R (Cart) v Upper Tribunal  UKSC 28
Judicial review of an UT decision which is unappealable (here, the UT's refusal of permission to appeal to itself) is available where the second-tier appeal criteria apply (whether the case raises an important point of principle or practice or there is some other compelling reason for the court to hear it).
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
JUDICIAL REVIEW — Court’s jurisdiction — Upper Tribunal — Whether Upper Tribunal’s refusal of permission to appeal to itself susceptible to judicial review — Tribunals, Courts and Enforcement Act 2007, s 3(5)
Judicial review of a refusal by the Upper Tribunal of permission to appeal to itself was limited to the grounds upon which permission to make a second-tier appeal to the Court of Appeal would be granted.
The Supreme Court so held, dismissing the appeals of the claimants, (1) Rex Cart, from a decision of the Court of Appeal (Sedley, Richards LJJ and Sir Scott Baker)B on 23 July 2010, dismissing the claimant’s appeal from a decision of the Divisional Court of the Queen’s Bench Division on 1 December 2009 (Laws LJ and Owen J) B refusing the claimant judicial review of a decision of the Upper Tribunal on 30 January 2009 granting the claimant only limited leave to appeal from a decision of the First-tier Tribunal who dismissed the claimant’s appeal from a decision of the child support agency, and (2) MR, from a decision of Sullivan J on 21 December 2010 B that the Upper Tribunal’s refusal on 10 May 2010 of permission to appeal to itself from the First-tier Tribunal’s dismissal of the claimant’s appeal from a decision of the Secretary of State for the Home Department refusing the claimant’s application for asylum was not amenable to judicial review.
BARONESS HALE OF RICHMOND JSC said that there was nothing in the 2007 Act which purported to oust or exclude judicial review of unappealable decisions of the Upper Tribunal. Clear words would have been required to do that and they were not there. It would be completely inconsistent with the new structure introduced by the 2007 Act to distinguish between the scope of judicial review in the various jurisdictions which had now been gathered together under that new structure. The scope of judicial review was an artefact of the common law whose object was to maintain the rule of law, namely, to ensure that, within the bounds of practical possibility, decisions were taken in accordance with the law, and in particular the law which Parliament had enacted. Both tribunals and the courts were there to do Parliament’s bidding. As a superior court of record the Upper Tribunal was empowered to set precedent. The First-tier Tribunal would follow that precedent and would refuse permission to appeal, as would the Upper Tribunal, because they considered the precedent to be correct. The question of law would not reach the High Court or the Court of Appeal who might take a different view from the Upper Tribunal. There was therefore a real risk of the Upper Tribunal becoming the final arbiter of the law, which was not what Parliament intended. The question was what machinery was necessary and proportionate to keep such mistakes to the minimum. One approach was that judicial review of refusals of leave to appeal from one tribunal to another should be limited to the grounds upon which permission to make a second-tier appeal to the Court of Appeal would be granted. There was always a possibility that a judge at any level would get it wrong. There should always be the possibility that another judge could look at the case and check for error. The second judge should be someone with more experience or expertise than the judge who first heard the case. But it was not obvious that there should be a right to any particular number of further checks after that. The adoption of the second-tier appeals criteria would be a rational and proportionate restriction upon the availability of judicial review of the refusal by the Upper Tribunal of permission to appeal to itself. However there was nothing in either of the claimants’ cases to bring them within those criteria.
LORD PHILLIPS OF WORTH MATRAVERS PSC, LORD BROWN OF EATON-UNDER-HEYWOOD, LORD CLARKE OF STONE-CUM-EBONY and LORD DYSON JJSC delivered judgments agreeing with Baroness Hale JSC.
LORD HOPE OF CRAIGHEAD DPSC and LORD RODGER OF EARLSFERRY JSC agreed with Lord Phillips PSC, Baroness Hale and Lord Dyson JJSC.
Regina (Cart) v Upper Tribunal
Regina (MR (Pakistan)) Upper Tribunal
B;  WLR (D) 203
SC(E): Lord Phillips of Worth Matravers PSC, Lord Hope of Craighead DPSC, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood, Lord Clarke of Stone-cum-Ebony, Lord Dyson JJSC: 22 June 2011
Appearances: Richard Drabble QC and Charles Banner (instructed by Bates Wells & Braithwaite LLP) for the claimant Cart; Manjit Gill QC, Natsai Manyarara and Jay Patel (instructed by Archer Fields, Ilford) for the claimant MR; James Eadie QC and Sam Grodzinski (instructed by Treasury Solicitor) for the Upper Tribunal and the Secretary of State for the Home Department as respondents, and for the Secretary of State for Justice as interested party; Michael Fordham QC and Tim Buley (instructed by Herbert Smith LLP) for the Public Law Project intervening; Alex Bailin QC, Aiden O’Neill QC and Iain Steele (instructed by Freshfields Bruckhaus Deringer LLP) by written submissions only for JUSTICE intervening.
Reported by: Shirani Herbert, Barrister.
© 2011. The Incorporated Council of Law Reporting for England and Wales.