CART-style JR succeeds after lengthy substantive hearing

11 February 2016

Today the Administrative Court handed down judgment in the case of G and H v Upper Tribunal and SSHD [2016] EWHC 239 (Admin), in which Garden Court North Chambers’ Lucy Mair appeared for claimant. This is the first reported case of a successful substantive claim for judicial review against a decision of the Upper Tribunal and also deals with issues of procedural fairness, country guidance and expert evidence where an accepted victim of trafficking appeals against a refusal of asylum to the First Tier Tribunal (FTT).

This is the first reported case of a successful substantive claim for judicial review against a decision of the Upper Tribunal (Immigration and Asylum Chamber) refusing permission to appeal from the FTT to the Upper Tribunal (termed “an Upper Tribunal permission refusal” [76] in the judgment). The case is noteworthy due to the detailed guidance given by the court regarding the test to be applied at the substantive judicial review stage and the role of the High Court in considering a substantive claim.

Mr Justice Walker found that the relevant test at the substantive stage is whether “an Upper Tribunal FTT permission refusal is vitiated because the Upper Tribunal misunderstood or misapplied the law when holding that the would-be appellant had identified no arguable ground of appeal.” [122]

On the facts of this particular case, Mr Justice Walker went so far as to find that  “relevant parts of the grounds of appeal were not merely arguable, but were bound to succeed in law.” [124]

The case is also noteworthy because it deals with issues of procedural fairness, country guidance and expert evidence where an accepted victim of trafficking appeals against a refusal of asylum to the FTT. Before the FTT the SSHD had conceded that G’s account of trafficking from Nigeria to the destination country was accepted and that the only matter for resolution before the FTT was her risk on return to Nigeria. Notwithstanding that concession, and without putting the parties on notice nor questioning G with regard to her trafficking, the FTT dismissed the appeal after comprehensively disbelieving G’s accepted account of trafficking. The FTT also failed to apply the preserved findings from the Nigerian trafficking country guidance and dismissed the expert evidence (mostly on the basis that the experts had accepted G’s account whereas the FTT had not).

Mr Justice Walker concludes on the procedural fairness point, “… it is relevant that judicial review ground one is essentially concerned with questions of procedural fairness and the impact of a breach of procedural fairness. Questions of procedural fairness are pre-eminently a matter within the expertise of this court. In earlier sections of this judgment I have set out my analysis of the extent to which the FTT’s breach of procedural fairness had an impact on the reasoning of the FTT in deciding upon the overall outcome. I have not identified any aspect of that analysis which might be affected by the particular expertise of the Upper Tribunal or the FTT. I therefore conclude that, after taking full account of the expertise of the Upper Tribunal and the FTT, it is in accordance with the overriding objective for me to base my decision upon my conclusion that ground one of appeal was right.” [183]

Mr Justice Walker also concluded that the country guidance and expert evidence grounds were correct.

In addition to immigration practitioners, anyone who does tribunal work may benefit from the new CART JR guidance contained in this judgment. As RightsNet.org.uk has already commented: “The case is noteworthy due to the detailed guidance given by the court regarding the test to be applied at the substantive JR stage and the role of the High Court in considering a substantive claim.”

Additional commentary is available at:

• High Court finds Claimants grounds of appeal are “plainly right” despite refusals of permission by both the FTT and the UT – Free Movement blog; and
• Immigration: a challenge to the Upper Tribunal – Law Society Gazette.

Lucy was instructed by Nadeem Ahmed of Howells Solicitors and Carita Thomas, formerly of Howells and now at ATLEU.