What can I do if my permission to appeal to the Upper Tribunal is refused?
If your permission to appeal to the Upper Tribunal (UT – Immigration and asylum chamber) has been refused, there is no right of appeal to the Court of Appeal. You may therefore consider taking legal advice to make a further application to the Home Office, or if the refusal was an asylum claim, you might decide to make a new claim.
What rights do I have?
After your hearing, you could be told that the UT was wrong in law in refusing you permission to appeal to it and be then able to apply to the Administrative Court (part of the High Court) for approval to make a’ Cart’ Judicial Review, (JR). A Cart Judicial review can take place if:
1) If there was an error of law identified the Upper Tribunals decision to refuse permission to appeal to it can be established
2) If that the error of law in question raises an important point of principle or practice, or shows some other compelling reason for the case to be heard.
A cart JR is brought where there is no further right of appeal to the Court of Appeal from the decision of the UT.
The Judicial Review will be heard on the same facts and evidence, and no fresh information can be introduced. This is because it is a review of what has happened in the past to see if any reasonable tribunal would have made the same decision or not.
The Upper Tribunal (UT) is seized with the jurisdiction generally in JR matters (see below – routes to appeal). To get to that stage where the UT has refused permission to appeal to it, however, you would already have had your appeal (say it was an asylum appeal for example), dismissed by a judge of the First-Tier Tribunal (Immigration and asylum chamber), (the FTT), and permission to appeal to it to take your case to the UT would have been refused, as a result of which you would have taken your permission application direct to the UT.
The UT having refused permission to appeal to it would have given reasons to then enable you to bring a ‘Cart’ judicial review to the High Court. Why is it called a ‘Cart’ Judicial Review? Because the name is taken from the case of R(Cart) v The Upper Tribunal, R(MR( Pakistan)v The Upper Tribunal ( IAC)  UKSC 28.
If permission for a Cart JR is granted by the High Court on paper or at an oral hearing if the paper application to the High Court fails, the case will proceed to a substantive hearing unless it is settled on terms or withdrawn. If it is withdrawn, the party withdrawing will no doubt risk having to pay all the costs up to the date of withdrawal.
There are various time limits from the start of the Cart JR by filing and serving a claim form and an acknowledgement of service.
The Routes to Appeal
Section 11 of the Tribunals Courts and Enforcement Act 2007, provides a right of appeal to the UT on a point of law arising from a decision of the FTT as set out in paragraph 4 above, with permission of the FTT or the UT. Section 13(1) provides a further right of appeal from the UT direct to the Court of Appeal on a point of law, except for an ‘excluded decision ‘which includes a decision of the UT refusing permission to appeal from the FTT to the UT (s. 13 (8 ) (c) which is instead subject to JR under a modified procedure in CPR Part 54.7 (A), a ‘Cart JR’, following the Supreme Court ruling in 2011 as referred to in this article above.
Section 19 of the Tribunals Courts and Enforcement Act 2007( TCEA) ( inserting s. 31A into the Senior Courts Act 1981 (SCA), provides for the transfer of JR applications from the High Court to the UT. So it is only in Cart JR scenarios that the High Court retains jurisdiction.
UK Immigration Refusals, Appeals & Judicial Review
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