Introduction

The case LA (Albania) v Secretary of State for the Home Department ([2023] EWCA Civ 1337) adjudicated by the England and Wales Court of Appeal, Civil Division, on November 16, 2023, addresses critical questions regarding the scope of judicial review, specifically the impact of Section 11A of the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act). This case scrutinizes whether the Upper Tribunal's decision to refuse permission for judicial review falls within the High Court's supervisory jurisdiction. The parties involved include Ms. LA, an Albanian asylum seeker, and the Secretary of State for the Home Department.

Summary of the Judgment

The Court of Appeal dismissed Ms. LA's application, determining that Section 11A of the 2007 Act effectively limits the High Court's supervisory jurisdiction over the Upper Tribunal's decisions to refuse permission for judicial review. The court upheld the High Court's decision to deny jurisdiction, finding no genuinely disputable questions that would permit judicial review under the exceptions outlined in Section 11A(4). Consequently, the appeal was dismissed, reinforcing the legislative intent to restrict judicial review in specific circumstances.

Analysis

Precedents Cited

The judgment extensively references several pivotal cases:

• R (Cart) v Upper Tribunal [2011] UKSC 28; [2012] 1 AC 663: Established the "pre-Anisminic excess of jurisdiction and the denial of fundamental justice" test for judicial review scope.
• Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147: Held that any error of law renders a tribunal's decision a nullity.
• O'Reilly v Mackman [1983] 1 AC 237: Interpreted Anisminic to mean that judicial review is available for any error of law.
• R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22; [2020] AC 491: Discussed the boundaries of supervisory jurisdiction concerning procedural fairness.
• LM (Albania) v Secretary of State for the Home Department [2022] EWCA Civ 977: Supported similar grounds to dismiss procedural fairness claims.
• Frater v The Queen [1981] 1 WLR 1468 and Alleyne-Forte v Attorney General of Trinidad and Tobago [1998] 1 WLR 68: Provided analogies on requiring genuinely disputable questions for appeals.

Legal Reasoning

The court's legal reasoning revolves around the interpretation and application of Section 11A of the 2007 Act. It affirms that parliament's clear legislative intent, as expressed through explicit statutory language, takes precedence over common law principles. The judgment reiterates that the High Court's supervisory jurisdiction is not entirely ousted but is constrained by the exceptions delineated in Section 11A(4). The court further clarifies that merely asserting an exception without presenting a genuinely disputable question does not suffice to invoke judicial review.

Moreover, the judgment emphasizes that the definition of "decision" in Section 11A(7), which includes any "purported decision," ensures that even attempts to challenge the Upper Tribunal's authority are encapsulated within the statute's framework. This statutory interpretation aligns with the constitutional principle that no one, including courts, is above the law.

Impact

This judgment solidifies the role of Section 11A in limiting judicial review, thereby setting a clearer boundary for when the High Court can intervene in Upper Tribunal decisions. By reinforcing that only specific exceptions outlined in the statute permit such reviews, the court promotes legislative supremacy and reduces judicial overreach. This decision is likely to streamline the appellate process, reducing the number of judicial reviews and ensuring that only cases with substantial and disputable legal questions receive judicial scrutiny.

Furthermore, the case underscores the judiciary's deference to legislative intent, potentially encouraging clearer statutory drafting in the future to delineate the scope of judicial review more precisely.

Complex Concepts Simplified

Judicial Review

Judicial review is a legal process whereby courts examine the lawfulness of decisions or actions made by public bodies, ensuring they comply with the law.

Supervisory Jurisdiction

This refers to the oversight role of higher courts (like the High Court) in reviewing the decisions of lower tribunals to ensure legality and fairness.

Pre-Anisminic Excess of Jurisdiction

Derived from the case Anisminic Ltd v Foreign Compensation Commission, it refers to any error of law or exceeding of legal authority by a tribunal, rendering its decision invalid.

Ouster Clause

Legislative provisions that seek to exclude or limit the ability to perform judicial review on certain decisions.

Section 11A of the 2007 Act

A statutory provision that limits the High Court's ability to conduct judicial review on decisions made by the Upper Tribunal concerning permission to appeal from the First-tier Tribunal.

The Cart Test

Originating from the R (Cart) v Upper Tribunal case, it sets the standard for judicial review scope, focusing on whether an appeal raises significant points of principle or practice.