Natural Justice Exception to Finality of UT Decisions: Scope and Application of Section 11A(4)(c)(ii) in Judicial Review

Introduction

Chowdhury R (on the application of) v Secretary of State for the Home Department [2025] EWCA Civ 656 clarifies the interplay between the finality of Upper Tribunal decisions on permission to appeal (“PTA”) under section 11A of the Tribunals, Courts and Enforcement Act 2007 and the narrow “natural justice” exception that preserves supervisory jurisdiction in the High Court.

Background: Ms Sadia Chowdhury, a Bangladeshi national, arrived in the UK as a student in February 2010. Her leave expired in December 2013 and all subsequent leave applications failed. On human‐rights grounds she claimed article 8 ECHR protection based on her role as carer to her uncle, Dr Mohammed Alam, a British citizen. Her appeal to the First‐tier Tribunal (FTT) was dismissed in March 2022; permission to appeal to the Upper Tribunal (UT) was refused.

Procedural History: In December 2022 Ms Chowdhury sought judicial review of the UT’s refusal of PTA. Both on paper and at an oral renewal hearing (October 2023) the High Court refused permission. She then appealed in the Court of Appeal, arguing (i) that her case fell within the “natural justice” exception in section 11A(4)(c)(ii), and (ii) that the FTT erred in law on her article 8 family‐life claim.

Summary of the Judgment

The Court of Appeal (Peter Jackson LJ, with Laing and Elisabeth LJJ) held:

Jurisdiction: There was a “genuinely disputable” question whether the UT’s administrative failure to consider supplementary grounds of appeal amounted to a fundamental breach of natural justice, thus engaging section 11A(4)(c)(ii) and permitting High Court review.
Test for Permission: Once jurisdiction exists under the natural justice exception, the established test for permission to apply for judicial review applies (i.e. realistic arguability), not the old “Cart” second‐appeal test.
Merits: Even so, the Court agreed with Griffiths J that the omitted “family life” ground had no real prospect of altering the outcome. The FTT’s proportionality assessment under article 8—balancing Ms Chowdhury’s private/family life against the public interest in immigration control—would have been the same had the relationship been characterised explicitly as “family life.”
Result: Permission to apply for judicial review was granted (to clarify these principles) but the substantive claim was dismissed.

Analysis

Precedents Cited

Cart v Upper Tribunal [2011] UKSC 28: abolished by section 11A, established limited grounds for JR of UT PTA refusals.
Anisminic v Foreign Compensation Commission [1969] 2 AC 147: distinguished “excess of jurisdiction” and modern review.
R (LA (Albania)) v SSHD [2023] EWCA Civ 1337: background to section 11A’s enactment.
R (Razgar) v SSHD [2004] UKHL 27: established proportionality approach under article 8 ECHR.
Rhuppiah v SSHD [2018] UKSC 58: interpretation of “little weight” in section 117B NI&AA 2002.
Beoku-Betts v SSHD [2008] UKHL 39: impact on third‐party rights under article 8.
Mobeen v SSHD [2021] EWCA Civ 886: precarious immigration status and proportionality.

Legal Reasoning

1. Section 11A Framework: Section 11A(2)–(3) makes UT decisions to refuse PTA final, disapplying the supervisory jurisdiction. Subsection (4)(c)(ii) preserves review where the UT “acted … in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice.”

2. Jurisdictional Question: The Court applied three principles:

Review under s11A only extends to the narrow “exception” grounds.
The exception triggers jurisdiction if there is a “genuinely disputable,” realistically arguable question whether the UT’s decision “involves or gives rise” to a natural‐justice breach.
Discretionary factors (alternative remedies, merits) do not defeat jurisdiction but go to permission.

In Ms Chowdhury’s case the UT failed to feed the claimant’s unopposed application to amend her grounds into the judge’s papers. That procedural defect was analogous to the paradigmatic “judge failed to read the relevant papers” scenario (Barclays v Guy; R (Wingfield) v Canterbury). It was realistically arguable that this was a fundamental breach of her right to be heard.

3. Test for Permission: Having jurisdiction under the exception, the ordinary JR‐permission test applies: is the claim realistically arguable? The old “Cart test” is displaced by s11A.

4. Merits of the Omitted Ground: The omitted point (that the FTT wrongly held no family life existed) had no real prospect of success because, on the FTT’s own facts, all relevant proportionality factors would have been identical. Indeed, whether dubbed “private life” or “family life,” the balance remained firmly in favour of removal.

Impact

This decision provides authoritative guidance on:

The narrow scope of High Court review under s11A(4)—only “fundamental” procedural breaches engage jurisdiction.
Distinguishing the question of jurisdiction (is review permitted?) from the discretionary grant of permission (should review proceed?).
The correct test for JR‐permission after an UT refusal of PTA—realistic arguability, not the second‐appeals “Cart” test.
Practical risk to appellants—failure to lodge, file or bring forward supplementary grounds can engage natural‐justice review but will not succeed if no real substantive impact.
Reinforces the primacy of proportionality analysis under article 8 for immigration removal.

Immigration practitioners should ensure that all grounds for appeal are properly before the UT, and address any procedural defects promptly (e.g. via UT rule 43), while respondents will find reassurance that only truly fundamental unfairness will reopen final UT decisions.

Complex Concepts Simplified

Section 11A Finality Rule: UT refusals of permission to appeal are normally “final”—no JR allowed—unless one of three narrow exceptions applies.
Natural Justice Exception: If a procedural error is so grave that it denies a party a fair hearing (e.g. judge never saw their submission), then review is allowed.
“Genuinely Disputable” vs. “Merits”: The Court first asks whether there is a real argument that the exception applies. If yes, it moves on to whether the claim itself has a chance of success.
Article 8 Proportionality: To prove an unjustified interference with private or family life, applicants must show that the harm of removal outweighs the public interest in immigration control.
“Little Weight” (s117B NI&AA 2002): Private life built during unlawful stay or precarious status is of limited weight in proportionality balancing.
Permission to Apply for JR (“PTAJR”): A two‐stage filter (jurisdiction + realistic arguability) prevents unmeritorious or premature challenges.

Conclusion

Chowdhury v SSHD establishes that while Parliament has conferred finality on UT refusals of PTA, the High Court retains a narrow supervisory role for genuinely fundamental procedural breaches of natural justice. Once jurisdiction is established, the longstanding realistic‐arguability test governs permission to apply for JR. However, parties should not assume that procedural lapses alone guarantee relief—substantive impact remains the decisive factor. This judgment thus strikes a careful balance between the finality of tribunal decisions and the enduring requirement of fair process in our administrative law.