Benjamin Hawkin and Alex Chakmakjian Represent Interested Party in Unusual Judicial Review Hearing

R (SSHD) v Upper Tribunal (Haddon-Cave J, CO/448/2015) 18 November 2015

Benjamin Hawkin and Alex Chakmakjian represented the Interested Party in this Cart-type judicial review hearing.

The Interested Party had previously had his deportation appeal before the First-tier Tribunal (Immigration and Asylum Chamber) allowed by a panel comprising the President of the First-tier Tribunal and an Upper Tribunal Judge.

The Secretary of State applied for permission to appeal to the Upper Tribunal, but this was refused by the First-tier Tribunal and then by the Upper Tribunal. The Secretary of State next applied for judicial review of the Upper Tribunal’s refusal of permission to appeal under CPR 54.7A, the provision which gives effect to R (Cart) v Upper Tribunal [2011] UKSC 28, in which it was held that permission for judicial review of such a decision should only be granted if (i) the claim raises "an important point of principle or practice" or (ii) there is "some other compelling reason to hear it".

Cobb J granted permission for judicial review on paper.  Under CPR 54.7A(9)(b) such a grant will normally result in a final order quashing the Upper Tribunal’s refusal of permission. However, in this case the Interested Party exercised his right under CPR 54.7A(9)(a) to request an oral hearing.

After hearing oral argument from Leading Counsel on behalf of the Secretary of State and Benjamin Hawkin on behalf of the Interested Party, Haddon-Cave J accepted the Interested Party’s submission that at a hearing under CPR 54.7A(9)(a) it remains for the Claimant (in this case the Secretary of State) to satisfy the Court that their grounds indeed meet the Cart test, rather than for the Interested Party to demonstrate that the grant on paper was wrong.

However, he went on to find the test satisfied because the Secretary of State’s grounds, relating to Council Framework Decision 2008/909/JHA, Regulation 21(5)(c) of the Immigration (European Economic Area) Regulations 2006 and Article 3 of the ECHR, showed an arguable case with reasonable prospects of success that the decision of the Upper Tribunal and the decision of the First-tier Tribunal being challenged were wrong in law, and that there was an important point of principle or practice or compelling reason to hear the case.

Haddon-Cave J therefore allowed the claim, quashed the Upper Tribunal’s decision, and under section 31(5)(b) of the Senior Courts Act 1981 granted permission to appeal to the Upper Tribunal.