Oceana, R (On the Application Of) v Upper Tribunal (Immigration And Asylum Chamber) [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 and for that reason the High Court was required to consider if it had jurisdiction for the Cart JR. The Secretary of State for the Home Department, the Interested Party in the claim against the Upper Tribunal, argued that section 11A precluded the claimant from bringing the claim. The claimant contested this, arguing that her claim fell within the "natural justice" exception of section 11A(4)(c)(ii) or, alternatively, that the ouster of the High Court's supervisory jurisdiction was ineffective.
Held
Ground 1: the Natural Justice Exception
In her grounds for permission to appeal, the claimant had pleaded that the First-tier Tribunal Judge who dismissed her appeal had misunderstood her evidence given orally at the hearing. The FTJ and UTJ who refused permission to appeal rejected this, with the former having listened to the recording of the hearing and having found it consistent with the contents of the determination, contrary to the grounds for permission to appeal.
Her first ground for arguing that the High Court had jurisdiction to consider her judicial review claim was that it fell into the "natural justice" exception of section 11A. The claimant submitted that, prior to any decision on her application for permission to appeal, she had a right to be informed of any discrepancy between the contents of her grounds and the official recording of her evidence. The failure to be informed brought the claim within the exception.
Saini J found that there was no arguable procedural error by the UT, let alone one that amounted to a fundamental breach of the principles of natural justice, as required by the exception. He held that the claimant was aware of the issues raised and had an opportunity to present her case. She had recourse to the appellate process. It was held that a judge has the competence to decide whether a recording is sufficiently clear or whether further recourse to the parties is necessary. Further, there was a process of which the claimant could have availed herself of to obtain a transcript of the recording.
The first ground was, thus, rejected.
Ground 2: Efficacy of the Ouster
The second ground was that the ouster of section 11A was unlawful and, therefore, ineffective, on the basis that its provisions exceeded the restriction on the High Court's jurisdiction that was deemed acceptable in Cart v Upper Tribunal [2011] UKSC 28, or on the basis that the Court's inherent supervisory jurisdiction cannot be ousted and therefore the Court had the power at common law to ignore the statutory exclusion. Saini J rejected these submissions.
It was held that section 11A was introduced specifically in order to overturn the Supreme Court's ruling in Cart, where it had been held that, in the absence of any clear provisions in the 2007 Act ousting judicial review of unappealable decisions of the Upper Tribunal, the High Court had jurisdiction over them. Section 11A was enacted with the specific purpose to change this, following an independent review launched by the government in 2020.
It was further held that, given the clear legislative language of section 11A and the constitutional principle of Parliamentary supremacy, the High Court had to give effect to primary legislation, as its common law supervisory jurisdiction enjoyed no immunity from this principle. Saini J stressed that it was only when Parliament itself provided for the qualification of its sovereignty, as it had by enacting the European Communities Act 1972 conferring higher status to EU law, or when it allowed for the consideration of the compatibility of primary legislation with the European Convention of Human Rights under the Human Rights Act 1998, were the courts in a position to enforce this.
In view of this, it was found that the ouster was effective and the judicial review claim was dismissed.
Commentary
In paragraph 46 of the judgment, it was recorded that it was common ground between the parties that there was a clear statutory exclusion of judicial review. Perhaps for that reason Saini J went no further in considering whether section 11A involved the clear and explicit language required to exclude the supervisory jurisdiction of the High Court, given the strong interpretative presumption against the exclusion of judicial review.
Reference was made to Privacy International, R (on the application of) v Investigatory Powers Tribunal & Ors [2019] UKSC 22, where that presumption was reiterated, together with the fact that it had previously been held in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 that, for the purposes of an ouster, the term "determination" could not implicitly include purported determinations that were vitiated by errors of law. However, section 11A(7) explicitly includes purported decisions in the definition of decision under that section.
As the enactment of section 11A took place with the specific purpose of excluding the High Court's 'Cart' jurisdiction, the draftsman would have been aware of the need for clear and explicit language to enable this. Further, it should be noted that the ouster is partial and not total, given the exceptions provided in the statute.
Nonetheless, whilst it seems unlikely, it would be interesting to see if the higher courts would take a different view to that of Saini J in relation to the effectiveness of the ouster, given the extensive analyses that have taken place in relation to similar ousters in the past.