The Upper Tribunal had refused the applicant permission to appeal, and the High Court had, in judicial review proceedings, quashed that refusal. The application for permission thus awaited lawful determination by the Upper Tribunal, and a hearing was arranged in order to determine it and, if appropriate, any resulting appeal. The Tribunal considered the substantive grounds and decided to grant permission. It then commenced the hearing of the appeal and discovered what had not previously been made clear either to the Tribunal or to the judge who dealt with the judicial review, that the application which the Tribunal had originally refused was substantially out of time. It thereupon purported to rescind its decision granting leave, substituted a decision refusing leave, and declined to consider the substantive appeal.
Held: The Court was faced with the difficulty that the Tribunal had clearly made two decisions. If the Tribunal had no jurisdiction to set aside its decision granting permission, the second decision, refusing permission, nevertheless had to be dealt with as it stood unless quashed by an appropriate Superior Court. Section 10 of the 2007 Act permits review of a decision, but not if the decision is an excluded decision. There had in the present case been a decision; but, being a decision on an application for permission to appeal, it was an excluded decision. The Tribunal accordingly had no power to review its decision under s. 10 and accordingly no power to set aside the grant of permission.
Lewison LJ, Sir Richard Aikens
[2015] EWCA Civ 1175, [2016] CP Rep 9, [2016] Imm AR 444
Bailii
England and Wales
Cited by:
Cited – Jan (Upper Tribunal: Set-Aside Powers : Pakistan) UTIAC 7-Jul-2016
UTIAC The decision of the Court of Appeal in Patel [2015] EWCA Civ 1175 entails the view that the Upper Tribunal’s powers to set aside its own decisions are limited to those in rules 43 and 45-6 of the Upper . .
Lists of cited by and citing cases may be incomplete.
Immigration
Updated: 06 January 2022; Ref: scu.554781