The UK Supreme Court has thrown out a “hopeless” application by an asylum seeker in a ruling that upholds the sovereignty of parliament. The applicant, a woman from Albania known only by the initials LA, was ordered to pay the government’s legal costs. Three justices, headed by the court’s president, made it clear that similar applications for permission to appeal should not come before the court in future.
LA, an Albanian citizen, entered the UK on the back of a lorry in November 2018. She promptly claimed asylum, saying she feared persecution in Albania because she was a lesbian Muslim.
In May 2019, the Home Office dismissed her claim as clearly unfounded.
She was granted permission to apply for judicial review and the Home Office agreed to reconsider. In March 2020 she was told she could appeal to the First-tier Tribunal.
She did not do so. In May 2021 she was detained and issued with removal directions. Her new solicitors obtained a medical report which concluded that she suffered from post-traumatic stress disorder and depression. She was allowed an extension of time to appeal to the First-tier Tribunal.
In October 2022, her appeal was dismissed by the tribunal. A judge accepted that she had been threatened by her former partner’s family but noted that she remained in Albania for a a significant period of time after her relationship had ended. “These facts do not demonstrate that the appellant was at risk of persecution or faced a real risk of serious harm in Albania,” the judge said.
The First-tier Tribunal refused LA permission to appeal in December 2022. The Upper Tribunal refused her permission to appeal in March 2023.
She then sought permission to apply for judicial review of the Upper Tribunal’s refusal of permission. This is where the case gets interesting.
Cart overturned
Nearly four years ago, the government announced details of a long-awaited independent review of administrative law.
Robert Buckland, the justice secretary, said the review of judicial review would “ensure this precious check on government power is maintained while making sure the process is not abused or used to conduct politics by another means”.
The review, chaired by Lord Faulks KC, published its report in March 2021. Its recommendations turned out to be more modest than some had expected.
Following a decision of the Supreme Court in R (Cart) v Upper Tribunal in 2011, it had been possible to seek judicial review of a decision by the Upper Tribunal to refuse permission to appeal against a decision of the First-tier Tribunal. Because it found that this extended process had led to relatively few errors of law by the First-tier Tribunal being identified and corrected, the Faulks panel recommended discontinuing the practice — in other words, overturning the Cart judgment by statute.
That recommendation was given effect by the Judicial Review and Courts Act 2022. This inserts a new section 11A into the Tribunals, Courts and Enforcement Act 2007 which says, in part:
(1) Subsections (2) and (3) apply in relation to a decision by the Upper Tribunal to refuse permission (or leave) to appeal further to an application under section 11(4)(b).
(2) The decision is final, and not liable to be questioned or set aside in any other court.
(3) In particular—
(a) the Upper Tribunal is not to be regarded as having exceeded its powers by reason of any error made in reaching the decision;
(b) the supervisory jurisdiction does not extend to, and no application or petition for judicial review may be made or brought in relation to, the decision.
(4) Subsections (2) and (3) do not apply so far as the decision involves or gives rise to any question as to whether—
(a) the Upper Tribunal has or had a valid application before it under section 11(4)(b),
(b) the Upper Tribunal is or was properly constituted for the purpose of dealing with the application, or
(c) the Upper Tribunal is acting or has acted—
(i) in bad faith, or
(ii) in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice…
(7) In this section—
“decision” includes any purported decision
The effect of that provision, brought into force in July 2022, was considered by Mr Justice Saini in a case called Oceana. In April last year, the judge rejected a submission that section 11A was an impermissible ouster of the inherent supervisory jurisdiction of the High Court.
He said:
In Cart, the Supreme Court expressly acknowledged the right of parliament to oust or exclude judicial review with the use of clear language…
Parliament did that in the present case by way of section 11A. The section does not amount to a full ouster but a partial one which restricts judicial review to the particular circumstances referred to in section 11A(4)…
In my judgment, the legal position under the law of England and Wales is clear and well-established. The starting point is that the courts must always be the authoritative interpreters of all legislation including ouster clauses…
However, the rule of law applies as much to the courts as it does to anyone else. That means that, under our constitutional system, effect must be given to parliament’s will expressed in legislation…
The most fundamental rule of our constitutional law is that the crown in parliament is sovereign and that legislation enacted by the crown with the consent of both houses of parliament is supreme. The common law supervisory jurisdiction of the High Court enjoys no immunity from these principles when clear legislative language is used and parliament has expressly confronted the issue of exclusion of judicial review, as was the case with section 11A.
Back to LA
We left LA seeking permission to challenge the Upper Tribunal’s refusal of permission to appeal. Her written application for permission came before Sir Duncan Ouseley, sitting as a judge of the High Court.
In June 2023, Ouseley refused to allow LA to bring judicial review proceedings on the ground that the High Court had no jurisdiction. He regarded it as hopeless to claim that section 11A of the 2007 act was not effective to restrict the scope of judicial review of Upper Tribunal decisions. None of the exceptions in subsection (4) applied.
Undaunted, LA sought permission to appeal to the Court of Appeal. An oral hearing was ordered so that the court could decide whether Oceana had been rightly decided.
Giving judgment last November, Lord Justice Dingemans concluded that “the wording of section 11A is effective to limit the grounds on which the High Court may exercise its supervisory jurisdiction over a decision by Upper Tribunal to refuse a party permission to appeal from a decision of the First-tier Tribunal”.
He said:
It is the duty of the courts to give effect to the clear words used by parliament, because no one, including a court, is above the law. The decision by Mr Justice Saini in Oceana was right.
There was no “genuinely disputable basis” for showing that LA’s claim fell within the exceptions in subsection (4), he added. Lords Justices Underhill and Lewis agreed.
Supreme Court
You might have thought LA and her advisers would have left it there. They did not. A short news item appeared on the Supreme Court website yesterday. This is a slightly edited version of what it said:
Permission to Appeal decision in the matter of R (on the application of LA (Albania)) (Appellant) v Upper Tribunal Immigration and Asylum Chamber and another (Respondents)
3 July 2024
In the Supreme Court of the United Kingdom
UKSC 2024/0053
Before
Lord Reed
Lord Sales
Lady RoseAfter consideration of the application filed on behalf of the appellant seeking permission to appeal the order made by the Court of Appeal on 16 November 2023 and of the notice of objection filed by the second respondent [the home secretary]
THE COURT ORDERED that
Permission to appeal be REFUSED because the court does not have jurisdiction for the below reasons.
The appellant pay the respondent’s costs in an amount to be determined in accordance with section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and regulations made under it.
Reasons
Section 11A of the Tribunals, Courts and Enforcement Act 2007 provides, so far as material, as follows… [see above]
In the present case, the Upper Tribunal refused the appellant permission to appeal against a decision of the First-tier Tribunal. The High Court refused an application for permission to apply for judicial review of the Upper Tribunal’s decision, on the basis that none of the exceptions in section 11A(4) applied, with the consequence that the court lacked jurisdiction. The Court of Appeal dismissed an application for permission to appeal against that decision, on the ground that it had no jurisdiction to entertain an appeal.
The appellant now seeks permission to appeal against the Court of Appeal's decision on five grounds. Grounds 1 to 3 raise the question whether section 11A is effective in ousting the supervisory jurisdiction of the High Court and, if so, whether it is constitutionally permissible. Grounds 4 and 5 assert that the exception set out in section 11A(4)(c)(ii) applies.
The panel has concluded that grounds 1 to 3 do not raise an arguable question. It is hopeless to contend that the terms of section 11A are ineffective in limiting the grounds on which the High Court may exercise its supervisory jurisdiction over a decision by the Upper Tribunal to refuse an application for permission to appeal from a decision of the First-tier Tribunal. The language of the provision could hardly be clearer. It is equally hopeless to contend that parliament lacks the power to enact such a restriction. Parliament’s power to restrict judicial review of decisions of the Upper Tribunal was accepted by this court in R (Cart) v Upper Tribunal. The dictum of Lord Carnwath in R (Privacy International) v Investigatory Powers Tribunal, paragraph 144, relied on by the appellant, concerned a total ouster of judicial review, which is not the effect of section 11A.
It follows that section 11A(2) applies unless one of the exceptions set out in subsection (4) is applicable. In relation to that question, the panel has concluded that grounds 4 and 5 do not raise an arguable question in the circumstances of the present case. None of the criticisms of the Upper Tribunal arguably constitutes acting “in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice”.
It follows that the court has no jurisdiction to entertain the proposed appeal, by virtue of section 11A of the 2007 act. Section 40(6) of the Constitutional Reform Act 2005 provides that the jurisdiction of the court is subject to any provision in another enactment which restricts appeals to the court from the Court of Appeal.
We note that, under rule 11(2) of the Supreme Court Rules 2009, the registrar may refuse to accept any application for permission to appeal on the ground that the court does not have jurisdiction under section 40 of the 2005 act to issue it. Under rule 9(4), the registrar may refer the matter to a single justice, or to a panel of justices, for determination. In our view, applications of the present kind should in future be dealt with in accordance with that procedure.
Comment
Five years ago, the Home Office decided that LA’s claim to asylum was manifestly unfounded. As far as we know, she is still here.
She has now exhausted all her grounds of challenge in the UK — though I would not be surprised if her solicitors lodged an application at the European Court of Human Rights. I would expect that court to follow the rulings of the Court of Appeal and the Supreme Court. Perhaps the incoming home secretary will wait for a decision from Strasbourg before deciding whether to send LA back to Albania.
In the meantime, she has contributed to the development of the law. We now have binding authority, at the very highest level, that parliament has the power to prevent challenges to decisions of the Upper Tribunal in cases such as this.
As the judges have said, no one, including a court, is above the law as made by parliament.
Yet, as a disabled litigant in person, I cannot get legal aid to uphold my employment rights. Fair.
Thank you for the easily comprehensible article,which I really enjoyed. No doubt some will not happy happy with the decision,but it does provide certainty. That has to be a good thing in the context.