Thangarasa, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor, Court of Appeal - Administrative Court, November 08, 2013, [2013] EWHC 3415 (Admin)

Resolution Date:November 08, 2013
Issuing Organization:Administrative Court
Actores:Thangarasa, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor

Case No: CO/11021/2011

Neutral Citation Number: [2013] EWHC 3415 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 08/11/2013



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Alasdair Mackenzie (instructed by Birnberg Peirce & Partners) for the Claimant

Bilal Rawat (instructed by The Treasury Solicitor) for the Interested Party

Hearing dates: 29 October 2013

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JudgmentMr Justice Blair:

  1. This is a claim for judicial review of a decision of the Upper Tribunal. The decision in question is a refusal to grant the claimant permission to appeal against a decision of the First-tier Tribunal rejecting his appeal against the refusal of his claim for asylum by the Secretary of State for the Home Department (``SSHD''). The decision was made on 28 July 2011. The claim is brought with the permission of Stadlen J given on 9 May 2012. The parties then agreed to a stay pending the latest country guidance on Sri Lanka given by the Tribunal in GJ and others (post civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC), which explains why it has taken so long to come on for hearing.

  2. The background is that the claimant is a Sri Lankan ethnic Tamil born in 1973. Fingerprint records show that he arrived in the United Kingdom via Calais on 21 December 2008. He did not claim asylum, and was refused entry. He claims to have arrived in the United Kingdom on 8 September 2010. On 21 October 2010 he was encountered by immigration officers while working, and on 8 December 2010, he claimed asylum.

  3. The basis of his asylum claim was that, while not a member, he had assisted the LTTE between 1993 and 2006. He claims to have been arrested, detained and tortured on three occasions by the Sri Lankan authorities on suspicion of LTTE involvement. The three occasions were in 2008, 2009 and 2010. His case was that he feared persecution on return to Sri Lanka on the grounds of his imputed political opinion.

  4. Asylum was refused on 21 January 2011. His appeal was heard at the First-tier Tribunal on 10 March 2011, and by a decision dated 14 April 2011 his appeal was dismissed by Immigration Judge Omotosho.

  5. On 12 May 2011, Immigration Judge Peart refused permission to appeal. On 28 July 2011, in the two stage procedure adopted in the Upper Tribunal, permission to appeal was further refused by Senior Immigration Judge Warr. It is this latter decision that is the subject of this claim for judicial review. In short, the claimant's case is that it was unlawful for the Upper Tribunal to refuse permission because, it is said, permission was refused on the basis that, although there was an arguable error of law in the First-tier Tribunal's decision, any error was not material because the appeal would not have succeeded in any event. The Upper Tribunal thereby, it is submitted, applied the wrong test.

  6. These judicial review proceedings were filed on 14 November 2011. On 25 January 2012, James Goudie QC sitting as a deputy High Court Judge refused permission on the papers.

  7. The matter came before Stadlen J on 9 May 2012 on a renewed application for permission. He said: ``It seems to me arguable, and that is all that needs to be shown, that the second limb of the Cart test is satisfied, namely that there is some other compelling reason''.

  8. In doing so, he was directing himself in accordance with R (Cart) v Upper Tribunal [2012] 1 AC 663. It was held by the Supreme Court that a rational and proportionate restriction upon the availability of judicial review of the refusal by the Upper Tribunal of permission to appeal to itself was provided by the second-tier appeals criteria. This is to the effect that permission shall not be granted unless ``(a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason for the relevant appellate court to hear the appeal''. The procedure in respect of applications for judicial review of non-appealable decisions of the Upper Tribunal following Cart is now found in CPR rule 54.7A(7). However, this rule did not come into force until 1 October 2012 and is not applicable to the present case.

  9. Neither counsel addressed the Cart criteria in their written or oral arguments. This was because it was common ground between them that the Cart test applies only to the permission stage, and does not limit the approach of the court at the substantive hearing. This submission is derived from the decision in R (HS and others) v Upper Tribunal [2012] EWHC 3126 (Admin). This decision was handed down on 28 November 2012, and so after the permission hearing in the present case.

  10. In short, in HS v UT, Charles J held that the Cart criteria must be applied at the permission stage in a case such as the present. If permission is given, the criteria no longer have a role in the substantive decision. The authorities founding that conclusion are cited in his decision, and I need not repeat them, since I agree with it.

  11. I raised with counsel the fact that Stadlen J decided no more than it was arguable that the Cart criteria applied in this case. There has not actually been a decision that the criteria do apply. It was pointed out to me that the same position had obtained in HS v UT, where it was dealt with in a pragmatic way by treating the Cart...

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