Petition of Mohamed Elkabany for Judicial Review (Court of Session)

Factual and Procedural Background

The Petitioner, a 28-year-old citizen of the Arab Republic of Egypt, claimed asylum in the United Kingdom after fleeing alleged persecution related to a political demonstration in his home village. He was arrested, detained, and allegedly mistreated in Egypt before escaping to the UK, where he applied for asylum. The Home Office refused his claim, and he appealed to the First-tier Tribunal (F-tT), which dismissed his appeal after finding issues with the credibility of his evidence, including doubts about the authenticity of documents and inconsistencies in his testimony. The Petitioner sought permission to appeal the F-tT decision to the Upper Tribunal but was refused permission both by the F-tT and later by the Upper Tribunal, which also refused to extend the time for the late application. The Petitioner then petitioned the Court of Session for judicial review of the Upper Tribunal's refusal to admit his late application for permission to appeal.

Legal Issues Presented

1. Whether the Petitioner could competently challenge the Upper Tribunal's decision refusing to admit a late application for permission to appeal under section 11A(4)(a) of the Tribunals, Courts and Enforcement Act 2007.
2. Whether the Upper Tribunal erred in law in its assessment of the interests of justice in refusing to extend time to admit the late application.
3. The scope and limits of judicial review over Upper Tribunal decisions refusing permission to appeal, particularly in light of the finality provisions in section 11A of the 2007 Act.

Arguments of the Parties

Petitioner's Arguments

• The petition had a real prospect of success and thus permission to proceed should be granted.
• The petition fell within the exception in section 11A(4)(a) allowing review where the Upper Tribunal had no valid application before it.
• The Upper Tribunal materially erred in law by failing to properly assess all material factors, including the absence of prejudice to the Secretary of State and the responsibility for the delay lying with the petitioner's solicitors.
• The Upper Tribunal failed to recognise that the First-tier Tribunal had arguably erred in law, which should have influenced the interests of justice assessment.
• The "second appeal" test in section 27B(3) of the Court of Session Act 1988 did not apply to this judicial review petition.

Respondent's Arguments

• The Upper Tribunal's refusal to admit the late application was a straightforward administrative decision.
• The First-tier Tribunal's decision was legally sound and unassailable.
• The delay of over five months was serious and unexplained, with no good reason shown for extending time.
• The application to the Upper Tribunal was valid but was refused admission solely due to lateness, in accordance with the Rules and statutory provisions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
MIAB v Secretary of State for the Home Department [2016] CSIH 64	Permission should be granted if there is any real prospect of success.	Referenced by Petitioner to support the test for permission to proceed.
McEntegart v Fishman [2012] CSIH 72	Interpretation of statutory language according to ordinary meaning.	Supported the argument on statutory interpretation of section 11A and Rules.
Bhavsar v Secretary of State for the Home Department [2019] UKUT 196 (IAC)	Procedural aspects when permission to appeal has not been sought timeously.	Distinguished by the court as not applicable to the present case.
R (on the application of Onowu) v First-tier Tribunal (Immigration and Asylum Chamber) [2016] UKUT 185 (IAC)	Assessment of extensions of time requests and interests of justice.	Applied as the correct test for extension of time requests by the Upper Tribunal.
Singh v Secretary of State for the Home Department [2025] CSIH 4	Clarification of the limits of judicial review and the "second appeal" test.	Used to reject the petitioner's initial argument on Treaty of Union breach and to clarify statutory interpretation.
Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759	Material factors must be taken into account in judicial decisions.	Referenced by Petitioner to argue the Upper Tribunal failed to consider all material factors.
Tikka v Secretary of State for the Home Department [2018] Imm AR 1084	Deference to Upper Tribunal decisions unless fundamentally flawed in law.	Invoked by Petitioner to argue the Upper Tribunal's refusal was legally flawed.
PR (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 988	Compelling reasons for allowing appeals to proceed.	Referenced to support the argument for a compelling reason to allow the application.
Denton v TH White Ltd [2014] EWCA Civ 906	Three-stage test for granting extensions of time.	Applied by the Upper Tribunal Judge in refusing to extend time for the petitioner's late application.
Eba v Advocate General for Scotland [2010] CSIH 78	Judicial review availability for Upper Tribunal decisions pre-2022.	Discussed as prior law before the introduction of section 11A of the 2007 Act.
R (Cart) v Upper Tribunal [2011] UKSC 28	Restrained approach to judicial review of Upper Tribunal decisions.	Explained the policy rationale for limiting judicial review post-2012.
KM (Bangladesh) v Secretary of State for the Home Department [2017] EWCA Civ 437	Enforcement of time limits and prevention of delay in immigration appeals.	Supported the importance of enforcing procedural time limits.
Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537	Procedural compliance and consequences of failure to comply with rules.	Referenced in relation to the approach to extension of time requests.
R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1663	Procedural fairness and time extension considerations.	Considered alongside other authorities on extension of time.
Secretary of State for the Home Department v SS (Congo) & Others [2015] EWCA Civ 387	Summation of principles on extension of time and procedural compliance.	Used to support the three-stage test applied by the Upper Tribunal.

Court's Reasoning and Analysis

The court analyzed the statutory framework governing appeals from the First-tier Tribunal to the Upper Tribunal, particularly focusing on section 11A of the Tribunals, Courts and Enforcement Act 2007, which renders decisions of the Upper Tribunal refusing permission to appeal generally final and immune from judicial review, except in narrowly defined circumstances. The court emphasized that the Upper Tribunal’s refusal to admit a late application for permission to appeal engages this finality, as the Tribunal had no valid application to consider once time was not extended.

The court explained that an out-of-time application for permission to appeal is not invalid per se but requires the Upper Tribunal’s discretion to extend time. If that discretion is refused, the application remains valid but is not admitted for substantive consideration. This distinction is critical because it means there is no decision subject to judicial review unless the narrow exceptions in section 11A(4) apply.

The court found that the Upper Tribunal properly applied the three-stage test from Denton and related authorities to assess the seriousness of the delay, the reasons for it, and the interests of justice. The delay was significant and unexplained, with no satisfactory evidence of difficulties in filing. The merits of the proposed appeal were not strong enough to outweigh the public interest in enforcing procedural time limits.

The court rejected the Petitioner’s argument that the supervisory jurisdiction should extend to reviewing the Upper Tribunal’s refusal to extend time, noting the legislative intent to restrict review and the absence of any fundamental procedural irregularity or bad faith. The court also considered relevant case law on the limits of judicial review in this context and confirmed that the petition was incompetent under the statutory scheme.

Holding and Implications

The court held that the petition for judicial review was INCOMPETENT under section 11A of the Tribunals, Courts and Enforcement Act 2007, and accordingly refused permission for the petition to proceed.

The direct effect of this decision is to uphold the Upper Tribunal's refusal to admit the late application for permission to appeal, thereby bringing the appeal process to an end and exposing the Petitioner to removal proceedings. The decision affirms the strict statutory limits on judicial review of Upper Tribunal decisions refusing permission to appeal, reinforcing the finality and procedural enforcement intended by Parliament. No new legal precedent was established beyond applying the existing statutory framework and case law to the facts.