Jan (Upper Tribunal: set-aside powers : Pakistan)

Factual and Procedural Background

The Applicant, a national of Pakistan, appealed to the First-tier Tribunal against the Respondent's decision dated 6 January 2015 refusing to vary his leave and directing his removal. The First-tier Tribunal dismissed the appeal on 1 May 2015. The Applicant sought permission to appeal that decision, which was refused by the First-tier Tribunal and subsequently by the Upper Tribunal. The Applicant changed representatives and applied for a review of the Upper Tribunal Judge's refusal decision under section 10 of the Tribunals, Courts and Enforcement Act 2007, citing alleged procedural irregularity. The application was heard before the Upper Tribunal, where the Applicant's representative conceded the application could not succeed.

Legal Issues Presented

1. Whether the Upper Tribunal has jurisdiction and power to set aside or review its own decisions outside the specific powers conferred by rules 43 and 45-46 of the Upper Tribunal Rules.
2. Whether an "excluded decision" of the Upper Tribunal, such as a refusal of permission to appeal, can be set aside or reviewed under section 10 of the Tribunals, Courts and Enforcement Act 2007 or under any inherent or supplementary powers.
3. Whether the circumstances of the Applicant's case, including the alleged procedural irregularity, justify setting aside the Upper Tribunal's refusal decision under rule 43.

Arguments of the Parties

Applicant's Arguments

• The Applicant argued there was a "serious procedural irregularity" in the Upper Tribunal Judge's refusal decision because the Judge did not specifically refer to part of the First-tier Tribunal Judge's decision.
• The Applicant contended it was in the interests of justice to review and set aside the refusal decision despite the application being out of time under rule 43, requesting an extension of time.

Respondent's Arguments

• The Respondent relied on the Court of Appeal decision in Patel, which limits the Upper Tribunal's powers to set aside its own decisions to those expressly provided in rules 43 and 45-46.
• The Respondent asserted that the refusal decision was an "excluded decision" and therefore not subject to review under section 10 of the 2007 Act or inherent powers.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by outlining the possible sources of power for the Upper Tribunal to set aside its own decisions: rule 43 of the Upper Tribunal Rules, section 10 review powers under the Tribunals, Courts and Enforcement Act 2007, inherent powers as a Superior Court of Record, and supplementary powers under section 25 of the 2007 Act.

Rule 43 permits setting aside decisions disposing of proceedings for procedural irregularities, subject to time limits, and is applicable to all Chambers except the Lands Chamber. Section 10 allows limited review of decisions but excludes "excluded decisions" such as refusals of permission to appeal. The Court of Appeal decision in Patel clarified that the Upper Tribunal cannot set aside excluded decisions under section 10, and no inherent or supplementary powers exist to override this limitation.

The Court examined the Applicant's claim of procedural irregularity but found no such irregularity present; the complaint was substantive. Consequently, rule 43 did not apply as none of the procedural grounds were met. The Court concluded that, following Patel, the Upper Tribunal's powers to set aside its decisions are confined strictly to the circumstances set out in rules 43 and 45-46, and that no inherent or broader power to rescind or review excluded decisions exists.

Therefore, the application to set aside the refusal decision was refused as there was no procedural irregularity and the decision was an excluded decision not subject to review.

Holding and Implications

The Court REFUSED the Applicant's application to set aside the Upper Tribunal Judge's refusal of permission to appeal.

The direct effect is that the refusal decision stands, and no further appeal or review is available within the Tribunal system. The Court reaffirmed the binding authority of the Court of Appeal in Patel, establishing that the Upper Tribunal's powers to set aside its own decisions are strictly limited to procedural grounds under rules 43 and 45-46. No inherent or supplementary power exists to rescind or review excluded decisions such as refusals of permission to appeal. This decision confirms and clarifies the limited scope of the Upper Tribunal's jurisdiction in this context but does not establish new precedent beyond applying existing authority.