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Chowdhury, R (On the Application Of) v Secretary of State for the Home Department
Factual and Procedural Background
The Claimant, a national of Bangladesh, entered the UK as a student in February 2010. Her leave to remain expired in December 2013, after which she remained unlawfully in the UK. In March 2020, the Home Office refused her application for leave to remain on human rights grounds. She appealed this refusal to the First-tier Tribunal (FTT), which dismissed her appeal in March 2022. Permission to appeal (PTA) to the Upper Tribunal (UT) was refused by both the FTT and the UT. The Claimant then sought judicial review in the High Court of the UT's refusal of PTA. Permission to apply for judicial review (PTAJR) was refused by two High Court judges. The Claimant appealed this refusal to the Court of Appeal, which held a rolled-up hearing to consider permission and the appeal together.
The central issue in the FTT appeal concerned whether the Claimant’s removal would breach her right to respect for family life under Article 8 of the European Convention on Human Rights, based on her relationship with her paternal uncle, a British citizen, whom she cared for. The FTT found that although the Claimant provided significant care and shared a strong private life with her uncle, they did not share a family life within the meaning of Article 8. The UT refused permission to appeal the FTT’s decision. The Claimant’s solicitors submitted supplementary grounds of appeal challenging the FTT’s family life finding, but these were not considered by the UT due to an administrative error.
Legal Issues Presented
- Whether the High Court has jurisdiction under section 11A(4)(c)(ii) of the Tribunals, Courts and Enforcement Act 2007 (the "natural justice exception") to entertain the Claimant’s judicial review challenge based on the UT’s failure to consider the supplementary grounds of appeal.
- What is the appropriate test for granting permission to apply for judicial review (PTAJR) in cases falling within the natural justice exception.
- Whether permission to apply for judicial review should have been granted in this case.
Arguments of the Parties
Appellant's Arguments
- The UT’s failure to consider the supplementary grounds of appeal constituted a procedural defect amounting to a fundamental breach of the principles of natural justice, engaging the natural justice exception under section 11A(4)(c)(ii).
- The High Court should have applied the straightforward test of whether the claim was realistically arguable when granting permission to apply for judicial review, rather than the more stringent "Cart test".
- The FTT’s conclusion that there was no family life was wrong in law and inadequately reasoned, and the UT should have granted permission to appeal on that basis.
- The Claimant had a right to amend her grounds of appeal at any time before PTA was determined, and the administrative omission deprived her of this right.
- The alternative remedy suggested by the Secretary of State under rule 43 of the Upper Tribunal Rules was not a sufficient reason to deny jurisdiction or permission, especially given the timing and circumstances.
Respondent's Arguments (Secretary of State)
- The administrative error by the UT did not amount to a fundamental breach of natural justice.
- The FTT’s decision was legally sound and did not contain an arguable error of law.
- The High Court lacked jurisdiction because the case did not fall within the natural justice exception.
- Even if the natural justice exception applied, the correct test was the "Cart test" and permission should have been refused because the FTT’s decision was not wrong in law.
- The Claimant had an alternative remedy under rule 43 of the Upper Tribunal Rules to set aside the UT’s refusal of PTA, negating any fundamental unfairness.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 | Guidance on assessing proportionality in Article 8 claims and statutory provisions on weight to be given to private life established during unlawful presence. | The FTT applied the proportionality test and section 117B of the Nationality, Immigration and Asylum Act 2002, giving little weight to private life established while the Claimant was unlawfully in the UK. |
| Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58 | Interpretation of "little weight" in immigration context under section 117B. | The Judge referenced Lord Wilson’s judgment to support the approach to weighting private life in the context of precarious immigration status. |
| Cart v Upper Tribunal [2011] UKSC 28 | Limits on judicial review of UT decisions refusing permission to appeal; supervisory jurisdiction and the "Cart test". | Discussed the abolition of the Cart jurisdiction by section 11A and the restricted circumstances in which judicial review of UT refusals of PTA is permitted. |
| R (LA (Albania)) v Secretary of State for the Home Department [2023] EWCA Civ 1337 | Background on section 11A of the 2007 Act and the scope of UT refusals of PTA review. | Provided guidance on the interpretation of section 11A and the "genuinely disputable" standard for jurisdiction under the natural justice exception. |
| Sharma v Brown-Antoine [2006] UKPC 57 | Standard for granting permission to apply for judicial review: claim must be realistically arguable. | The Court adopted this standard for permission in cases falling within the natural justice exception. |
| Barclays Bank plc v Guy (no. 2) [2010] EWCA Civ 1396 | Failure to consider relevant papers as a fundamental breach of natural justice. | Supported the proposition that failure to consider proper submissions is a paradigm of fundamental procedural unfairness. |
| R (Wingfield) v Canterbury City Council [2020] EWCA Civ 1588 | Assessment of fundamental breach of natural justice in administrative processes. | Reinforced the approach to assessing procedural fairness holistically. |
| Sivasubramaniam v Wandsworth County Court [2002] EWCA Civ 1738 | Definition of excess of jurisdiction and denial of fair hearing as grounds for judicial review. | Referenced in context of the natural justice exception’s scope. |
| R (Oceana) v Upper Tribunal [2023] EWHC 791 (Admin) | Scope of natural justice exception and principles of fairness in tribunal proceedings. | Guided the Court’s understanding of what constitutes a fundamental breach of natural justice in the UT context. |
| Plescan v Secretary of State for Work and Pensions [2023] EWCA Civ 870 | Rule 43 of the Upper Tribunal Rules and the power to set aside decisions disposing of proceedings. | Considered in submissions about alternative remedies to judicial review of UT refusals of PTA. |
| Cart v Upper Tribunal [2012] 2 WLR 36 (Court of Appeal decision) | Clarification of limits on UT review powers and appeal rights. | Used to argue the statutory intention to block appeals from UT refusals of PTA and the limited scope for review. |
| Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39 | Approach to Article 8 proportionality assessments involving family life. | Referenced regarding the need to consider the impact on both parties in family life claims. |
| Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886 | Consideration of family life created during precarious immigration status in proportionality assessments. | Supported the FTT’s approach and the application of section 117B in this context. |
| R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11 | Principles for assessing family life claims in immigration removal cases. | Affirmed that family life created during precarious immigration status is relevant to proportionality. |
| Jeunesse v The Netherlands [2014] ECHR 1036 | European Court of Human Rights guidance on family life and immigration. | Referenced in support of the proportionality principle relating to family life and immigration status. |
Court's Reasoning and Analysis
The Court began by analysing the jurisdictional framework under section 11A of the Tribunals, Courts and Enforcement Act 2007, which restricts judicial review of UT refusals of permission to appeal to limited circumstances, including fundamental procedural unfairness (the natural justice exception).
It found that the UT’s failure to consider the Claimant’s supplementary grounds of appeal was a procedural defect. The Court examined whether this defect amounted to a fundamental breach of natural justice, concluding that it was at least realistically arguable that it did. The Court noted that natural justice requires a tribunal to consider all proper submissions, and failure to do so is a paradigmatic breach.
The Court considered the Respondent’s argument that the Claimant had an alternative remedy under rule 43 of the Upper Tribunal Rules to set aside the UT’s refusal of PTA. Although this alternative remedy might be available, the Court held that the existence of alternative remedies does not negate the existence of a fundamental breach for jurisdictional purposes. The question of whether the Claimant should have pursued that remedy goes to the exercise of discretion in granting permission, not to jurisdiction.
The Court also rejected the Respondent’s contention that the natural justice exception should not be engaged if the unconsidered ground had no real prospect of success. It clarified that the jurisdictional question of fundamental procedural unfairness is distinct from the merits of the Claimant’s substantive case, which properly falls to be considered at the permission stage.
On the test for permission to apply for judicial review, the Court held that the High Court should apply the established test of whether the claim is realistically arguable, rather than the stricter "Cart test" applied by the High Court judge, as section 11A superseded the Cart jurisdiction.
Regarding the substantive merits, the Court agreed with the High Court judge that even if the FTT had erred in characterising the relationship as a private life rather than family life, the outcome would have been the same. The proportionality assessment was properly conducted, balancing the Claimant’s and her uncle’s interests against the public interest in immigration control. The statutory provisions limiting weight to be given to private life established during unlawful residence were properly applied.
Accordingly, the Court held that the Claimant’s challenge to the FTT’s decision had no real prospect of success, justifying refusal of permission to apply for judicial review.
Holding and Implications
The Court granted permission to appeal but DISMISSED THE APPEAL.
The Court’s decision confirms that the High Court has jurisdiction to entertain judicial review challenges under the natural justice exception in section 11A(4)(c)(ii) where there is a realistically arguable case of fundamental procedural unfairness by the UT. It clarifies that the test for permission to apply for judicial review in such cases is the well-established "realistic arguability" standard, not the former Cart test.
However, the Court reaffirmed that even if jurisdiction exists, permission to apply for judicial review will be refused if the substantive claim has no real prospect of success. The decision upholds the FTT’s proportionality assessment in immigration removal cases involving Article 8 rights and confirms the proper application of statutory provisions limiting weight to private life established during unlawful residence.
No new precedent was set beyond these clarifications. The direct effect is that the Claimant’s removal decision stands, and the procedural error by the UT did not ultimately entitle her to relief.
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