The Court of Appeal has dismissed a case on the basis that it does not have jurisdiction to hear it following the changes to section 11A of the Tribunals, Courts and Enforcement Act 2007, made by the Judicial Review and Courts Act 2022. This was an application for permission to appeal against the refusal to grant permission for a judicial review against a decision of the Upper Tribunal (i.e. a Cart judicial review) to refuse permission to appeal in an asylum case. In dismissing the case, the Court of Appeal confirmed the position in R (Oceana) v Upper Tribunal (Immigration and Asylum Chamber) [2023] EWHC 791 (Admin) (we covered that case previously). This case is LA (Albania), R (on the application of) v The Upper Tribunal (Immigration & Asylum Chamber) [2023] EWCA Civ 1337.
The Court of Appeal said at [36] that:
For the detailed reasons given above, in my judgment Sir Duncan Ouseley was right to find that the High Court did not have jurisdiction pursuant to section 11A of the 2007 Act to entertain the claim for judicial review against the Upper Tribunal. For similar reasons the Court of Appeal does not have jurisdiction to hear an appeal against that decision. This is because the wording of section 11A is effective to limit the grounds on which the High Court may exercise its supervisory jurisdiction over a decision by Upper Tribunal to refuse a party permission to appeal from a decision of the FTT; and because there is no genuinely disputable basis for showing that Ms LA’s claim for judicial review falls within the exceptions set out in section 11A(4) of the 2007 Act. The fact that there is no jurisdiction to hear the proposed appeal means that no issue of granting or refusing permission to appeal to the Court of Appeal arises.
Lord Justice Underhill separately reiterated the point that where jurisdiction is not accepted the correct course of action is for the court to dismiss the case rather than refusing permission which implies that jurisdiction has been accepted.
An attempt to bring the case within the limited exceptions that exist in section 11A(4) of the 2007 Act was also dismissed, the court saying that it would be necessary to show that there is “a genuinely disputable question that the exception applies”. Given how few Cart judicial reviews there were even before these changes, it may still be some time before we see any cases successfully navigate these very limited exceptions.
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