- Bookmark
- Share
- CaseIQ
Abdul Munim for Judicial Review (Court of Session)
Factual and Procedural Background
The Petitioner applied for and received a visa to study a four-year business-management degree at The University. The visa permitted residence until 30 September 2022. [1][2]
In April 2020, Home Office officials detained and questioned the Petitioner about suspected breaches of his work conditions and earlier immigration applications. The Secretary of State subsequently curtailed his visa and revoked his leave to remain, alleging dishonesty and breach of visa conditions. The Petitioner was required to withdraw from his studies. [3][4][5]
After further submissions were rejected, the Petitioner appealed to the First-tier Tribunal (FTT), principally relying on Article 8 ECHR. The FTT dismissed the appeal and refused permission to appeal. The Upper Tribunal (UT) refused renewed permission to appeal on 22 May 2024. [6][7][8][9][10]
The Petitioner sought judicial review of the UT decision. Permission to proceed was initially refused as the petition was considered incompetent, but the Inner House granted permission on the basis of the Petitioner’s revised arguments. The matter then proceeded to a substantive hearing before Judge Haldane. [11][12]
Legal Issues Presented
- Whether the petition was competent under section 11A of the Tribunals, Courts and Enforcement Act 2007. [13][14]
- Whether the UT had acted in a procedurally defective way amounting to a fundamental breach of natural justice under section 11A(4)(c)(ii). [13][15]
- Whether the UT failed to exercise its jurisdiction lawfully by refusing further time for legal assistance or an oral hearing. [16][17]
- Whether the FTT had improperly approached the Petitioner’s Article 8 claim and failed to address relevant concessions and circumstances. [17][18][19]
- What remedy, if any, was available, including reduction, further corrective orders, or reference to the Nobile Officium. [20][21]
Arguments of the Parties
Petitioner's Arguments
- The UT wrongly stated that the FTT had considered all relevant points, although the FTT had not addressed requests for further time, an oral hearing, or the Secretary of State’s concessions. [22][23]
- The FTT and UT had failed to address the “putting things right” principle and evidence concerning the Petitioner’s elderly parents in the relevant foreign state. [23][18]
- The failures were said to be procedural defects, individually and cumulatively amounting to a breach of natural justice rather than merely disagreement with the outcome. [18][19]
- The Petitioner argued that the court should grant relief beyond reduction because the circumstances were urgent and unusual, potentially including use of the Nobile Officium. [20]
Respondent's Arguments
- The petition was incompetent because section 11A deprived the court of jurisdiction, and there was no genuinely disputable question engaging the statutory exception. [24]
- The complaints concerned the merits, errors of law, or the weight given to evidence, rather than defects in the UT’s procedure. [25][26]
- The statutory scheme required a jurisdictional gateway to be satisfied before considering whether the exception actually applied. [25][27]
- Reduction was the only potentially competent remedy; restorative justice, remit to the FTT, and the Nobile Officium were said to be unavailable or inappropriate. [28][29][30]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Eba v Advocate General for Scotland [2010] CSIH 78; [2011] CSIH 78; [2011] UKSC 29 | Background to restrictions on judicial review of UT decisions. | The statutory scheme was enacted against the approach developed in Eba. [31][32] |
| R (Cart) v Upper Tribunal [2011] UKSC 28 | The “second appeals” approach to review of UT decisions. | Section 11A replaced the previous approach with a statutory finality regime and narrow exceptions. [31][32] |
| R (LA(Albania)) v Upper Tribunal (CA) [2023] EWCA Civ 1337 | A party must show a genuinely disputable question concerning a statutory exception; mere assertion is insufficient. | The court adopted this as the jurisdictional gateway test. [33][34][35] |
| Frater v The Queen (Note) [1981] 1 WLR 1468 | Meaning of a genuinely disputable issue. | Referred to in explaining the analogous gateway requirement. [34] |
| Alleyne-Forte v Attorney General of Trinidad and Tobago [1998] 1 WLR 68 | Requirement for a genuinely disputable constitutional issue. | Used by analogy in defining the threshold for invoking section 11A(4). [34] |
| R (Chowdhury) v Upper Tribunal (Immigration and Asylum Chamber) [2025] EWCA Civ 656; [2025] 1 WLR 5507 | The exception applies where there is a realistically arguable case that a specified circumstance exists; procedural fairness is distinct from merits. | The court applied the two-stage gateway and substantive assessment. [36][37][38][39] |
| R (Oceana) v Upper Tribunal (Immigration and Asylum Chamber) [2023] EWHC 791 (Admin) | Fairness is context-specific, and a fundamental breach requires a process failure so grave that it deprives the process of legitimacy. | The court held that the alleged defects did not meet this high threshold. [40][41][42][43][44] |
| O'Reilly v Mackman | Characterisation of an error as rendering a decision a nullity. | Mentioned in the discussion of the effect of errors not falling within section 11A(4). [45] |
| SU v McGinley 2022 SC 218 | The Nobile Officium is a remedy of last resort where no other remedy is available. | The court rejected reliance on that remedy in the circumstances. [28] |
| Ahsan v Secretary of State for the Home Department [2017] EWCA 2009 | Restorative justice where no adequate alternative remedy exists. | The court considered the authority inapplicable because a statutory appeal mechanism had been used. [29][30] |
| Elkabany v Advocate General for Scotland 2025 SLT 871 | Section 11A creates effective immunity from judicial review subject to narrow exceptions. | The court relied on this characterisation of the statutory scheme. [46] |
| Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61; 2013 SC (UKSC) 153 | Statutory words should generally receive their ordinary meaning. | The court relied on the plain language of section 11A. [47] |
Court's Reasoning and Analysis
Section 11A makes a UT refusal of permission to appeal final and generally immune from appeal or judicial review, subject only to narrow statutory exceptions. [48][49][14]
The court held that an applicant must first pass a jurisdictional gateway by demonstrating a genuinely disputable or realistically arguable question that an exception applies. An allegation that an exception applies is insufficient. [34][38][35]
The relevant exception concerns process, not the substantive merits or outcome of the decision. Fairness is context-specific, but a “fundamental breach” requires a process failure so grave that it robs the process of legitimacy. [39][41][42][43]
The Petitioner’s complaints about failure to consider concessions, evidence, additional time, an oral hearing, and family circumstances were, even taken at their highest, complaints about matters allegedly overlooked or given insufficient weight. The court categorised them as errors of law or merits-based criticisms, not procedural defects in the UT’s decision-making process. [50][47]
Because no genuinely disputable question establishing jurisdiction had been shown, the court did not need to proceed further. Alternatively, it concluded that no procedural defect or fundamental breach of natural justice had been established. [47][51][44]
On the hypothetical question of remedy, the court stated that reduction would have been the only relevant remedy. Restorative justice and the Nobile Officium were not appropriate because the statutory scheme contained no procedural or remedial lacuna. [21]
Holding and Implications
The petition was refused as incompetent for want of jurisdiction under section 11A of the Tribunals, Courts and Enforcement Act 2007. [52]
In the alternative, the petition would have been dismissed because the alleged complaints did not constitute a procedural defect or a fundamental breach of natural justice. The direct effect was that the UT’s refusal of permission to appeal remained undisturbed. No new precedent was set. [51][44][52]
Alert