Upper Tribunal Permission Refusals: A Reasons Challenge Must Establish a Fundamental Breach of Natural Justice

1. Introduction

This decision concerns the tightly restricted circumstances in which the Court of Session may review the Upper Tribunal’s refusal of permission to appeal. Its central distinction is between an allegedly incorrect decision and a fundamentally unfair decision-making process. Following section 11A of the Tribunals, Courts and Enforcement Act 2007, the former does not, without more, permit judicial review.

The petitioner, a Sri Lankan asylum seeker, challenged the Upper Tribunal’s refusal of permission to appeal against an unsuccessful protection appeal. He argued that serious inadequacies in the tribunal’s reasons amounted to a fundamental breach of natural justice. The respondent was the Advocate General for Scotland, acting on behalf of the Secretary of State for the Home Department.

Lady Tait dismissed the petition. Although a sufficiently serious failure to give reasons could, in principle, engage the statutory exception, the particular complaints concerned evidential evaluation and the application of a legal test. They did not disclose the fundamental procedural defect required by section 11A(4)(c)(ii).

The judgment therefore reinforces an existing statutory boundary rather than creating a new general test: a merits challenge cannot become a competent judicial review merely by being described as a serious inadequacy of reasons.

2. Background and Procedural History

The petitioner entered the United Kingdom in 2009 and claimed asylum in 2018, alleging a risk of harm in Sri Lanka. His claim was refused, and an appeal was dismissed in 2019. Further submissions made in 2022 were subsequently refused, but he received another in-country right of appeal.

That appeal relied principally on:

• a purported Sri Lankan arrest warrant;
• a letter from a Sri Lankan lawyer confirming its existence; and
• written and oral evidence from a country expert who considered the warrant authentic and the petitioner at real risk.

The expert’s authentication exercise depended on a local intermediary, previously employed as his driver, who reportedly attended court and obtained oral confirmation of the warrant. The intermediary supplied no direct statement explaining the steps taken.

On 28 December 2024, the First-tier Tribunal dismissed the appeal. It identified an insufficiently documented authentication chain, contradictions in the petitioner’s evidence, and verification that did not conclusively resolve authenticity. Assessing the evidence together, it retained the adverse credibility findings from the 2019 determination, even applying the lower standard of proof relevant to the protection claim.

After permission to appeal was refused by the First-tier Tribunal, the petitioner applied to the Upper Tribunal. Two grounds became central to the judicial review:

1. Ground 2: alleged errors in assessing the expert evidence, the authentication process, and different categories of hearsay.
2. Ground 3: an alleged failure to recognise that the Home Office should have verified the documentary evidence.

The underlying credibility and contradiction findings associated with the other grounds were not subject to sustained challenge in the petition.

The petitioner sought only reduction of the Upper Tribunal’s refusal, so that it would reconsider permission to appeal. He did not ask the Court of Session to determine his asylum claim or directly overturn the First-tier Tribunal’s decision.

The opinion identifies the challenged Upper Tribunal decision as dated 21 May 2025 in its introduction, although paragraph [8] gives 21 March 2025. Nothing in the court’s reasoning turns on that discrepancy.

3. Summary of the Judgment

The court refused the orders sought and dismissed the petition, reserving expenses.

Lady Tait’s decisive conclusions, at paragraphs [37]–[44], were:

• A serious inadequacy in reasons may engage section 11A(4)(c)(ii), but only if it amounts to a fundamental breach of natural justice.
• An evaluative misjudgment, even if legally wrong, is not equivalent to a procedural defect of that gravity.
• The petitioner’s complaints concerned the assessment and weight of evidence and the application of a legal test within a holistic decision-making process.
• Isolating parts of that reasoning did not transform those complaints into fundamental procedural unfairness.
• Accordingly, sections 11A(2) and (3) prevented the proposed review.

An important distinction: paragraphs [16]–[36] set out the respondent’s submissions. Their detailed propositions about documentary reliability, verification and inevitable outcome should not all be treated as separate judicial holdings. The court’s own decision begins at paragraph [37] and rests on the failure to establish the statutory procedural exception.

4. Legal Framework and Reasoning

4.1 Statutory finality and its limited exceptions

Section 11A was inserted into the 2007 Act by section 2 of the Judicial Review and Courts Act 2022. It makes an Upper Tribunal refusal of permission to appeal final and generally excludes judicial review of that refusal. It also prevents an error made in reaching the decision from itself being treated as an excess of the tribunal’s powers.

The preserved exceptions concern whether:

• the Upper Tribunal had a valid application before it;
• it was properly constituted;
• it acted in bad faith; or
• it acted “in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice”.

Only the last exception was relied upon here. The question was therefore not simply whether the Upper Tribunal had misunderstood evidence or misapplied immigration law. It was whether the alleged defect concerned procedural fairness and reached the exceptionally serious statutory threshold.

4.2 Inadequate reasons: a possible exception, not an alternative appeal

The court did not exclude reasons challenges categorically. Both parties accepted that a serious inadequacy could, in principle, establish a fundamental breach of natural justice. Lady Tait nevertheless emphasised that an error or insufficiency in reasoning is not enough.

This distinction preserves a narrow role for judicial supervision without restoring the wider review that Parliament intended to restrict. Otherwise, virtually any alleged legal error could be reformulated as a failure to explain the decision adequately.

The court regarded the petitioner’s approach as an artificial separation of individual passages from a holistic assessment. The challenged passages concerned evidential weight and the application of a verification test. At their highest, the complaints alleged errors of law, not fundamental procedural unfairness.

4.3 Ground 2: documentary reliability, forgery and hearsay

The Upper Tribunal had referred to country information concerning the availability of false documents in Sri Lanka. The petitioner argued that this introduced an unsupported assumption of forgery, although the First-tier Tribunal had merely found the documents insufficiently reliable.

The respondent’s answer was that the country information supplied context: it explained why an undocumented authentication chain mattered. It did not amount to a finding that the particular warrant was forged.

The distinction is legally important. A tribunal may remain unpersuaded that a document is reliable without positively deciding that it is fabricated. A positive finding of forgery, by contrast, requires an evidential foundation. The court’s ultimate conclusion was that the present challenge concerned the Upper Tribunal’s evaluative reasoning, rather than a fundamental procedural defect.

The hearsay complaint had a similar character. The petitioner said the First-tier Tribunal had inconsistently discounted hearsay supporting the expert while relying on hearsay in his own account. The respondent distinguished:

• the unrecorded actions of an absent intermediary forming the factual foundation of an expert opinion; and
• the petitioner’s account of what a relative told him, used to identify inconsistency in his case rather than establish the truth of the reported event.

That distinction does not turn the petitioner’s account into first-hand proof of the underlying event. It concerns the different purposes for which the evidence was considered. Lady Tait treated the complaint as another challenge to evidential evaluation, not as establishing procedural unfairness.

4.4 Ground 3: who determines whether verification is required?

The petitioner argued that the Upper Tribunal had unfairly relied on the difficulty of verification when the Home Office had not advanced that objection. He maintained that contacting the lawyer or court could resolve the documentary questions.

The respondent distinguished two issues:

1. Whether the exceptional verification duty arises: a question for the tribunal applying the relevant legal conditions.
2. Who must perform verification once required: the Home Office.

On the respondent’s analysis, the existence of a simple and conclusive verification process was an integral part of the applicable test, not an extraneous reason introduced without notice. The petitioner’s own grounds had raised possible verification methods. Silence by the Home Office on a particular condition did not amount to a concession that it was satisfied.

The respondent also relied on the expert’s evidence that Sri Lankan courts would not provide written confirmation of the exercise undertaken. This was said to distinguish cases involving straightforward, confirmable enquiries.

Lady Tait’s operative conclusion was narrower than a comprehensive ruling on those factual matters: the complaint challenged the Upper Tribunal’s application of the verification test and therefore did not establish the required fundamental procedural breach. The judgment should not be read as imposing a universal requirement for written confirmation or as holding that Sri Lankan documents can never be verified.

4.5 Jurisdiction comes before materiality and discretionary relief

The respondent alternatively argued that the outcome would inevitably have been the same because independent credibility findings and gaps in authentication remained intact.

The court referred to the distinction between establishing the natural justice exception and deciding whether relief should follow. It did not, however, make inevitability an independent basis of its disposal. The petition failed at the threshold: no qualifying procedural defect had been shown.

This matters because the substantive weakness of a proposed appeal must not be confused with the logically prior question whether the statutory exception permits judicial review at all.

5. Precedents Cited and Their Influence

5.1 Authorities central to the court’s decision

Singh, Petitioners 2025 SLT 146

This Inner House authority supplied the controlling Scottish explanation of section 11A. The supervisory jurisdiction has been redefined rather than wholly abolished, and the legislative restriction is compatible with the rule of law. Lady Tait also relied on its explanation of Parliament’s policy: limiting resource-intensive challenges after consideration by two judicial tribunals. Its significance was structural, identifying the narrow jurisdiction within which the petition had to fit.

Watt v Lord Advocate 1979 SC 120

This case appeared through the discussion in Singh, Petitioners, which described section 11A as a return to the narrower historical scope of supervision associated with that authority. It provided background to the statutory settlement, rather than an independent basis for reviewing the petitioner’s evidence.

R (LA (Albania)) v Upper Tribunal [2024] 1 WLR 1673

Cited in the legal framework, this authority explains that section 11A narrows judicial review to its preserved categories rather than excluding supervision altogether. The petitioner also relied on its discussion of natural justice. It supported the existence of a residual jurisdiction, but not a general entitlement to review arguable legal errors.

R (Karim) v Secretary of State for the Home Department [2024] 1 WLR 5135

This was the principal authority for the proposition that a serious inadequacy in reasons may, in principle, satisfy the natural justice exception. Its accompanying distinction between an error in exercising the permission jurisdiction and a sufficiently grave procedural defect was decisive. Lady Tait held that the present complaints did not cross that boundary.

R (Chowdhury) v Secretary of State for the Home Department [2025] 1 WLR 5507

Both sides accepted that the statutory language should not be supplemented with a judicial gloss. Lady Tait specifically relied on paragraph [57], which identifies procedural fairness, rather than substantive merits, as the jurisdictional focus. It also distinguishes jurisdiction from the later discretionary decision whether a claim could succeed and should receive permission to proceed.

Elkabany v Advocate General for Scotland 2025 SLT 871

Lady Tait expressly adopted its emphasis on the emphatic finality language in sections 11A(2) and (3). Even a plain factual or legal error does not, by itself, reopen review. This reinforced the conclusion that the petitioner’s evaluative complaints were outside the court’s supervisory jurisdiction.

R (Oceana) v Upper Tribunal (Immigration and Asylum Chamber) [2023] EWHC 791 (Admin)

The court quoted this authority for the contextual nature of fairness. Procedural fairness must be understood in the statutory setting and must not be applied in a way that frustrates Parliament’s intention. It supplied the interpretative link between natural justice and the deliberately restricted permission-review regime.

5.2 Authorities concerning documents and expert evidence

These authorities principally informed the parties’ arguments about the underlying proposed appeal. They did not displace the separate section 11A threshold.

J (or AJ) v Secretary of State for the Home Department 2012 SLT 162

The petitioner relied on this case to challenge an allegedly implicit finding of forgery. The respondent distinguished it because neither tribunal had positively found the warrant forged. Its relevance was the boundary between rejecting a document as insufficiently reliable and treating it as fabricated without evidential support.

RP (Proof of Forgery) Nigeria [2006] UKAIT 86

This authority was discussed through J (or AJ). It requires an evidential basis before a tribunal finds or assumes that a document is forged. It did not establish that every refusal to attach weight to a document amounts to such a finding.

Tanveer Ahmed v Secretary of State for the Home Department [2002] UKIAT 00439

The respondent invoked the principle that documentary reliability is assessed in the round. A tribunal need not choose between an affirmative finding of authenticity and an affirmative finding of forgery before deciding what weight a document can bear.

R (Iran) v Secretary of State for the Home Department [2005] Imm AR 535

The petitioner relied on this authority when alleging an unresolved contradiction in the treatment of hearsay. The respondent answered that the evidence served materially different purposes, so the asserted inconsistency did not arise. The court treated the resulting dispute as evaluative rather than procedural.

Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759

Cited in the proposed appeal grounds, this authority supported the proposition that an evidential weighting exercise may be vitiated by legal error or irrationality. Its limitation here was jurisdictional: establishing that an assessment could be legally erroneous would not itself establish fundamental procedural unfairness.

T v Secretary of State for the Home Department [2022] CSOH 72

The respondent relied on this case both for holistic assessment of expert evidence and for the exceptional, cumulative conditions governing verification. Acceptance of an expert’s qualifications does not require uncritical acceptance of an opinion whose factual foundation is disputed.

The “Devaseelan starting point”

The opinion uses this expression without supplying a full case title or citation. It describes the role of the earlier adverse determination as the starting point for assessing the later appeal. The respondent relied on the continuing force of those findings when arguing that any alleged error was immaterial.

5.3 Authorities concerning the exceptional verification duty

QC (verification of documents; Mibanga duty) China [2021] UKUT 00033 (IAC)

This was the verification authority expressly applied by the Upper Tribunal. The discussion emphasised cumulative requirements, including a simple process capable of conclusively resolving both authenticity and reliability. The dispute over applying those requirements was central to Ground 3.

PJ (Sri Lanka) v Secretary of State for the Home Department [2015] 1 WLR 1322

The petitioner relied on this case when arguing that evidence obtained through a bona fide lawyer required proper consideration, including an explanation of how false material could have entered official records. It addressed the substantive handling of documentary evidence, not the later statutory exception to finality.

Tara Kazadi Mbuyi-Biuma [2019] CSOH 93

The judgment also cites this authority as Tara Kazari Biuma, Ptr. The petitioner relied on the possibility of contacting an identified lawyer through a simple enquiry. The respondent distinguished that discrete verification step from the multi-stage and undocumented process here. Both sides accepted that any verification duty falls on the Home Office, while disputing whether its preconditions were satisfied.

RS (aka RUS), Ptr [2015] CSOH 19

This authority appeared in Ground 3 in support of the claimed significance of checking the lawyer’s practice and letter. The court did not separately analyse it, and it supplied no independent basis for satisfying section 11A.

AR [2017] CSIH 52 and AR [2021] CSOH 10

The petitioner invoked these decisions concerning available verification methods, official records and competing documentary material. The respondent characterised them as cases involving readily checkable documents or actual documentary verification, unlike the unvouched oral chain in this case. Their substantive relevance did not establish the fundamentally unfair procedure required under the later legislation.

5.4 Authorities concerning tribunal reasoning and discretionary relief

AZ (error of law; jurisdiction; PTA practice) Iran [2018] UKUT 00245 (IAC)

The respondent cited this authority to support the tribunal’s ability to address the legal questions arising on permission without being confined to reasons expressly advanced by the successful party.

SA (by her litigation friend, David Wedgwood) v The Secretary of State for the Home Department [2025] EWCA Civ 357

This case was invoked for the same proposition. Its function was to answer the suggestion that considering verification difficulty necessarily amounted to introducing an impermissible new reason.

South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953

The respondent relied on the familiar reasons standard: whether the informed reader is left in genuine and substantial doubt about the basis of the decision. Concision is not itself inadequacy. However, the statutory question here required the additional and more demanding element of a fundamental breach of natural justice.

Tesco Stores v Dundee City Council 2012 SC (UKSC) 278

The petitioner cited this authority when arguing that a real possibility of a different decision made the alleged errors material.

Khan v Secretary of State for the Home Department 2015 SC 583

This supported the petitioner’s argument that the respondent bore a demanding burden when asserting inevitable outcome. That dispute did not determine the petition because Lady Tait found that the jurisdictional exception was not established.

6. Significance and Potential Impact

6.1 Challenges must identify unfair procedure, not merely mistaken reasoning

Future petitioners must explain why a defect concerns procedural fairness and why it is fundamental. Alleging that the Upper Tribunal misunderstood an expert, drew an incorrect inference, or applied a verification test wrongly will ordinarily remain a merits complaint unless an additional qualifying procedural failure is demonstrated.

6.2 Earlier immigration authorities retain a limited function

Pre-section 11A cases remain relevant to documentary assessment, verification and arguable legal error. They do not, simply by establishing such an error, provide access to judicial review of an Upper Tribunal permission refusal. The petitioner’s counsel appropriately acknowledged that several authorities addressed a different legal question under the earlier regime.

6.3 Reasons must be read in their overall context

The judgment discourages attempts to elevate individual expressions into jurisdictional defects without considering the decision as a whole. References to general document fraud, for example, must be assessed in context rather than automatically treated as findings of forgery.

6.4 Important limits remain

The decision does not make every reasons failure unreviewable, remove the Home Office’s exceptional verification duty, or authorise unsupported findings of forgery. Nor does it establish a special rule against Sri Lankan documentary evidence. Its contribution is the disciplined separation of those substantive questions from the narrow procedural gateway governing judicial review.

As an Outer House decision applying the Inner House’s approach in Singh, Petitioners, its principal value is practical clarification of the statutory boundary, rather than alteration of the governing appellate framework.

7. Complex Concepts Simplified

Judicial review

A court’s supervision of the legality of another body’s decision-making. It is not automatically a further appeal on the facts or merits.

Reduction

The Scottish remedy setting aside a decision. Here, it would have required the Upper Tribunal to reconsider permission, not automatically grant asylum.

Natural justice

Basic procedural fairness, including a fair opportunity to present a case and impartial consideration. Section 11A requires a fundamental breach.

Competency

Whether the proceedings are legally available within the court’s jurisdiction, distinct from whether the underlying argument is persuasive.

Authenticity and reliability

Authenticity concerns whether a document is what it purports to be. Reliability concerns whether it can safely support the factual conclusion advanced. The two may overlap but are not identical.

Hearsay

Evidence reporting what someone else said. Its weight depends on its source, purpose and supporting circumstances; different hearsay evidence need not receive identical treatment.

Holistic assessment

Considering the evidence together rather than deciding each item in isolation.

Materiality

Whether an error could affect the outcome. It is distinct from the initial question whether section 11A permits review.

8. Conclusion

The petition failed because its reasons challenge concerned evaluative judgments rather than a fundamental breach of natural justice. The judgment confirms that section 11A preserves a narrow safeguard against seriously unfair procedure, not a further route for correcting ordinary errors in Upper Tribunal permission decisions.

The practical lesson is clear: showing why a refusal may be wrong is not the same as showing why the court has jurisdiction to review it.