Outer House denies jurisdiction to hear appeal against Upper Tribunal permission refusal

The petitioner’s student visa was revoked in 2020 after various concerns regarding his compliance with immigration conditions came to light. A series of appeals led the petitioner’s case to the Outer House of the Court of Session.

The case was heard by Lady Haldane, with the petitioner appearing in person and Usman Tariq KC and Clara Smeaton for the respondent.

Permission refusals not susceptible to judicial review

In 2018, the petitioner was granted a four-year student visa to allow him to travel from Pakistan to the UK to pursue a degree in business management at the University of Glasgow. Having enrolled on the course, he began part-time work to finance his living costs. Two years later, however, the petitioner was detained by Home Office officials over concerns regarding his right to work. Additional concerns, comprising a discrepancy over the petitioner’s date of birth and his failure to disclose a previous instance of overstaying in the UK, proceeded likewise to emerge.

In response, the home secretary revoked the petitioner’s leave to remain in the UK. Although the petitioner withdrew from his studies accordingly, solicitors acting for the petitioner made representations to the secretary of state under section 120 of the Nationality, Immigration and Asylum Act 2002 explaining why he ought to be allowed to remain in the UK. The secretary of state’s refusal of that request was subsequently appealed to the First-tier Tribunal (FTT).

Giving its decision in 2024, the FTT agreed with the home secretary that there were no exceptional circumstances engaging Article 8 of the European Convention on Human Rights such as would justify permitting the petitioner to remain in the UK. The petitioner was subsequently refused permission to appeal to the Upper Tribunal (UT), which rejected the petitioner’s assertions that the FTT judge had made an arguable material error of law.

Now appealing to the Outer House of the Court of Session, the petitioner argued that the UT had acted in such a procedurally defective manner as to amount to a “fundamental breach of the principles of natural justice” in terms of section 11A(4)(c)(ii) of the Tribunals, Courts and Enforcement Act 2007. Section 11A, as added by the Judicial Review and Courts Act 2022 following the Independent Review of Administrative Law, renders decisions by the Upper Tribunal to refuse permission to appeal “final, and not liable to be questioned or set aside in any other court” subject to narrow exceptions, including that cited by the petitioner.

Failure to pass jurisdictional gateway

Lady Haldane began her decision by reasoning: “The will of Parliament in introducing section 11A into the 2007 Act could scarcely have been clearer. The question of the susceptibility to judicial review of decisions of the UT on applications to it for permission to appeal had been analysed both north and south of the border with broadly similar outcomes, albeit in England certain restrictions had been proposed by way of the ‘second appeals’ test espoused in R (Cart) [v Upper Tribunal (2011)]. Parliament determined to put the matter beyond peradventure by legislating … This, as Lord Sandison observed in Elkabany v Advocate General for Scotland (2025), could scarcely be viewed as a liberalising measure, creating, as it did, effective immunity from judicial review of the relevant decision apart from where the narrow statutory exceptions could be shown to arise.”

She continued: “I therefore accept the submission for the respondent that the language of section 11A created a jurisdictional gateway which must be passed before the exceptions set out in section 11A(4) can be considered. I accept and respectfully adopt the manner in which that question has been considered in the authorities to which I was referred. In particular, that the threshold question is whether the petitioner can show ‘a genuinely disputable question that the exception applied rather than merely asserting that the exception applied’ [citing R (LA Albania) v Upper Tribunal (2023)]. The explicit language of section 11A(3)(a) makes it clear that a genuinely disputable question cannot be evidenced by allegations that are, properly understood, errors of law. Therefore, the primary question is whether the petitioner has set out averments supporting the conclusion that a genuinely disputable question arises as to whether the decision of the UT demonstrates a procedural defect which gives rise to a fundamental breach of natural justice.”

Turning to the merits of the petitioner’s complaints, she observed: “As the authorities make clear, it is the decision-making process that is the narrow carve out to the section 11A prohibition, not the outcome. Taking each of the points made by the petitioner, both in his written and oral submissions, at their highest, none can fairly or objectively be categorised as a complaint about process. They are, individually and cumulatively, quintessential allegations of errors of law – failure to take matters into account, failure to give proper weight to certain factors, and so on. That conclusion permits of only one result, which is that the petitioner has failed to establish that this court has prima facie jurisdiction to consider the matter. To conclude otherwise would fail to pay proper respect to the will of Parliament in enacting section 11A, nor, more prosaically, would an alternative conclusion reflect the plain language of the legislation.”

Even assuming for the sake of argument that the petitioner had established jurisdiction, Lady Haldane concluded: “[T]here is a final aspect of the exception in section 11A(4)(c)(ii) to be addressed, which is that the UT must have acted in such a procedurally defective way ‘as amounts to a fundamental breach of the principles of natural justice’ … Whilst well understood concepts of fairness such as a fair hearing before an unbiased tribunal are clearly relevant, as has been observed, what fairness demands will inevitably be case and context specific. As importantly however, the will of Parliament in enacting section 11A must also be respected, thus necessitating that the breach be a fundamental one, properly understood as the sort of breach that emerges from a ‘failure in process which is so grave as to rob the process of any legitimacy’ [citing R (Oceana) v Upper Tribunal (2023)]. By that yardstick and once again taking the factors relied upon by the petitioner at their highest, I would not have considered that a fundamental breach of natural justice of that sort had been demonstrated.”

The petition was accordingly refused.