(1) Where the decision of the Upper Tribunal to refuse permission to appeal against the decision of the First-tier Tribunal is quashed by the High Court, following the grant of permission in a ‘Cart’ judicial review under CPR 54.7A, the Upper Tribunal’s ability to grant permission to appeal without a hearing depends upon the Upper Tribunal being able to understand, from the High Court’s grant of permission in the judicial review, what led the Court to conclude that the requirements of CPR 54.7A(7) were satisfied.
(2) If the Upper Tribunal lists an application for permission to appeal for an oral hearing, following the quashing of a refusal to grant such permission, the appellant will need to ensure that the Upper Tribunal and the respondent have all the relevant materials in connection with the ‘Cart’ judicial review, which may bear on the issue of whether permission to appeal should now be granted.
(3) This will be particularly important where the case for the appellant has materially changed from what it was when the Upper Tribunal received the application for permission to appeal. In such a scenario, the Upper Tribunal will be unable to discern the potential point at issue merely by revisiting the original grounds of application for permission to appeal.
(4) The requirement in CPR 54.7A, that there must be shown to be something arguably legally wrong with the way in which the Upper Tribunal reached its decision in response to the grounds of application that were before it, is important. If it is not observed, there is a serious risk of a ‘Cart’ judicial review being seen as a third opportunity for an appellant to perfect grounds of challenge to the First-tier Tribunal’s decision, when Parliament has ordained that there should be no more than two.
Citations:
[2019] UKUT 353 (IAC)
Links:
Jurisdiction:
England and Wales
Immigration
Updated: 01 February 2022; Ref: scu.644461