application the sole outstanding basis for challenging the...