“Final Means Final” — Lord Sandison’s Definitive Construction of s 11A(4)(a) TCEA 2007 on Late Upper Tribunal Applications

Introduction

The Outer House of the Court of Session, in Petition of Mohamed Elkabany for Judicial Review ([2025] CSOH 65), delivers a pivotal clarification of the post-Cart/Eba landscape. The petitioner, an Egyptian asylum-seeker, attempted to overturn the Upper Tribunal’s refusal to admit a permission-to-appeal application lodged 5½ months out of time. He invoked the carve-out in s 11A(4)(a) Tribunals, Courts and Enforcement Act 2007 (“TCEA 2007”), arguing that no “valid” application was ever before the Upper Tribunal (“UT”), thereby sidestepping Parliament’s new finality regime.

Lord Sandison refused permission at the threshold stage under s 27B Court of Session Act 1988, holding that the supervisory jurisdiction was incompetent. The Opinion explains when a late permission-to-appeal request is still a “valid application” and affirms the high bar — indeed near-total bar — to judicial review of UT decisions after the 2022 insertion of s 11A.

Summary of the Judgment

Section 11A(2)–(3) TCEA 2007 renders UT refusals of permission to appeal “final and not liable to be questioned”, with only the narrow exceptions in s 11A(4).
A late application accompanied by a request to extend time is still a “valid application” under s 11(4)(b); the UT simply “does not admit” it if the extension request fails.
Therefore, s 11A(4)(a) is not engaged, and the Court of Session has no supervisory competence.
Even obiter, Lord Sandison found the petitioner’s substantive grounds weak: Denton’s three-stage test was correctly applied; delay was serious; explanation inadequate; merits unexceptional.

Analysis

1. Precedents Cited and Their Influence

Eba v Advocate General for Scotland (2011 SC (UKSC) 1) – established limited JR of UT refusals pre-2022. Lord Sandison traces the historical position.
R (Cart) v UT [2012] 1 AC 663 – English law counterpart to Eba; influenced subsequent statutory reform.
Singh v SSHd [2025] CSIH 4 – rejected Treaty of Union challenge to s 11A. Removes constitutional attack initially pled by petitioner.
Denton v TH White Ltd [2014] 1 WLR 3926 – three-stage test for relief from sanctions; adopted by UT in permission-to-appeal timeliness context.
Onowu [2016] Imm AR 822 – mapped Denton onto UT extensions; expressly endorsed by Lord Sandison.
Other appellate cases (e.g., Mitchell, Hysaj, KM (Bangladesh)) – emphasise strict adherence to procedural deadlines.

These authorities collectively underpin the court’s twin conclusions: (i) Parliament intentionally curtailed JR via s 11A; (ii) procedural discipline around time-limits is a systemic objective outweighing sympathetic factors for individual litigants.

2. Legal Reasoning

Statutory Construction
- Rule 21(6)(b) Upper Tribunal Rules 2008 distinguishes between “not admitted” and “invalid”. Lord Sandison treats the distinction as deliberate.
- Because an application lodged late exists and invokes UT jurisdiction, it satisfies s 11(4)(b); thus s 11A(4)(a) (lack of a valid application) is not triggered.
- Applying McEntegart v Fishman canons, “ordinary meaning” rules out the petitioner’s broader interpretation.
Parliamentary Intention
The 2022 insertion of s 11A was a tightening, not liberalisation, of JR access following Cart/Eba debate. Reading the exception broadly would subvert that purpose and produce “absurd” asymmetry (greater JR for lateness refusals than for merits refusals).
Analogy with JR Permission Stage
A failed permission application remains a valid petition – it just goes no further. Lord Sandison analogises this to the UT scenario, reinforcing the purposive reading.

3. Likely Impact on Future Cases

Locks shut an attempted loophole: litigants cannot resurrect asylum appeals via JR by characterising UT lateness refusals as jurisdictional nullities.
Encourages strict compliance with 14-day Rule 21(3)(aa) deadlines and meticulous evidence of “portal difficulties.”
Signals that Denton/Onowu framework will receive Outer House backing, providing certainty for UT judges and practitioners.
May reduce JR workload by deterring speculative petitions framed under s 11A(4)(a).
Affirms Outer House alignment with English authority post-Cart abolition debates, bolstering UK-wide procedural coherence.

Complex Concepts Simplified

Supervisory Jurisdiction: The Scottish Court of Session’s power to review decisions of lower courts and tribunals for legal error or procedural unfairness.
s 11(4)(b) TCEA 2007: Gives a loser in the First-tier Tribunal the right to seek permission directly from the Upper Tribunal – but only with permission and within tight time limits.
s 11A TCEA 2007: Inserted in 2022, it largely bars court challenges to UT refusals of permission to appeal, unless one of three exceptional gateways (validity, constitution of the UT panel, or bad faith/fundamental procedural defect) is met.
“Valid Application”: An application meeting substantive criteria (right type of case, previous FT permission refusal) and formal criteria (written, requisite documents). Being late does not per se invalidate it; it merely risks non-admission.
Denton Three-Stage Test: 1) How serious is the breach? 2) Is there a good reason? 3) Considering all circumstances (including merits), is extension of time just?

Conclusion

Lord Sandison’s opinion cements the proposition that lateness does not vitiate validity for the purposes of s 11A(4)(a) TCEA 2007. Consequently, most Upper Tribunal refusals to extend time will be immune from judicial review. The decision brings Scottish practice firmly into line with the policy objective of procedural finality and underscores the imperative for appellants and representatives to observe tribunal deadlines scrupulously. Any residual hope of JR now lies only in the narrow corridors of bad faith, fundamental procedural breach, or panel irregularity.

The headline takeaway is simple yet far-reaching: “Final means final”—save for the exceptional gateways explicitly preserved by Parliament. Practitioners must therefore front-load diligence at the First-tier stage and, failing that, act swiftly (and evidentially) within the 14-day window if an Upper Tribunal appeal is sought.