FC and GC -v- The Upper Tribunal (Immigration and Asylum Chamber) (anonymity order)

Administrative CourtHigh CourtImmigration and Asylum Chamber (Upper Tribunal)King's Bench DivisionAnonymity Order

Case number: AC-2024-LON-003432

In the High Court of Justice
King’s Bench Division
Administrative Court

In the matter of an application for judicial review

21 May 2025

Before:

The Honourable Mrs Justice Lang DBE

Between:

The King
on the application of
(1) FC
(2) GC
(Claimants)

-v-

The Upper Tribunal (Immigration and Asylum Chamber)
(Defendant)

and

Secretary of State for the Home Department
(HO Ref: HU/00639/2023 & HU/00638/2023)
(Interested Party)

Order

Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)

Following consideration of the documents lodged by the Claimants and the Acknowledgement of service filed by the Defendant, and the letter from the Interested Party dated 17 October 2024;

Order by the Honourable Mrs Justice Lang DBE

  1. Under the Court’s inherent jurisdiction and pursuant to section 6 of the Human Rights Act 1998 and CPR 39.2(4):
    a. The name of the Claimants are to be withheld from the public and must not be disclosed in any proceedings in public.
    b.The Claimants are to be referred to orally and in writing as “FC” and “GC”.
  2. Pursuant to section 11 of the Contempt of Court Act 1981, there must be no publication of the identity of the Claimants or of any matter likely to lead to the identification of the Claimants in any report of, or otherwise in connection with, these proceedings.
  3. Pursuant to CPR 5.4C:
    a. Within 7 days of the date of service of this order, the parties must file and serve a redacted copy of any statement of case already filed, omitting the name, address and any other information likely to lead to the identification of the Claimants;
    b. If any statement of case subsequently filed includes information likely to lead to the identification of the Claimants, a redacted copy omitting that information must be filed at the same time and must then be served with the unredacted version;
  4. Unless the Court grants permission under CPR 5.4C(6), no non-party may obtain a copy of any unredacted statement of case.
  5. The application is dismissed.
  6. No order for costs.

Reasons

  1. This application for permission to apply for judicial review is a challenge to a decision of the Upper Tribunal (“UT”). It is to be determined in accordance with the provisions of section 11A of the Tribunals Courts and Enforcement Act 2007 (“the 2007 Act”). Generally, such challenges are excluded by reason of section 11A(2) of the 2007 Act.
  2. Parliament has abolished the jurisdiction of the Administrative Court to determine applications for judicial review of decisions of the UT refusing permission to appeal against decisions of the First-tier Tribunal (“FTT”): see section 2 of the Judicial Review and Courts Act 2022.
  3. This change to the law applies to decisions made on or after 14 July 2022. Its effect is that decisions of the UT refusing permission to appeal are final and cannot be challenged in the Administrative Court.
  4. In this case, the UT made its decision refusing permission to appeal on 24 July 2024.
  5. Permission to apply for judicial review will be granted only if the claim falls within any of the exceptions at section 11A(4) of the 2007 Act which provides:
    “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.”
  6. It is not enough to assert that one of these exceptions applies. A claimant must establish a “genuinely disputable question that the exception applies” (R(LA Albania) v UTIAC [2023] EWCA Civ 1337, per Dingemans LJ at [37] – [38]).
  7. According to Saini J. in R(Oceana) v UTIAC [2023] EWHC 791 (Admin), a “fundamental breach of the principles of natural justice” requires “a claimant to identify a failure in process which is so grave as to rob the process of any legitimacy”. That is a substantial hurdle.
  8. In this case, the FTT ( FTT Judge Brewer and FTT Judge Rogers) went to exceptional lengths to assist the Claimants to fully prepare their case and present their evidence. The Claimants were given an opportunity to attend a hearing on a date suitable to them and it was their choice to have the appeal decided on the papers. This was confirmed by FTT Judge Chowdhury when refusing permission to appeal.
  9. The FTT decisions were carefully and fairly considered by the UT, in accordance with its usual procedures. The UT was entitled to find that there was no arguable merit in the grounds of appeal, and no arguable error of law was disclosed in FTT Judge Rogers’ decision to dismiss the appeals. The reasons given by the UT were adequate and met the required legal standard. The Claimants have not identified any procedural defect amounting to a fundamental breach of natural justice.
  10. Therefore this claim does not come within any of the exceptions in section 11A(4) of the 2007 Act.
  11. The Claimants seek to challenge the decisions of the FTT dismissing the appeal, dated 26 May 2023, and the refusal of permission to appeal by the FTT on 27 September 2023. However, permission to apply for judicial review of a decision of the FTT is never granted by this Court in these circumstances because of the statutory rights of appeal. This was the position prior to the change in the law abolishing the judicial review jurisdiction in respect of the UT. It remains the position after the change in the law: see section 11A(6) of the 2007 Act.
  12. The Claimants also challenge the decision of the Interested Party. However, permission to apply for judicial review of the decision of the Interested Party is never granted by this Court in these circumstances because of the statutory rights of appeal. This was the position prior to the change in the law abolishing the judicial review jurisdiction in respect of the UT. It remains the position after the change in the law: see section 11A(6) of the 2007 Act.
  13. Furthermore, CPR 54.7A(2) provides that the claim must be filed no later than 16 days after the date on which notice of the UT’s decision was sent. In this case, the decision of the UT was sent to the Claimants on 25 July 2024, but the claim for judicial review was not filed until 24 September 2024, two months after the decision was sent. The Claimants have not established a good reason for an extension of time.
  14. I have made anonymity orders, in recognition of the fact that anonymity directions were made in the FTT and UT.
  15. Therefore the application is dismissed.

Signed: Mrs Justice Lang

Dated: 21 May 2025