England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		21 December 2010

LORD JUSTICE SULLIVAN:

Introduction

1. Is a decision of a judge of the Upper Tribunal (Immigration and Asylum Chamber) refusing permission to appeal against a decision of the First-tier Tribunal (Immigration and Asylum Chamber) amenable to judicial review on any ground or grounds other than (a) outright excess of jurisdiction, or (b) denial of procedural justice, as those two grounds were described by the Court of Appeal in R (On the application of Cart) v the Upper Tribunal and others [2010] 4 All ER 714, [2010] EWCA Civ 859 ("Cart"), and, if so, on what other ground or grounds. That is the preliminary issue which has to be determined in this application for judicial review.

Facts

2. For the purpose of determining that preliminary issue a brief summary of the factual background will suffice. The claimant is a national of Pakistan who last entered the United Kingdom as a visitor in June 2007. In March 2010 he claimed asylum on the basis that he had converted to Christianity and would be at risk of persecution if he returned to Pakistan. The Secretary of State did not accept that the claimant was a genuine convert to Christianity, nor did Immigration Judge Blandy of the First-tier Tribunal (Immigration and Asylum Chamber), who dismissed his appeal in a determination promulgated on 30 April 2010.
3. The claimant's application to the First-tier Tribunal for permission to appeal was refused by Senior Immigration Judge Chalkley on 5 May 2010.
4. The claimant sought permission to appeal from the Upper Tribunal and his application was refused by the Ouseley J sitting as a judge of the Upper Tribunal on 10 May 2010. In the notice of decision Ouseley J said:

"It is unnecessary to hold an oral hearing of the application for permission to appeal because I consider that it can properly be dealt with on the papers.

Permission to appeal is refused.

Reasons (including any decision on extending time)

Crucial to the decision was the finding that the applicant was not a genuine convert to Christianity. The question of how a genuine convert would be treated did not arise. The finding that the pre-baptism course and the act of baptism itself took place, and there was some knowledge of aspects of Christianity does not undermine or prevent at all the reasonable conclusion on the evidence that the conversion was not genuine."

5. The claimant applied for permission to apply for judicial review on 24 June 2010. His Honour Judge Nicholas Cooke QC granted permission to apply for judicial review on 4 August 2010 saying that it was arguable that the decision to reject the genuineness of the claimant's conversion may have been the product of adopting too high a standard of proof and that there had been an arguable failure to consider the risk arising from the claimant's baptism. When granting permission to apply for judicial review the judge did not specifically address the point that had been raised in the Secretary of State for the Home Department's summary grounds, that permission should be refused because decisions of the Upper Tribunal to refuse permission to appeal could be challenged by way of judicial review only on the very restricted grounds set out by the Court of Appeal in its judgment in Cart which had been handed down on 23 July 2010.

The Court of Appeal's decision in Cart

6. In Cart the Court of Appeal (Sedley, Richards LLJ and Sir Scott Baker) upheld, albeit for somewhat different reasons, the decision of the Divisional Court (Laws LJ and Owen J) on the 1 December 2009, [2009] EWHC 3052 Admin, that decisions of the Upper Tribunal refusing permission to appeal from the First-tier Tribunal were amenable to judicial review but the grounds on which they were amenable to judicial review were limited to what the Court of Appeal described as (a) "outright excess of jurisdiction" (pre-Anisminic jurisdictional error) and (b) "denial of procedural justice" (denial of the right to a fair hearing): see paragraphs 4 and 5 of the judgment of the court delivered by Sedley LJ.
7. In Cart the court was concerned with a decision of an Upper Tribunal Judge sitting in the Administrative Appeals Chamber in respect of an application for permission to appeal from a decision of the FTT (Social Entitlement Chamber). Prior to the creation of the new tribunal system by the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act" or "TCEA") such an application for permission to appeal would have been determined by a Social Services Commissioner. A decision by a commissioner to refuse permission to appeal had been amenable to challenge on conventional judicial review grounds. In paragraph 31 of the judgment the Court of Appeal said:

"What then of Mr Drabble's contention that social security is a special class of case which has historically, and beneficially, been subject to such review notwithstanding the high legal expertise of the Commissioners, and for that reason should continue to be so? We accept the premise but not the conclusion. One of the principal purposes of TCEA is to unify the procedures of the disparate tribunals gathered into its structure. It contains no space for historical exemptions of the kind Mr Drabble seeks to establish. We put it this way because we are mindful that in Sivasubramaniam this court acknowledged an exception, based on the uniqueness of the subject-matter, in relation to judicial review of asylum decisions. Whether that will continue to be so in the light of what is decided in the present case both here and in Scotland is not for us to predict."

8. Whether the continuation of the exception acknowledged in R (On the application of Sivasubramaniam) v Wandsworth County Court [2003] 1 WLR 475, [2002] EWCA Civ 1738 ("Siva") is consistent with the Court of Appeal's reasoning in Cart is the issue for decision in this case.
9. In Siva the Court of Appeal decided that a decision of a circuit judge to grant or refuse permission to appeal from a decision of a district judge could be challenged by way of judicial review but it could be so challenged only in those very rare cases where the challenge was on the grounds of jurisdictional error in the narrow pre-Anisminic sense, or procedural irregularity of such a kind as to constitute a denial of the applicant's right to a fair hearing: see paragraph 56.
10. The court was satisfied that the regime introduced under section 54 of the Access to Justice Act 1999 ("the 1999 Act") and the Civil Procedure Rules made thereunder provided the litigant with "fair, adequate and proportionate protection against the risk that the judge of the lower court may have acted without jurisdiction or fallen into error". The Administrative Court should summarily in the exercise of its discretion refuse applications for permission to apply for judicial review in such cases because:

"Parliament has put in place an adequate system for reviewing the merits of decision made by district judges and it is not appropriate that there should be further review of these by the High Court. This, we believe, reflects the intention of Parliament when enacting section 54(4) of the Act." (paragraph 54)

11. In reaching that conclusion the court recognised that permission to claim judicial review was regularly granted in respect of refusals of permission to appeal by the Immigration Appeal Tribunal ("IAT"). In paragraphs 51 and 52 the court described the anomaly and the justification for it:

"51. On the face of it, judicial review of such a decision might seem anomalous. In Robinson v Secretary of State for the Home Department [1997] Imm AR 568 the Court of Appeal declined to give general guidance to the Tribunal as to the criteria that it should apply when deciding whether to give leave to appeal. The court did, however, indicate that a higher hurdle than mere arguability had to be crossed. If the Tribunal errs in its evaluation of the prospects of success of an appeal as a result of an error of law which is apparent from its reasons, permission to claim judicial review may be granted. In reality, the application for permission to claim judicial review comes close to being a renewed application for permission to appeal to the Tribunal. The Tribunal has the qualities of a court – certainly to the extent of satisfying the requirements of Article 6 of the European Convention on Human Rights. If judicial review of refusal of permission to appeal by the Tribunal is appropriate, is there any basis on which it can be ruled out of court where the challenge is to the refusal of permission to appeal by a Judge of the County Court?

52. There are, in our judgment, special factors which fully justify the practice of entertaining applications for permission to claim judicial review of refusals of leave to appeal by the Tribunal. In asylum cases, and most cases are asylum cases, fundamental human rights are in play, often including the right to life and the right not to be subjected to torture. The number of applications for asylum is enormous, the pressure on the Tribunals immense and the consequences of error considerable. The most anxious scrutiny of individual cases is called for and review by a High Court Judge is a reasonable, if not an essential, ingredient in that scrutiny."

The Parties' Submissions in Outline

12. In a nutshell, Mr Gill QC submitted on behalf of the claimant that the "special factors" which had persuaded the court in Siva that the apparently anomalous position in respect of asylum appeals was justified were still applicable, and whatever the position might be in relation to the other Chambers of the Upper Tribunal those special factors continue to justify the making of an exception in respect of decisions of Upper Tribunal judges sitting in the Immigration and Asylum Chamber to the limitations imposed by Cart on the grounds on which decisions of the Upper Tribunal may be challenged by way of judicial review.
13. On behalf of the second defendant, the Secretary of State for the Home Department, and the interested party, the Secretary of State for Justice, Mr Eadie QC submitted that on a proper analysis of the Court of Appeal's reasoning in Cart there was no more scope for a "historical exemption" in the case of decisions by Upper Tribunal judges in the Immigration and Asylum Chamber than there had been for a "historical exemption" in the case of decisions by those Upper Tribunal judges who are the successors of the Social Security Commissioners.
14. Both Mr Gill and Mr Eadie recognised that in this court Cart must be the starting point. The Supreme Court granted permission to appeal in that case on 22 November 2010 and it is currently envisaged that the Supreme Court will hear the appeal in Cart together with an appeal from the decision of the Inner House of Session in Eba v Advocate General [2010] CSIH 78 (a non-immigration case in which the decision of the Inner House is to the opposite effect of that of the Court of Appeal in Cart) in mid-March 2011. Before this court both Mr Gill and Mr Eadie reserved the right to argue that Cart was wrongly decided and that either (a) decisions of all of the Chambers of the Upper Tribunal were amenable to judicial review on conventional judicial review grounds with no further limitation (Mr Gill); or, (b) decisions of the Upper Tribunal were not amenable to judicial review at all (Mr Eadie).
15. I have referred to decisions of the Immigration and Asylum Chamber of the Upper Tribunal rather than "asylum decisions" because the parties were agreed that it would not be practicable to distinguish between asylum and non-asylum decisions of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal. While there are some immigration cases which do not engage either the European Convention on Human Rights (ECHR) or the Refugee Convention and are simply concerned with the Immigration Rules, there is at least some degree of overlap in very many of the cases considered by the Immigration and Asylum Chambers and the question whether there is an overlap, and, if so, to what extent in any particular case is not infrequently one of the matters in issue before the First-tier Tribunal and the Upper Tribunal. However, for convenience, I will refer to cases dealt with by the Immigration and Asylum Chambers of the First-tier Tribunal and Upper Tribunal as "asylum appeals".

The Statutory Framework

16. Before considering the rival submissions in more detail it is helpful to outline the changing role of judicial review in the appellate process in asylum cases. When Siva was decided in November 2002 there was a two-tier appellate structure for asylum cases. An appeal to an immigration adjudicator could be followed, with the permission of the IAT, by an appeal on both fact and law. From the adjudicator's decision to the IAT. At that time judicial review challenges to decisions of the IAT to refuse permission to appeal formed a substantial part of the workload of the Administrative Court: see paragraph 20.69 of McDonald's Immigration Law and Practisce, 8th Edition ("McDonald").
17. The Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") limited appeals to the IAT to appeals on points of law and replaced judicial review of refusals of permission to appeal by the IAT with statutory review, a review by a High Court judge on the papers, as from 1 April 2003: see section 101 of the 2002 Act. The statutory review procedure under the 2002 Act did not last for very long. As from 4 April 2005 it was replaced by the procedure for reconsideration under section 103A of the Asylum and Immigration (Treatment of Claimants et cetera) Act 2004 ("the 2004 Act") which abolished the IAT and introduced a one-tier appellate system of a single appeal to the AIT from an adverse decision by the Secretary of State. Any material error of law in the AIT's decision was corrected not by appeal but by a process of reconsideration by the AIT. If the AIT refused to order reconsideration the aggrieved party could ask the High Court to review the matter and to order the AIT to reconsider its decision. That review was carried out on the papers and the High Court's decision as to whether or not the AIT should reconsider its decision was final: see section 103A(5), (6) and (9).
18. In R (G) v Immigration Appeal Tribunal [2005] 1 WLR 1445 [2004] EWCA Civ 1731, the Court of Appeal having considered the Siva case concluded that the statutory scheme under the 2002 Act, including statutory review of decisions by the AIT to refuse permission to appeal, provided "adequate and proportionate protection of the asylum seeker's rights" and that it was:

"... accordingly a proper exercise of the court's discretion to decline to entertain an application for judicial review of issues which have been or could have been the subject of statutory review."

See paragraph 26 of the judgment of the court given by Lord Phillips MR.

19. In R (F Mongolia) v AIT [2007] EWCA Civ 769, [2007] 1 WLR 2523, the Court of Appeal rejected the appellant's submission that there were material differences between the statutory review procedure under the 2002 Act and the review procedure in section 103A introduced by the 2004 Act and concluded that the decision in R (G) was equally applicable to the new regime under the 2004 Act: see paragraphs 14 and 18 of the judgment of the court given by Buxton LJ. Thus, a refusal by a senior immigration judge to order reconsideration could be reviewed only on the papers under section 103A by a High Court judge whose decision was final. Judicial review of a senior immigration judge's refusal to order reconsideration was not available.
20. It is fair to say that section 103A was a legislative compromise. When seeking to establish the AIT and the one-tier appellate system the government had originally proposed to oust the jurisdiction of the higher courts altogether. The proposed ouster clause was widely condemned and the review provisions in section 103A were enacted by Parliament instead: see the discussion in paragraph 18.10 of McDonald.
21. When the Upper Tribunal and the First-tier Tribunal were introduced by the 2007 Act the recently created one-tier AIT was excluded from the new two-tier appellate structure. The AIT was added to the list of tribunals in Part 4 of Schedule 6 to the 2007 Act by Article 2 of the Tribunals Courts and Enforcement Act 2007 Order 2010, SI 2010/20, made under section 37 of the Act. Once the AIT was included in Schedule 6 it was possible to use the power conferred on the Lord Chancellor by section 30 to transfer its functions to the First-tier Tribunal and the Upper Tribunal by virtue of the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010, SI 2001/21 ("the 2010 Order") which came into effect on 15 February 2010.
22. When Parliament approved the making of the 2010 Order by affirmative resolution it did so against the background of a legislative framework in which judicial review had effectively been replaced as a means of challenging decisions of the IAT/AIT to refuse permission to appeal/to order reconsideration with a process of statutory review on the papers by a High Court judge whose decision was final. The legal context in which Parliament affirmed the making of the 2010 Order also included the decision of the Divisional Court in the Cart case on 1 September 2009: that decisions of the Upper Tribunal were amenable to judicial review, but only on the grounds identified in paragraph 56 of Siva: see above.

The Parties' Submissions in More Detail

23. Mr Gill submitted that the Court of Appeal in Cart had been careful not to cut down the exception in asylum cases that had been recognised in Siva. In essence he submitted that "context is everything": see Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, [2001] UKHL 26 at 28, and that a "one size fits all" test for all of the wide range of decisions now falling within the jurisdiction of the different Chambers of the Upper Tribunal was neither necessary nor appropriate. He drew attention to the particular features of asylum appeals:
24. (1) They were concerned with the most serious inferences with the most fundamental rights, with matters of life and death, torture or ill-treatment, contrary to Article 3 of the ECHR and/or persecution under the Refugee Convention.
25. (2) Appellants before the First-tier Tribunal (Immigration and Asylum Chamber) are often among the most vulnerable in society. They may include children, the mentally unwell and those who have suffered torture or serious ill-treatment.
26. (3) There are problems with representation before both the First-tier Tribunal and the Upper Tribunal. Due to difficulties in obtaining legal aid many appellants before the First-tier tribunal (Immigration and Asylum Chamber) are unrepresented, and in many cases there is no Home Office representative (HOPO). Thus the judge in the First-tier Tribunal may have to deal with an unrepresented appellant who does not speak English without any assistance from the respondent to the appeal.
27. (4) The relevant law under the Immigration Rules, the ECHR and the Refugee Convention is both complex and continually evolving.
28. (5) The consequences of an error by the First-tier Tribunal, or by the Upper Tribunal when considering on the papers whether there is an error of law by the First-tier Tribunal, are potentially very grave not merely for the individual appellant but also for the United Kingdom which may be placed in breach of its international obligations under the ECHR and/or the Refugee Convention.
29. Mr Gill submitted that all of these factors have been recognised by the courts and they have led the courts to the conclusion that asylum cases "call for the most anxious scrutiny": see, for example, Bugdaycay v Secretary of State for the Home Department [1987] 1 AC 514 per Lord Bridge at 531 letters F to G. In R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929 the Court of Appeal said that the Immigration Appeal Tribunal should consider of its own motion "an obvious point of [Refugee] Convention Law which favours the applicant even though he has not taken it": see per Lord Woolf MR giving the judgment of the court at page 946.
30. In R v Secretary of State for the Home Department ex parte Turgut [2001] 1 All ER 719 the Court of Appeal in judicial review proceedings of a decision by the Secretary of State not to grant the applicant exceptional leave to remain was prepared to consider fresh evidence which was not before the Secretary of State when the decision was taken: see per Schiemann LJ at 735 letters F to G. Turgut was considered by the Court of Appeal in E v Secretary of State for the Home Department [2004] QB 1044, [2004] EWCA Civ 49 in which the court decided that while the admission of new evidence on an appeal to the IAT was subject to Ladd and Marshall principles those principles could be departed from in exceptional circumstances where the interests of justice so required: see paragraph 91 of the judgment of the court given by Carnwath LJ.
31. In support of his submission that cases which are now dealt within the Immigration and Asylum Chambers of the First-tier Tribunal and Upper Tribunal had historically been given and still require special treatment by reason of the factors referred to above Mr Gill relied on evidence contained in a witness statement dated 7 December 2010 of his instructing solicitor Jayesh Sasdev. Since the hearing began the next day, 8 December, the respondent did not have an opportunity to respond to that evidence. The parties were content that I should consider the evidence insofar as it dealt with matters of general knowledge that would be familiar to those with experience of appeals in this field, for example the absence of HOPOs from many hearing before immigration judges, but that it would not be fair for me to rely on matters of detail in the witness statement which might be disputed by the respondent. Since the hearing of this application for judicial review may well be merely the first step in the progress of this case to join Cart and Eba in the Supreme Court it is sensible to admit this evidence, even though it was filed very late, and to permit the respondent to reply to it, if so advised, so that the relevant background information can be placed before the Supreme Court if it decides that it is appropriate to grant permission to appeal.
32. Against this legal and factual background Mr Gill submitted that the court should exercise its discretion to permit judicial review of decisions by the Immigration and Asylum Chamber of the Upper Tribunal not merely on the two Cart grounds, outright excess of jurisdiction and denial of procedural justice, but also on the following additional grounds:
33. (1) Where the appeal was concerned with the United Kingdom's obligations under international or European law, for example under the Refugee Convention or the ECHR.
34. (2) Where there was a clear and obvious error" and the appeal had a "strong prospect of success": see Robinson above.
35. (3) Where the appeal raised an issue of general public importance.
36. (4) Where there had been a failure of procedural justice which while not amounting to a denial of procedural justice nevertheless may have affected the outcome of the appeal.
37. (5) Other exceptional cases.
38. Pausing there, these "suggested limitations" on the scope of judicial review would, in my judgment, be quite unworkable. For the individual claimant any error in his case would be a "clear and obvious" one. The procedural failure in his case might well have affected the outcome of his case and even if his appeal did not engage the ECHR and/or the Refugee Convention it would, at least from his point of view, raise an important point of principle, or be one of those "exceptional cases" where judicial review should be permitted. Deciding whether the claimant's assessment of his own case was correct would occupy a great deal of both the Administrative Court and the Court of Appeal's time: considering the application for permission to apply for judicial review on the papers and at a renewed oral hearing in the Administrative Court, and if the application was refused then repeating that process, of consideration on the papers followed by an oral hearing, in the Court of Appeal.
39. In reality, as Mr Eadie submitted, the choice (assuming that Cart is correctly decided) is between the very limited grounds of challenge permitted by Cart or an unfettered ability to challenge the Upper Tribunal (Immigration and Asylum Chamber's) decisions to refuse permission to appeal on conventional judicial review grounds.
40. Mr Eadie submitted that the reasoning in Cart applied equally to the decisions of all of the Chambers of the Upper tribunal including the Immigration and Asylum Chamber. He submitted that there were four strands to the Court of Appeal's reasoning in Cart. First, there had been a "complete reordering of administrative justice brought about by the legislative enactment of Sir Andrew Leggatt's report 'Tribunals for Users 2001'" (paragraph 27). The 2007 Act was not a consolidating statute. The old tribunal system, (or more accurately, lack of system,) had been swept away and replaced with a wholly new appellate structure. In enacting that new structure Parliament had struck the balance between two interests: the need for finality and the quest for judicial perfection.
41. Second, the intention was that the new system should be self-sufficient so that errors in the First-tier Tribunal could be corrected by the Upper Tribunal and thereafter there would be only limited recourse to the higher courts on second appeal grounds (paragraphs 30 and 42).
42. Both the First-tier Tribunal and the Upper Tribunal have power to review their own decisions: see sections 9 and 10 of the 2007 Act. An appellant who wished to appeal from the First-tier Tribunal to the Upper Tribunal required permission to do so and had first to ask the First-tier Tribunal for permission to appeal: see rule 21 of the Tribunal Procedure (Upper Tribunal Rules 2008 ("the 2008 Rules"). Any appellant wishing to appeal from the Upper Tribunal to the Court of Appeal must obtain the permission of the Upper Tribunal or the Court of Appeal (section 13(4)), and the Lord Chancellor is given power, which he has exercised, to apply by order second appeal criteria to that process (see section 13(6) and (7).
43. There is no right of appeal to the Court of Appeal against an "excluded decision" by the Upper Tribunal. A decision under section 11(4)(b) refusing permission to appeal from the First-tier Tribunal is an "excluded decision", see section 13(8)(c). Thus Parliament had enacted a detailed appellate structure which prescribed the decisions which could be appealed, the tribunal or court to which they could be appealed and the conditions which had to be satisfied by any would-be appellant.
44. Third, the Court of Appeal had made it clear in Cart that the scope of judicial review available in relation to any amenable decision making body was not simply a matter of discretion (as it had sometimes been described in the earlier cases), but a matter of law (see paragraph 28). Any principled decision as to the scope of judicial review in this context must therefore "implement Parliament's intent in enacting the Leggatt reforms", and in so doing must "secure the boundaries of the [new] system but not invade it" (see paragraph 42). In so concluding the court was following the approach of the Court of Appeal in R(G). In paragraphs 20 and 21 of the court's judgment in that case Lord Phillips MR had said:

"20. Where Parliament enacts a remedy with the clear intention that this should be pursued in place of judicial review, it is appropriate to have regard to the considerations giving rise to that intention. The satisfactory operation of the separation of powers requires that Parliament should leave the judges free to perform their role of maintaining the rule of law but also that, in performing that role, the judges should, so far as consistent with the rule of law, have regard to legislative policy.

21. Thus, in Sivasubramaniam, this Court had regard to the fact that the objects of the relevant provisions of the Access to Justice Act 1999 were to avoid a waste of judicial resources and to ensure that the level of judge dealing with a potential appeal was appropriate to the dispute. In the present case it is the clear intention of Parliament, as explained by Collins J, that statutory review under section 101 of the Act should be used in place of judicial review. The reason for that intention is the wish to process asylum applications with expedition. That is a legitimate objective ... It is right to have regard to that objective, but this cannot justify refraining from the use of judicial review if the alternative of statutory review will not provide a satisfactory safeguard for those who are, or may be, entitled to asylum."

45. Mr Eadie submitted that if Parliament's intention in implementing the new tribunal structure was to be respected there was no scope for the retention of "historical exemptions" in any of the Chambers of the Upper Tribunal.
46. Fourth, although the Court of Appeal did not agree with the Divisional Court's view of the status of the Upper Tribunal (as an alter ego of the High Court) it did agree with the conclusion of Laws LJ in the Divisional Court that the new tribunal structure was sufficient to protect the rule of law (in the refugee context, to provide a satisfactory safeguard for those who are or may be entitled to asylum): see paragraph 94 of the judgment of Laws LJ, and paragraph 14 of the judgment of Sedley LJ.
47. Full account should be taken of the expertise of the various Chambers of the Upper Tribunal and the importance attached by Parliament in the 2007 Act to that expertise. The Senior President of Tribunals must have regard, amongst other matters, to:

"The need for members of tribunals to be expert in the subject matter of, or the law to be applied in cases in which they decide matters."

See section 2(3(c) of the 2007 Act).

48. Under section 23 of the Act the Senior President and the Chamber Presidents may give practice directions for the First-tier Tribunal and the Upper Tribunal and for their particular Chambers respectively.
49. In paragraph 6.4 of his Practice Statements for the Immigration and Asylum Chambers dated 10 February 2010 the Senior President has directed that:

"An application for permission to appeal to the Upper Tribunal is to be decided by one Upper Tribunal judge from those approved by the Senior President or the Chamber President."

50. The Chamber President, Blake J, has selected a group of approximately eight experienced Senior Immigration Judges to be responsible for deciding applications for permission to appeal to the Upper Tribunal. Those experienced Senior Immigration Judges are on occasions supplemented by High Court judges such as Ouseley J in the present case. Their decisions are usually taken on the papers, but the Upper Tribunal does have power under rules 5(1) and 5(1(f) and (g) of the 2008 rules to hold an oral hearing if it considers it appropriate to do so. The expertise of the former AIT was acknowledged by the Supreme Court in MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49: see paragraph 43 of the court's judgment delivered by Lord Dyson.

Discussion

51. I accept the respondent's submissions. There is no room for the survival of "historical exemptions" in the new tribunal structure introduced by the 2007 Act. I readily accept that asylum appeals do have distinctive features of the kind described by Mr Gill, but as the Court of Appeal said in Cart one of the basic purposes of the 2007 Act is to unify the procedures of the many and disparate tribunals that have been gathered into the new appellate structure. All of those tribunals have their own distinctive features and the differences between the Immigration and Asylum Chamber and the other Chambers of the Upper Tribunal should not be overstated. Many appellants in other Chambers of the First-tier Tribunal are unrepresented. Appellants in other Chambers, for example those appearing before the Health Education and Social Care Chamber and the Social Entitlement Chamber, are often amongst the most vulnerable of those in society. Whilst some of the tribunals are concerned simply with financial matters, for example those now forming the Tax Chamber, others, for example the Health, Education and Social Care Chamber in its capacity as the successor to the Mental Health Review Tribunal, are concerned with "fundamental" human rights such as the right to liberty. Even those tribunals which are concerned "only with money" such as the Lands Chamber as successor to the Lands Tribunal may be dealing with the compensation to be paid by central or local government for the compulsory acquisition of a citizen's home; a grave but necessary interference with his Article 8 rights.
52. Immigration and asylum law is undoubtedly complex but so too is the law administered by the other Chambers of the First-tier Tribunal and the Upper Tribunal. To take one example, social security law, the area of law in issue in Cart is, at least to this non-expert in that particular field, often bafflingly complex and it not infrequently raises questions as to the manner in which the United Kingdom is, or is not, implementing the obligations imposed by various European Directives dealing with such matters as equality/discrimination. The ECHR permeates to a greater or lesser extent the work of all of the Chambers of the First-tier Tribunal and the Upper Tribunal. Thus while there are differences between the jurisdictions exercised by the Chambers of the Upper Tribunal, those differences do not provide any principled justification for maintaining the Siva historical exemption. Well before the enactment of the 2007 Act that exemption had, in any event, been significantly curtailed in practice by the 2002 and 2004 Acts: see above. It had been recognised by the Court of Appeal that statutory review on the papers by a High Court judge provided "adequate and proportionate protection" for those seeking asylum.
53. Once it is recognised that the scope of judicial review available in respect of the Immigration and Asylum Chamber of the Upper Tribunal is a matter of law, the only principled way in which that scope can be determined is to seek to ascertain Parliament's intention in setting up the new tribunal system and to ensure that the grounds on which judicial review may be sought secure the boundaries of that new system and do not invade it. In my judgment there can be no doubt that just as Parliament in enacting the Access to Justice Act 1999 set up a "coherent statutory scheme ... governing appeals at all levels short of the House of Lords" for the civil justice system (see paragraph 48 of Siva), so in enacting the 2007 Act did Parliament set up a wholly new and coherent statutory scheme governing appeals at all levels short of the Supreme Court for the tribunals system. Maintaining a "historical exemption" for challenge by way of judicial review in respect of decisions by the Immigration and Asylum Chamber of the Upper Tribunal would be a significant invasion of the coherence of that new system. For the reasons given in Cart the system established for the Immigration and Asylum Chambers can be secured only by adopting the Siva model.
54. It is of no consequence that the AIT was not initially included in the two tier First-tier Tribunal and Upper Tribunal structure established by the 2007 Act. The Act expressly enabled additional tribunals to be brought within the new structure: see sections 30 and 37. Since the new structure is, on its face, a "coherent and comprehensive edifice" (see paragraph 42 of Cart) it must have been obvious to Parliament what system it was "buying into" when it approved by affirmative resolution, first, the amendment of Schedule 6 and then the making of the 2010 Order by the Lord Chancellor. Of course it is vital that the system provides adequate and proportionate protection for those whose asylum claims have been rejected by the Secretary of State, but Parliament clearly thought that one of the advantages of the new tribunal system with its different Chambers was the ability to focus expertise in the subject matter and the law related to particular topics where it is most needed. Unlike the much broader jurisdiction of the General Regulatory Chamber and the Health, Education and Social Care Chamber of the First-tier Tribunal and the Administrative Appeals Chamber of the Upper Tribunal, the Immigration and Asylum Chambers of both the First-tier Tribunal and the Upper Tribunal are "single issue" Chambers. This enables Immigration Judges and Senior Immigration Judges at both levels of the tribunal system to focus a considerable amount of their specialist knowledge upon the determination of asylum appeals. Although a High Court judge is no longer involved by way of statutory review, the replacement of High Court judges by the expertise of tribunal judiciary is inherent in the new system. Thus judicial review of decisions by the Mental Health Review Tribunal and the Immigration Services Tribunal has been replaced by appeal to the Administrative Appeals Chamber of the Upper Tribunal. For further examples of this process see the Appendix to Cart.

Conclusion

55. The answer to the preliminary question is that a decision of a judge of the Upper Tribunal (Immigration and Asylum Chamber) refusing permission to appeal against a decision of a judge of the First-tier Tribunal (Immigration and Asylum Chamber) is not amenable to judicial review on any grounds other than outright excess of jurisdiction or denial of procedural justice as defined in Cart.
56. I have said that this decision is simply the first step towards consideration of this issue by the Supreme Court. The parties are agreed on one thing, and I endorse their jointly expressed view, that this is an appropriate case for the grant of a certificate under section 12 of the Administration of Justice Act 1969 so that the inevitable appeal against my decision can leapfrog to the Supreme Court if the Supreme Court considers that it is appropriate to grant permission to appeal and to hear the appeal in this case together with that of Cart and Eba. The preliminary issue does raise a point of law of general public importance and that point does largely depend on the interpretation of the 2007 Act as to which this court is bound by the decision of the Court of Appeal in Cart.