Sadia Afroz Chowdhury, R (on the application of) v The Upper Tribunal (Immigration and Asylum Chamber) [2025] EWCA Civ 656

[2025] EWCA Civ 656Case No CA-2023-002023
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE DIVISION
MR JUSTICE GRIFFITHS
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/05/2025
Before
LORD JUSTICE UNDERHILL(Vice-President of the Court of Appeal (Civil Division))LORD JUSTICE PETER JACKSONLADY JUSTICE ELISABETH LAING
Between
SADIA AFROZ CHOWDHURY)AppellantTHE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)Respondent
Between
SECRETARY OF STATE FORInterested PartyTHE HOME DEPARTMENTInterested Party
Zane Malik KC and Michael West (instructed by Chancery Solicitors) for Appellant for The Respondent did not appearJennifer Thelen (instructed by the Treasury Solicitor) for Interested PartyHearing Hearing date: 6 March 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 20 th May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

INTRODUCTION

[1]Ms Sadia Chowdhury, to whom I will refer as “the Claimant”, is a national of Bangladesh. She came to the UK as a student on 15 February 2010. Her leave to remain on that basis expired on 31 December 2013. She made various attempts to obtain further leave to remain but they were unsuccessful, and she has remained in this country since that date as an overstayer.[2]On 2 March 2020 the Home Office refused an application by the Claimant for leave to remain on human rights grounds: so far as necessary, I will give details of the grounds in question later. She appealed against that refusal, but by a decision promulgated on 28 March 2022 FTTJ Kaler in the First-tier Tribunal (“the FTT”) dismissed the appeal. Permission to appeal (“PTA”) against that decision was refused both by the FTT itself and, on 16 November, by UTJ Grubb in the Upper Tribunal (“the UT”).[3]On 6 December 2022 the Claimant commenced proceedings in the High Court against the UT seeking judicial review of its refusal of PTA. By virtue of section 11A of the Tribunals, Courts and Enforcement Act 2007 the High Court only has jurisdiction to entertain such a claim in very limited circumstances, which I set out below.[4]Following a refusal of permission to apply for judicial review (“PTAJR”) by Freedman J on the papers on 9 August 2023, permission was again refused by Griffiths J at an oral hearing on 10 October. Freedman J refused permission on the basis both that the Claimant’s challenge was precluded by section 11A and that it was in any event unarguable on the merits (though in fact he put those points the other way round). Griffiths J was prepared to assume for the sake of argument that the Court had jurisdiction to entertain the claim but he refused permission on the merits.[5]On 16 October 2023 the Claimant filed an Appellant’s Notice in this Court seeking to appeal against Griffiths J’s order. On 28 May 2024 Snowden LJ directed that her application for permission to appeal be adjourned to an oral hearing, with the appeal to follow immediately if permission were granted (i.e. a so-called “rolled-up” hearing).[6]The application was listed before us on that basis. The Claimant was represented by Mr Zane Malik KC, leading Mr Michael West. The UT, as is usual in such cases, has taken no part in the proceedings, but the Secretary of State appeared as an Interested Party both in the High Court and before us and was represented by Ms Jennifer Thelen. Both Mr Malik and Ms Thelen also appeared before Griffiths J.

THE DECISION OF THE FTT

[7]There were various aspects to the Claimant’s initial appeal to the FTT, but for present purposes we are only concerned with her claim that her removal would breach the right to respect for family life under article 8 of the European Convention of Human Rights. That claim is based essentially on her relationship with her paternal uncle, Dr Mohammed Alam, a British citizen, with whom she lives and who she says is to a great extent dependent on her. As to that the Judge’s decision can be summarised as follows.[8]At para. 30 of her Reasons the Judge summarises the nature of the claim. I need not reproduce this, but I should note that she begins by saying that it was accepted by the Appellant’s then counsel, Mr Parminder Saini, “that the issue is proportionality”.[9]At paras. 31-33 the Judge records the evidence about the Appellant’s relationship with Dr Alam. I should set this out in full (subject to a few minor editorial omissions):
“31. … I accept that the Appellant lives with Dr Alam, that he has several medical problems, is unable to care for himself without assistance, and that the Appellant provides him with a great deal of care. He is 73 years old [and] relies on the Appellant for cooking, cleaning, washing clothes, doctors’ appointments and shopping. He is also emotionally and psychologically dependent on the Appellant, according to the assessment of psychiatrist Razia Hussain. Apart from the physical problems, he suffers from anxiety should the Appellant be required to leave the UK because he depends on her to give him his medication on time. On the basis of one meeting with him, it has been concluded that ‘his symptoms fulfil the criteria of mixed anxiety and depressive disorder.’ The conclusion is that ‘failure to treat his current symptoms on mixed anxiety with antidepressants and withdrawal of his niece’s support are likely to cause a deterioration in Dr Alam’s mental health. His detachment from his niece, who he is emotionally attached very strongly [sic], may lead to him to deteriorate mentally and physically.’ This report is dated 21/10/2021. 32. A telephone assessment was undertaken by social services and the occupational therapist on 30/09/2021. A detailed report … confirms that the Appellant gives insulin injections and supervises the taking of medication. She assists him with all aspects of personal care. Dr Alam does not require regular assistance with feeding. His mobility is severely restricted. The difficulties with him using the toilet on his own arise because the toilet has to be accessed by using the stairs, and he requires assisting in sitting and standing. He is forgetful at times. He has mental capacity to make his own decisions about his care needs and his view is that a package of care will be useful to support his niece. He presently has a carer who comes in for half an hour daily; the Appellant looks after him for the rest of the day. The Appellant is able to leave him alone for some hours during the day. She assists him with using the toilet at night. 33. Dr Alam is an accountant with his own firm and has employees who do the main work. He oversees the firm, and so is still active, and is economically independent. The Appellant accepts that he does not have any financial problems and could pay for additional care should this be necessary.”
[10]At para. 34 the Judge concludes that on those facts the Claimant had not established a family life within the meaning of article 8 but that she had established what she describes as “a strong private life that is worthy of respect”. I should set the paragraph out in full, together also with para. 35:
“34. I accept that the Appellant and her uncle have lived together for 8 years and he has come to be dependent on her. She is his main carer. They have formed a close bond. They have, I accept formed a very close private life. That they happen to be related is noted, but they are not immediate members of a family. I do not find that they have formed a family life together but I do accept that there are close ties between them. There is a strong private life that is worthy of respect. Dr Alam may prefer for his physical needs to be attended to by a family member. It seems he is content and happy for his niece to see to his personal needs, such as showering and toileting, rather than these needs being met by a male or female carer. His needs for physical and emotional support from the Appellant are the main reasons for arguing that it would be disproportionate for them to be separated. Another full time carer or combination of carers who have status in this country would be capable of providing care for his physical needs. 35. I accept that there is some emotional dependency on the Appellant. Dr Alam requires medication in the form of anti-depressants and may benefit from additional support for his mental health issues. He is prescribed anti-depressants and these will assist him. Razia Hussain says there may be a deterioration in his mental health if he is separated from the Appellant. That is a possibility, and I accept this may happen. I have to balance his needs when assessing proportionality.”
The Judge’s conclusion that the Claimant did not enjoy a family life with Dr Alam is at the heart of the challenge to her decision.[11]At para. 36 the Judge turns to her assessment of the public interest in the removal of the Claimant notwithstanding the right to respect for her private life. After referring to R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, she sets out in full section 117B of the Nationality, Immigration and Asylum Act 2002. For present purposes I need only reproduce subsections (4) and (5):
“(4) Little weight should be given to — (a) a private life, or (b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully. (5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.”
[12]At para. 37 she identifies various features of the Claimant’s case. Most relevantly for present purposes, she says:
“The relationship with her uncle as his carer has been established during a period when she had no right to be in the UK and her status has been precarious for many years.”
At para. 38 she quotes a passage from the judgment of Lord Wilson in Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58, [2018] 1 WLR 5536, addressing the effect of the phrase “little weight” in section 117B.

The Judge’s conclusion is at para. 39 of the Reasons, which reads as follows:

“I do not find that the care and emotional needs of Dr Alam outweigh the public interest in this case. Dr Alam is a British citizen and is entitled to a care package which would be increased should the Appellant not be present to care for him. He can also afford to pay for his care. He can access physical care. He is being prescribed anti-depressants. There is a possibility that his anxiety and mental state may deteriorate on separation from the Appellant. This attracts some weight but not overwhelmingly so. His mental health and emotional problems do not trump the weight to be given to the public interest in maintain[ing] a fair but effective immigration control. The Appellant has tried every which way to seek to cement her position in the UK. She has overstayed by many years. That the Appellant provides services to the community has been noted as is the support she provides to the uncle, but this is not sufficiently weighty to tip the balance in her favour. The Respondent owes a greater duty to the wider members of the citizens of the UK. The balance falls in favour of the Respondent.”

THE APPLICATION FOR PERMISSION TO APPEAL TO THE UT

[14]The Claimant lodged her appeal to the UT on 18 June 2022. At that point she was apparently acting in person, but the grounds of appeal which she lodged were settled by Mr Saini. They included a ground 2 which challenged the FTT’s decision on the article 8 claim. They are unhelpfully diffuse, but since they are not pursued before us it is enough to say that they criticised various aspects of the Judge’s reasoning and contended that her decision was perverse.[15]Those grounds were before Judge Grubb at the date of his decision on 16 November 2022. He addressed ground 2 (so far as relevant) as follows:
“As to (2), the judge accepted her relationship with, and support of, her uncle in the UK but other carers could be expected to provide the support for him. … The judge properly took into account the appellant’s immigration history and that she had been an overstayer for a number of years. The judge carried out the balance [sic] exercise and concluded the public interest outweighed any interference with her family and private life. These were findings properly and reasonably open to the judge on the evidence.”
[16]However, on 4 November 2022, just under a fortnight before Judge Grubb made his decision, the Claimant’s present solicitors, Chancery Solicitors, wrote to the UT enclosing what were described as “Supplementary Grounds of Appeal” pleaded by Mr Malik, which they said needed to be brought to the UT’s attention “immediately” and which they asked to be placed before “the precise Upper Tribunal Judge who is dealing with this appeal”. The Supplementary Grounds sought permission to amend the grounds of appeal to take a single additional point that the FTT’s conclusion that there was no protected family life between the Claimant and Dr Alam was wrong in law and inadequately reasoned: I will refer to that as the “family life ground”.[17]The solicitors’ letter asked the UT to acknowledge receipt and to confirm that the Supplementary Grounds had been placed before the Judge. On 9 November the Case Creation Team at the UT replied thanking the solicitors for their email and stating that “your application is still under consideration”. That falls short of the explicit confirmation requested, but it could reasonably have been understood as indicating that the letter would be considered by the Judge.[18]It is common ground that, notwithstanding that exchange, the Supplementary Grounds were not put before UTJ Grubb before he made his decision, and the family life ground was accordingly not considered by him. How that came about does not matter, but it is plain that there was an administrative error of some kind. THE JUDICIAL REVIEW PROCEEDINGS Jurisdiction: Section 11A

THE JUDICIAL REVIEW PROCEEDINGS

[19]Section 11A of the 2007 Act was inserted by section 2 of the Judicial Review and Courts Act 2022 and came into force on 14 July 2022. The background to its introduction is fully summarised at paras. 13-17 of the judgment of Dingemans LJ in R (LA (Albania)) v Secretary of State for the Home Department [2023] EWCA Civ 1337, [2024] 1 WLR 1673, and I need only give a very brief outline here.[20]The starting-point is that section 11 (2) of the 2007 Act, read with subsection (1), gives a party in the FTT a right of appeal to the UT on any point of law arising from a decision of the FTT (other than an “excluded decision”, but nothing turns on that here). By subsection (3), that right may be exercised only with permission. Subsection (4) provides that PTA may be given by either(a) the FTT or(b) the UT.[21]Sections 13 (1)-(2) of the 2007 Act give parties the right to appeal to the Court of Appeal against a decision of the UT, save in the case of an “excluded decision”. The list of excluded decisions in subsection (8) includes, at (c), “any decision of the Upper Tribunal on an application under section 11 (4) (b) (application for permission or leave to appeal)”.[22]Notwithstanding the unavailability of any appeal, it was held by the Supreme Court in Cart v Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663, that a decision of the UT to refuse PTA remained subject to the supervisory jurisdiction of the High Court by way of judicial review, albeit only on restricted grounds corresponding to the “second appeals test” applying to appeals to the Court of Appeal. That test (“the Cart test”) was subsequently incorporated in CPR 54.7A (7), which reads as follows:
“The court will give permission to proceed only if it considers — (a) that there is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First Tier Tribunal against which permission to appeal was sought are wrong in law; and (b) that either — (i) the claim raises an important point of principle or practice; or (ii) there is some other compelling reason to hear it.” (i) the claim raises an important point of principle or practice; or (ii) there is some other compelling reason to hear it.”
[23]The purpose of section 11A is to abolish the Cart jurisdiction and restrict the right of review as regards a refusal by the UT of PTA to a very limited class of cases. It is headed “Finality of decisions by Upper Tribunal about permission to appeal”. So far as material, it reads: “(1) Subsections (2) and (3) apply in relation to a decision by the Upper Tribunal to refuse permission (or leave) to appeal further to an application under section 11(4)(b). (2) The decision is final, and not liable to be questioned or set aside in any other court. (3) In particular —(a) the Upper Tribunal is not to be regarded as having exceeded its powers by reason of any error made in reaching the decision;(b) the supervisory jurisdiction does not extend to, and no application or petition for judicial review may be made or brought in relation to, the decision. (4) Subsections (2) and (3) do not apply so far as the decision involves or gives rise to any question as to whether — (a) the Upper Tribunal has or had a valid application before it under section 11(4)(b), (b) the Upper Tribunal is or was properly constituted for the purpose of dealing with the application, or(c) the Upper Tribunal is acting or has acted – (i) in bad faith, or (ii) in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice. (5)-(6) … (7) In this section — ‘decision’ includes any purported decision; …” (i) in bad faith, or (ii) in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice. ‘decision’ includes any purported decision;[24]At the risk of spelling out the obvious, the effect of subsections (2) and (3) is to exclude the jurisdiction of the High Court to review a refusal of PTA by the UT; but the effect of subsection (4) is that they do not apply in the circumstances specified as (a) to (c), to which I will refer as “the subsection (4) circumstances”. In the present case we are concerned with head (c) (ii), to which I will refer as “the natural justice exception” That is the most natural label, but it is not strictly accurate because the exception depends not onwhether the UT has in factacted in the way described but only on whether its decision involves or gives riseto a question whether it did so: seepara. 3 2below. : I will sometimes as a shorthand refer to the criterion under it as being whether the UT acted with “fundamental procedural unfairness”.[25]When section 11A first came into force CPR 54.7A was not immediately amended so as to reflect the changes made by it. However, that omission was remedied with effect from 6 April 2023, and the rule now reads:
“Where the Upper Tribunal has refused permission to appeal against a decision of the First-tier Tribunal, no application for judicial review of the Upper Tribunal’s decision, or which relates to the First-tier Tribunal’s decision, may be made except where the question in the judicial review application is— (a) whether the application for permission to appeal was validly made to the Upper Tribunal; (b) whether the Upper Tribunal when refusing permission to appeal was properly constituted; or (c) whether the Upper Tribunal is acting or has acted in bad faith or in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice.”
[26]It is convenient to note at this point that the test for the grant of PTAJR is not prescribed by statute or under the CPR, but that the established approach is that, subject to discretionary considerations, permission should be granted if the claimant’s ground of challenge is realistically arguable – see, for example, para. 14 (4) of the opinion of the Privy Council given by Lord Bingham in Sharma v Brown-Antoine[2006] UKPC 57, [2007] 1 WLR 780.

The Claim and the Defence

[27]The Statement of Facts and Grounds filed with the Claim Form, which was settled by Mr Malik, pleads that the decision of the FTT was wrong in law and that the UT should accordingly have given PTA: I need not set out the details at this stage. As regards the jurisdiction of the High Court to entertain the challenge, the Claimant avers that Judge Grubb’s omission to consider the Supplementary Grounds of Appeal constituted a procedural defect amounting to a fundamental breach of the principles of natural justice and thus fell within the terms of section 11A (4) (c) (ii).[28]Turner J directed that the Secretary of State file an Acknowledgment of Service. In the Summary Grounds filed with her Acknowledgment the Secretary of State denied that the administrative error of failing to put the Supplementary Grounds of Appeal before Judge Grubb amounted to a fundamental breach of the principles of natural justice. She also denied that there was any arguable error of law in the decision of the FTT.

The Refusal of Permission

[29]As already noted, PTAJR was refused both by Freedman J on the papers, and, on renewal, by Griffiths J. I need not summarise Freedman J’s reasons since his is not the decision under appeal.[30]Griffiths J observed at para. 24 of his judgment that the fact that Judge Grubb did not consider the Supplementary Grounds “might just conceivably be framed as depriving the claimant of her right to be heard and that it is at least potentially arguable that this could stretch so far as to be a fundamental breach of the principles of natural justice”, although he made clear that he was making no decision to that effect; and he accordingly proceeded to consider the application on the “assumption” that he had jurisdiction to do so.[31]Proceeding on that basis, Griffiths J says, at para. 26 of his judgment:
“I am not persuaded that there is an arguable case which has a reasonable prospect of success that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First-tier Tribunal against which permission to appeal was sought were wrong in law; and that either the claim raises an important point of principle or practice or that there is some other compelling reason to hear it.”
It will be seen that that language reflects the old CPR 54.7A (7) encapsulating the “Cart test”: see para. 22 above. He goes on to give his reasons at paras. 27-31 of his judgment. I need not give the details but his essential conclusion is at para. 30, which reads:
“I do not consider it to be arguable that the judge’s decision that the balance fell in favour of refusing the appeal against the rejection of the application to remain in the UK was wrong, given the findings of fact that she properly made, and the explanation she gave for striking the balance as she did. Even if the Article 8 rights had been considered on the basis of a family life, rather than a strong private life worthy of respect, the outcome would inevitably have been the same. The proposed appeal is not, therefore, arguable, on any basis.”

THE ISSUES ON THIS APPEAL

[32]The Claimant pleads two grounds of appeal, as follows:
“(1) The Administrative Court applied the wrong test in refusing permission to apply for Judicial Review. It is arguable that this claim falls within section 11A(4)(c)(ii) of the Tribunals, Courts and Enforcement Act 2007 and, therefore, the Administrative Court should have granted permission to apply for Judicial Review. (2) In any event, the Administrative Court erred in holding that the First-tier Tribunal’s decision contains no arguable error of law.”
The point being made in ground (1) is that Griffiths J had, as noted above, applied the Cart test whereas he should, on the assumption that the natural justice exception applied, have employed the straightforward test of whether the claim for judicial review was realistically arguable.[33]The Secretary of State has filed a Respondent’s Notice seeking to uphold Griffith J’s decision on two alternative grounds – first, that, contrary to the assumed basis on which he proceeded, the case did not fall within the terms of the natural justice exception; and second, that, even if, as alleged in the Claimant’s ground (1), he applied the wrong test, it is not arguable that the FTT made any error of law and accordingly permission should have been refused even on the lower test.[34]Against that background, the broad issues raised by the appeal can be summarised as follows:(a) (A) Does the claim fall within section 11A (4) (c) (ii) of the 2007 Act (that is, the natural justice exception), so that the High Court has jurisdiction to entertain the challenge? If so:(b) (B) What is the test for deciding whether to grant permission to apply for judicial review?(c) (C) Should permission have been granted? (A). DOES THE CLAIM FALL WITHIN SECTION 11A (4) (c) (ii)?[35]I start with three preliminary points about the effect of subsection (4).[36]The first is that the subsection only applies “so far as” the decision involves or gives rise to a question raising one of the specified circumstances. Thus, if an application for judicial review of a decision of the UT to refuse PTA alleges that the decision was vitiated both by one of the subsection (4) circumstances and by some other error of law, the High Court has jurisdiction to entertain only the former challenge. What that means in the context of the present case is that if the natural justice exception applies it does so only as regards the ground of appeal which was unfairly not considered – that is, the family life ground – and not the grounds of appeal which UTJ Grubb did consider and rejected.[37]The second is that the exception provided for by the subsection is expressed not as depending on whether any of the specified circumstances applies in fact but rather on whether the decision of the UT to refuse PTA “involves or gives rise to any question whether [they do so]”. As Dingemans LJ makes clear at paras. 37-38 of his judgment in LA (Albania), the question must be “genuinely disputable”. To put it another way, subsection (4) applies where there is a realistically arguable case that one of the specified circumstances obtains. That does not of course mean that the Court will not have to resolve the relevant subsection (4) question, only that it will not have to do so for the purpose of deciding whether it has jurisdiction. If it decides that it has, it will proceed to consider whether to grant PTAJR (as to which see para. 38 below); and if permission is granted the relevant question will have to be decided at the substantive hearing (unless the two stages have been rolled up).[38]Third, it will not always follow from a finding that the High Court has jurisdiction under subsection (4) that PTAJR will be granted. Although the “genuinely disputable question” and the “realistic arguability” criteria are substantially the same, it is well established that PTAJR may be refused on discretionary grounds even if there is a realistically arguable case that the defendant has acted unlawfully.[39]Thus on the facts of the present case the issue which determines whether the High Court had jurisdiction is whether there is a genuinely disputable question that by failing to consider the Supplementary Grounds of Appeal the UT acted in such a procedurally defective way as amounted to a fundamental breach of the principles of natural justice.[40]It is in my view clear that the omission by the UT to consider the Supplementary Grounds of Appeal constituted a procedural defect. There was some debate between us about whether the Claimant was entitled to rely on the Supplementary Grounds without having obtained permission to amend the grounds of appeal initially filed, under rule 5 (3) (c) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the 2008 Rules”). Mr Malik referred us to R (Spahiu) v Secretary of State for the Home Department [2018] EWCA Civ 2604, [2019] 1 WLR 1297, in which this Court held that an applicant for judicial review in the UT does not require permission to amend their statement of facts and grounds at any time prior to its being served on the respondent (see per Coulson LJ at paras. 27 and 35). Ms Thelen submitted that an application for PTAJR was not analogous to an application for PTA. She also pointed out that the Supplementary Grounds themselves asked for permission to amend. However, it is unnecessary to resolve the point since, even if permission to amend was required, the Claimant was entitled to apply for such permission at any stage before PTA was determined; and it was plainly a procedural defect that her application was not brought to the attention of the judge. I would add that Ms Thelen realistically acknowledged that if the Supplementary Grounds had been put before UTJ Grubb there was no basis on which he could reasonably have refused permission to amend and that he would have considered them on their merits.[41]The question then is whether it is realistically arguable that that defect amounted to a fundamental breach of the principles of natural justice. Mr Malik’s submission was that it plainly is. Natural justice requires that a court or tribunal consider any proper submissions which a party wishes to put before it, and that did not occur in the circumstances of the present case. I would add that in the broadly analogous context of this Court’s power to reopen a refusal of PTA under CPR 52.30, a case where the judge has “fail[ed] to read the right papers for the case” is treated as a paradigm of the kind of case where reopening is justified (see Barclays Bank plc v Guy (no. 2) [2010] EWCA Civ 1396, [2011] 1 WLR 681, per Lord Neuberger MR at para. 36, and R (Wingfield) v Canterbury City Council [2020] EWCA Civ 1588, [2021] 1 WLR 2863, per Sir Keith Lindblom SPT at para. 61 (3)).[42]Ms Thelen was prepared to accept that, if the facts had been that the PTA decision had been taken on the basis of only some of the original grounds of appeal – for example, if other grounds were on a separate sheet which had become accidentally detached from the papers – the natural justice exception would apply. But she contended that there was no breach, or in any event no fundamental breach, of natural justice in the particular circumstances of the present case. I consider her submissions as follows.[43]She started by emphasising the exceptional and limited nature of the supervisory jurisdiction preserved by section 11A (4). She referred to Dingemans LJ’s observation at para. 32 of his judgment in LA (Albania) that its effect is “to restore the ‘pre-Anisminic’ excess of jurisdiction and fundamental denial of justice tests which were adopted by the Divisional Court and the Court of Appeal in Cart”; and she took us to the passages in the judgment of Sedley LJ in Cart in this Court ([2010] EWCA Civ 859, [2012] 2 WLR 36) which make that point and to Lord Dyson’s summary of them at para. 108 of his judgment of in the Supreme Court. I need only refer to the latter: “Sedley LJ, delivering the judgment of the Court of Appeal, adopted at … para. 42 what he described as ‘the Sivasubramaniam model’ [Sivasubramaniam v Wandsworth County Court [2002] EWCA Civ 1738, [2003] 1 WLR 475] i.e. excess of jurisdiction in the pre-Anisminic sense or ‘procedural irregularity of such a kind as to constitute a denial of the applicant’s right to a fair hearing’ …”.[44]I understand why Ms Thelen wished to emphasise the limited nature of the section 11A jurisdiction, but I do not believe that that advances the argument as regards the specific issue before us. The fact is that the natural justice exception exists, and in so far as there is an issue about its scope the passages relied on from Cart do no more than express the same concept as section 11A (4) (c) (ii) in slightly different words.[45]Ms Thelen also referred us to Saini J’s judgment in R (Oceana) v Upper Tribunal [2023] EWHC 791 (Admin), in which one of the issues was the scope of the natural justice exception. Paras. 32-33 read as follows:
“32. I was referred to a large number of cases as to what natural justice or fairness requires. Subject to the need to be flexible and to avoid hard and fast rules, a high level summary of what fairness in process generally requires would include the following guarantees: the right to be heard by an unbiased tribunal; the right to have notice of the case to be met or proved; and the right to be heard on those matters. However, several cases of high authority underline that the principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision. An essential feature of the context is the statute which gives the relevant public body the power to make decisions, as regards both its language and the shape of the legal and administrative system within which the decision is taken. The requirements of fairness must be interpreted in a manner which does not frustrate the intention of Parliament. 33. Crucially, in the present context, Parliament has taken care to require a ‘fundamental breach’ of natural justice before the exception comes into play. That is an important qualification and needs to be given some meaning. Without seeking to be prescriptive, in my judgment that requires a claimant to identify a failure in process which is so grave as to rob the process of any legitimacy. That is a substantial hurdle. When considering whether this hurdle has been surmounted, a court will need to consider the entire process, as opposed to focussing on the discrete aspect which is the subject of the claim. The fairness of a process has to be assessed holistically.”
[46]I have no difficulty with the general propositions in para. 32 of Saini J’s judgment. I also agree with para. 33 to the extent that it emphasises that Parliament cannot have intended to give the High Court jurisdiction to review refusals of PTA on the basis of procedural defects which do not affect the fundamental fairness of the decision; and also that in principle it follows that it is necessary to look “holistically” at the entirety of the process (though whether that will make a difference in practice will depend on the nature of the defect). I am, however, a little uneasy about his gloss referring to a failure “which is so grave as to rob the process of any legitimacy”. It is in my view safer to stick to the statutory language, which is sufficient to make clear that the exception is only engaged by breaches which render the process fundamentally unfair.[47]Having made those introductory points, Ms Thelen submitted that there were three features of the present case which meant that the failure of the Judge to consider the Supplementary Grounds of Appeal did not amount to a fundamental breach of the principles of natural justice. I take them in turn. (1). The Lateness of the Supplementary Grounds[48]Ms Thelen submitted that any unfairness done to the Claimant could not fairly be described as “fundamental” in circumstances where what she had lost was not the opportunity to put her case at all but only an opportunity belatedly to amend that case as a result of second thoughts or further advice. That was all the more so since four months had already elapsed since she had filed her appeal, and she could have had no legitimate expectation that the PTA would not be determined before then: it was only a matter of chance that that had not occurred before the decision to seek to add an additional ground was taken.[49]This argument has given me some pause, but in the end I do not regard it as conclusive. The Claimant had the right to apply to amend her grounds at any time before PTA was determined; and, as Ms Thelen accepted, such an application, if otherwise unobjectionable, would not be refused on the basis that it could have been made earlier. She had in fact made the application before the PTA decision was taken, and the UT’s error did in fact deprive her of the right to advance a case that she wished to make. That being so, it seems to me properly arguable that the fact that there had been a long delay in making the application does not mean that the unfairness to her in it being overlooked was not fundamental. (2). Alternative Remedy[50]Ms Thelen’s next submission was that the Claimant had suffered no fundamental unfairness because rule 43 of the 2008 Rules gave her the right to apply to the UT itself to set aside UTJ Grubb’s decision because of his failure to consider the Supplementary Grounds. Paragraphs (1)-(2) of the rule read:
“(1) The Upper Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if — (a) the Upper Tribunal considers that it is in the interests of justice to do so; and (b) one or more of the conditions in paragraph (2) are satisfied. (2) The conditions are — (a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party’s representative; (b) a document relating to the proceedings was not sent to the Upper Tribunal at an appropriate time; (c) a party, or a party’s representative, was not present at a hearing related to the proceedings; or (d) there has been some other procedural irregularity in the proceedings.”
[51]It will be seen that all of the conditions under paragraph (2) are concerned with forms of “procedural irregularity”. Paragraphs (3)-(5) prescribe the time limit within which an application must be made: the relevant time limit in a case of the present kind is twelve days from the date that the UT sends the decision in question to the parties. Ms Thelen submitted that a decision by the UT to refuse PTA constitutes “a decision which disposes of proceedings” within the meaning of paragraph (1) of the rule. In that regard she relied on para. 15 of the judgment of Lewis LJ in Plescan v Secretary of State for Work and Pensions [2023] EWCA Civ 870, [2024] 1 WLR 530 (which was decided subsequent to the decision of the UT in this case). This reads:
“The Upper Tribunal may under rule 43 of the Rules set aside a decision which disposes of proceedings and re-make the decision. Although not defined in the Rules, the concept of ‘proceedings’ in rule 43 (1) includes an application for permission to appeal to the Upper Tribunal against a decision of the First-tier Tribunal. A decision refusing permission to appeal to the Upper Tribunal would, according to the ordinary meaning of the words used, determine those proceedings (i.e. the application for permission to appeal).”
[52]Ms Thelen submitted that it would have been open to the Claimant to apply to have the UT’s refusal of PTA set aside under rule 43, on the basis that its failure to consider the family life ground constituted a procedural irregularity within the terms of paragraph (2) (d) of rule 43. She thus had an alternative remedy for the breach of natural justice which had (on her case) occurred; and, that being so, looking at the entirety of the process, there had been no fundamental unfairness. Mr Malik’s answer was twofold.[53]First, he submitted that para. 15 of Lewis LJ’s judgment in Plescan did not constitute part of the ratio of the decision and was wrong. The claimant in that case had been refused PTA by the UT to appeal against a decision of the FTT concerning her entitlement to a personal independence payment. She applied under rule 43 to have the refusal set aside but the UT dismissed her application. She filed an appellant’s notice to this Court. Lewis LJ directed an oral hearing on the issue of whether the Court had jurisdiction to entertain such an appeal. The eventual decision of the Court (Baker, Lewis and Snowden LJJ) was that it did. Mr Malik points out that that was the only issue before the Court: it was not required to decide whether the UT had itself had jurisdiction. Although Lewis LJ had in para. 15 expressed a view on that point, he was not obliged to do so, and there is no indication that the Court had heard any argument on it: in fact, neither the claimant nor the respondent Secretary of State had appeared, although the Court had the assistance of an amicus. What Lewis LJ said was in fact wrong because it was inconsistent with the recognised position that the power of the UT to review its own decisions does not apply to decisions to grant or refuse PTA: see section 10 (1) of the 2007 Act. Mr Malik drew our attention to para. 28 of the judgment of Lady Hale in Cart, where she makes that point explicitly. The Court in Plescan did not appear to have been referred either to section 10 or to Cart. He submitted that if Lewis LJ were right the result would be substantially to undermine the evident intention of the 2007 Act that a refusal of PTA by the UT would be altogether to block any route of challenge by way of appeal (even if not by way of judicial review): a would-be appellant who had been refused PTA could apply under rule 43 and, if unsuccessful, could then file an appeal to this Court.[54]It seems to me debatable whether what Lewis LJ says in para. 15 of his judgment in Plescan was in truth obiter. But, be that as it may, I am not persuaded that it was wrong. I do not believe that there is any inconsistency between what he says and the fact that the UT’s power of review under section 10 does not extend to PTA decisions. The power under rule 43 to set aside a decision in the specified circumstances derives not from section 10 of the 2007 Act but from paragraph 15 (2) of Schedule 5 to the Act (which itself derives from section 22, which is the section which underpins the 2008 Rules). That paragraph authorises the making of a rule subject to the exact conditions which appear in rule 43 (2). Section 10 (1), by contrast, provides (so far as relevant) that the UT “may review a decision made by it on a matter in a case, other than [an excluded decision]”, and although subsection (2) makes provision for rules governing the exercise of that power it is in very general terms. As I understand it, rules 45 and 46 of the 2008 Rules are the only rules made under this power, but we were not addressed on this aspect. In short, we are dealing with different powers. Mr Malik is right that the existence of an appealable power to set aside a refusal of PTA may involve a backdoor route, at least in some cases, by which such a refusal can be the subject, albeit indirectly, of an appeal. But Lewis LJ addressed what is in substance the same, or at least a closely analogous, point at paras. 27-28 of his judgment in Plescan, where he explained why it is not necessarily anomalous to have different regimes for procedural irregularities on the part of the UT and for substantive errors by the FTT.[55]Second, Mr Malik submitted that, even if Plescan establishes that the rule 43 route had been open to the Claimant, that was not the general understanding at the date of the UT’s decision and it was not reasonable to expect her to take advantage of it. There are in my view difficulties with this argument: I am not sure that what Lady Hale said in Cart justified a different construction of rule 43 than was subsequently established in Plescan. But I would prefer not to reach a concluded decision on this point given that it was not considered by the Judge and is not decisive; and, as will appear, I need not do so.[56]In the end, however, even if the Claimant had no good reason for not pursuing her alternative remedy under rule 43, I do not believe that it follows that the natural justice exception is not engaged. The focus of the statutory language is exclusively on the question of whether a (fundamental) procedural unfairness has occurred. That question does not seem to me naturally to encompass the question of whether, if there has been such a breach, there were procedures by which it could have been remedied. Granted that it is appropriate to take a holistic view of the entirety of the process, I nevertheless think that the better view is that the relevant “process” comes to the end at the point at which a (prima facie final) judicial decision has been taken – here, the decision to refuse PTA. Of course, if the Court concludes that it has jurisdiction, the question whether the Claimant could and should have pursued an application for an alternative remedy under rule 43 can be considered in the usual way as part of the exercise of the discretion whether to grant PTAJR (or indeed, if permission is granted, whether to grant relief). (3). The Substance of the Supplementary Grounds[57]Ms Thelen submitted that the natural justice exception would not be engaged if the family life ground sought to be raised by the Supplementary Grounds had no real prospect of success. In my view that submission is ill-founded. As I have said in the context of the previous point, the focus of section 11A (4) (c) (ii) is on procedural fairness, and I do not think it can be read as involving an assessment of the substantive merits of the decision. Again, I emphasise that this conclusion is concerned only with the question of jurisdiction. If the Court concludes that the natural justice exception applies, it will then have to consider whether to grant PTAJR. If it is satisfied that the claim which the UT unfairly failed to consider could not have succeeded in any event it will be entitled to refuse permission on that basis as a matter of discretion (relying if necessary on section 31 (2A) of the Senior Courts Act 1981 – though as to this see para. 62 below).[58]For completeness, I should mention that Ms Thelen initially contended that the family life ground was not in substance different from those pleaded in the original grounds; but in the end she did not pursue the argument. It is in my view clear that it was indeed a different point.

Conclusion on Issue (A)

[59]In my opinion there is a genuinely disputable question whether by omitting to consider the Supplementary Grounds of Appeal the UT had acted in such a procedurally defective way as to amount to a fundamental breach of the principles of natural justice. Accordingly, I believe that Griffiths J was right to proceed to determine the Claimant’s application for PTAJR. Strictly, I believe that he should have done so on the basis of a positive finding that he had jurisdiction rather than simply on the basis of an assumption, but the approach which he took is understandable in the context of an ex tempore judgment.[60]I am conscious that the approach which I have taken in paras. 56 and 57 above – that is, of treating the issues of alternative remedy and the substantive merits of the claim as going to the question of whether PTAJR should be granted rather than to jurisdiction – may seem over-nice, given that they will in practice be considered on the same occasion and as part of a single exercise. But I believe that the distinction is worth making in the interests of clear analysis and because it is important to be aware of the difference between deciding the limits of the Court’s jurisdiction and making a decision in the exercise of that jurisdiction. It does not seem to me appropriate that discretionary issues of the kind in question should be relevant in determining the extent of the Court’s jurisdiction.

(B) THE TEST FOR PERMISSION TO APPLY FOR JUDICIAL REVIEW

[61]As noted at para. 31 above, in stating the test applicable to the grant of PTAJR Griffiths J used the formulation in the old CPR 54.7A (7). It was common ground before us, and I agree, that he was wrong to do so. By the date of his decision that rule had been replaced, and it is in my view clear that section 11A of the 2007 Act is intended wholly to supersede the regime established by Cart. In a case falling within the terms of subsection (4) the Court should apply the well-established principles governing the grant of PTAJR as summarised at para. 26 above. However, this error – again, venial in an ex tempore judgment – made no difference to his dispositive reasoning. (C). SHOULD PERMISSION HAVE BEEN GRANTED IN THIS CASE?[62]It follows from my conclusion on Issue (A) that I believe that it was realistically arguable that the UT acted with fundamental procedural unfairness. However, that is not conclusive of whether PTAJR should have been given. Mr Malik accepted that if the family life ground had no real prospect of success Griffiths J was right to refuse permission. That is plainly correct. It would (at least absent special circumstances) be pointless for the High Court to determine whether a tribunal had been wrong to fail to consider an issue which could have made no difference to its substantive decision. Although we did not hear submissions on the precise legal analysis, I am inclined to think that this is simply a consequence of the fact that judicial review is in principle a discretionary remedy. But the point is put beyond doubt by section 31 (2A) of the 1981 Act, since if PTA would have been refused in any event “the outcome for the [Claimant] would not have been substantially different if the conduct complained of had not occurred”.[63]I am satisfied that Griffiths J was right to hold that the family life ground did indeed have no real prospect of success. I confess that, on the basis of the Judge’s own findings of primary fact, I was rather surprised by her conclusion that the Claimant enjoyed no family life with Dr Alam, and I would at least like to have seen it more fully explained. I am prepared to proceed on the basis, though without deciding, that that was at least arguably an error of law. But, as we have seen, the basis of Griffiths J’s conclusion was that that any such error made no difference in practice since “[e]ven if the Article 8 rights had been considered on the basis of a family life, rather than a strong private life worthy of respect, the outcome would inevitably have been the same”. I agree. The Judge’s finding of “a strong private life worthy of respect” was virtually entirely based on the Claimant’s relationship with Dr Alam. At para. 39 of her Reasons she weighed the impact of the disruption of that relationship on both the Claimant and Dr Alam against the public interest in her removal, which is precisely the proportionality exercise that was required if the relationship had been explicitly characterised as familial. An error into which the Judge could have fallen as a result of referring only to “private life” was to focus only on the impact on the Claimant, to the exclusion of Dr Alam, contrary to the approach required by Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39, [2009] AC 115; but it is clear that she avoided that error.[64]Mr Malik’s primary response was that if the Judge had correctly identified that the Claimant enjoyed a family life with Dr Alam she should not, at least in that regard, have relied as she did on the “little weight” provisions of section 117B (4) and (5) of the 2002 Act (see paras.11-13 above), since they are concerned only with private life and with family life with a partner. I do not accept that that gives rise to any error of law. In the first place, those provisions were not irrelevant, since on any view the Claimant had a private life in this country as well as her family life with Dr Alam. But in any event it is clear that the fact that a familial relationship has developed while a person’s immigration status is precarious – and all the more so when they are in the UK unlawfully – is relevant to the proportionality of their removal as a matter of general law, irrespective of section 117B. At para. 28 of his judgment Griffiths J referred to para. 49 of the judgment of Carr LJ in Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886, which reads:
“A central consideration when assessing the proportionality of the removal of non-settled migrants from a contracting state in which they have family life is whether the family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be ‘precarious’. In such cases, it is likely only to be in exceptional circumstances the removal of the non-national family member will constitute a violation of Article 8 (see [R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11, [2017] 1 WLR 823] at [49], approving [Jeunesse v The Netherlands [2014] ECHR 1036] (at [108])).”
Mr Malik said that that passage did not use the language of “little weight”; but it is in my view to substantially the same effect as section 117B (4) and (5), at least in the context of a relationship with an adult relative. It would indeed be remarkable if the approach were to be different as between family life with a partner (the subject of section 117B (4) (b)) and family life with an uncle.[65]Mr Malik also emphasised the importance of the principle of “anxious scrutiny” in the case of claims under article 8. But it is clear that the Judge carried out a thorough exercise in which she carefully identified the adverse impact that the Claimant’s removal would have on Dr Alam. Mr Malik did not contend that her conclusion that the balance nevertheless came down in favour of removal was perverse. (He did make such a submission about the conclusion that there was no family life between the Claimant and Dr Alam; but for the reason which I have given any error in that regard did not affect her dispositive reasoning.)[66]Since I would thus uphold Griffiths J’s refusal of PTAJR for essentially the reason that he gave, it is unnecessary that I consider whether it could have been dismissed also on the basis that the Claimant could have applied to have the UT’s refusal of PTA set aside under rule 43, and I prefer not to do so.

CONCLUSION

[67]As noted above, this was a rolled-up hearing. It might be thought that my conclusion on Issue (C) means that I need not have considered the other issues in the detail that I have, and that this is a case in which PTA should simply be refused. But I have considered those issues because they raise points of more general importance; and, that being so, I believe that the right course is to grant PTA but dismiss the appeal.[68]I agree.[69]I also agree.