Cart & Ors, R (on the application of) v The Upper Tribunal & Ors

Cart & Ors, R (on the application of) v The Upper Tribunal & Ors

The designation of SIAC and the Upper Tribunal as 'superior courts of record' does not exclude the High Court's supervisory jurisdiction by way of judicial review. SIAC remains subject to judicial review for excess of jurisdiction and errors of law. The Upper Tribunal, as an alter ego of the High Court, is not generally amenable to judicial review for errors of law within its jurisdiction, except in wholly exceptional cases. SIAC's bail decisions based solely on closed material, without sufficient disclosure to the detainee, violate Article 5(4) ECHR.

Parties
First Claimant: Rex Cart; Second Claimant: U; Third Claimant: XC; First Defendant: The Upper Tribunal; Second Defendant: Special Immigration Appeals Commission; First Interested Party: The Secretary of State for Justice; Second Interested Party: The Secretary of State for the Home Department; Third Interested Party: The Public Law Project; Intervener: Child Maintenance & Enforcement Commission; Intervener: Mrs Wendy Cart
Jurisdiction
England and Wales
Judgment Date
01 December 2009
Procedural Posture
Judicial Review / High Court Judgment
Outcome
Applications by U and XC succeed; Cart's application dismissed.
Legal Topics
Judicial Review, Superior Court of Record, Statutory Interpretation, Bail, Closed Material Procedure, Article 5(4) ECHR, Immigration Detention, Tribunal Structure
Constitutional Law Administrative Law Human Rights Judicial Review Superior Court of Record Statutory Interpretation Bail Closed Material Procedure +3 more

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Parties

Rex Cart

First Claimant

U

Second Claimant

XC

Third Claimant

The Upper Tribunal

First Defendant

Special Immigration Appeals Commission

Second Defendant

The Secretary of State for Justice

First Interested Party

The Secretary of State for the Home Department

Second Interested Party

The Public Law Project

Third Interested Party

Child Maintenance & Enforcement Commission

Intervener

Mrs Wendy Cart

Intervener

Procedural Posture

Judicial Review / High Court Judgment

Legal Issues

  1. 1 Whether the High Court's supervisory jurisdiction by way of judicial review extends to decisions of SIAC and the Upper Tribunal not amenable to appeal
  2. 2 Whether SIAC and the Upper Tribunal are immune from judicial review by virtue of being 'superior courts of record'
  3. 3 Whether SIAC's bail decisions based solely on closed material violate Article 5(4) ECHR

Ratio Decidendi

The designation of SIAC and the Upper Tribunal as 'superior courts of record' does not exclude the High Court's supervisory jurisdiction by way of judicial review. SIAC remains subject to judicial review for excess of jurisdiction and errors of law. The Upper Tribunal, as an alter ego of the High Court, is not generally amenable to judicial review for errors of law within its jurisdiction, except in wholly exceptional cases. SIAC's bail decisions based solely on closed material, without sufficient disclosure to the detainee, violate Article 5(4) ECHR.

Court Disposition

Applications by U and XC succeed; Cart's application dismissed.

Orders

  • Appropriate orders to be made following submissions from counsel.