THABO JONES MDLULI FOR JUDICIAL REVIEW OF A DECISION BY THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) TO REFUSE TO GRANT THE PETITIONER PERMISSI

Judicial Review of a decision by the Upper Tribunal (Immigration and Asylum Chamber) to refuse to grant the petitioner permission to appeal

[1] On 7 February, at a "substantive" first hearing of a petition for judicial review of a refusal by the Upper Tribunal (hereafter "UT") to grant permission to appeal from a decision of the First-tier Tribunal ("FTT"), I granted the prayer of the petition and reduced that decision.

[2] As counsel acknowledged, the hearing before me raised issues of principle and practice, and involved some further consideration of what has become known in Scotland (though probably not in England) as the Eba test: Eba v Advocate General [2012] SC (UKSC) 1 (" Eba "), and see R (Cart) v Upper Tribunal (Public Law Project and another intervening) [2012] 1 AC 663 (" Cart "). I therefore indicated that I would write on the matter.

[4] The application for leave to remain was refused by the Secretary of State. She also issued removal directions. The petitioner appealed. An immigration judge of the FTT dismissed his appeal in a decision running to some 50 paragraphs.

[5] In terms of section 11(1) of the Act, there is a "right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision". This is not an excluded decision. The right to appeal to the UT, however, "may be exercised only with permission" of the FTT or the UT: section 11(3). Clearly that confers on the FTT and the UT a discretion as to whether or not to grant permission.