Judicial Review: Jurisdiction of UT Judge on Immigratn Rules

[Kelkay]

I would like to know whether an Upper Tribunal Judge sitting as a Judge in the Upper Tribunal has jurisdiction to hear Judicial Review challenge directed at the Immigration Rules and the Guidance to the Immigration Rules. These are Condition 4(a) and Condition 4(c) Judicial Review questioning as shown in the quotation below.

http://www.legislation.gov.uk/ukpga/1981/54/section/31A

Transfer of judicial review applications to Upper Tribunal

(1) This section applies where an application is made to the High Court—
(a) for judicial review, or
(b) for permission to apply for judicial review.

(2) If Conditions 1, 2, 3 and 4 are met, the High Court must by order transfer the application to the Upper Tribunal.

(3) If Conditions 1, 2 and 4 are met, but Condition 3 is not, the High Court may by order transfer the application to the Upper Tribunal if it appears to the High Court to be just and convenient to do so.

(4) Condition 1 is that the application does not seek anything other than—
(a) relief under section 31(1)(a) and (b);
(b) permission to apply for relief under section 31(1)(a) and (b);
(c) an award under section 31(4);
(d) interest;
(e) costs.

(5) Condition 2 is that the application does not call into question anything done by the Crown Court.

(6) Condition 3 is that the application falls within a class specified under section 18(6) of the Tribunals, Courts and Enforcement Act 2007.

(7) Condition 4 is that the application does not call into question any decision made under—
(a) the Immigration Acts,
(b) the British Nationality Act 1981 (c. 61),
(c) any instrument having effect under an enactment within paragraph (a) or (b), or
(d) any other provision of law for the time being in force which determines British citizenship, British overseas territories citizenship, the status of a British National (Overseas) or British Overseas citizenship.

[secret.simon]

Could you elaborate on what precisely do you wish to challenge?

Are you challenging the Immigration Rule itself as being ultra vires either the legislation or the ECHR or
are you challenging the applicability of a specific Immigration Rule to your case or
are you challenging the interpretation of the Immigration Rule in your case?

[Obie]

Well i don't think a challenge can be made, unless upon transfer, the High Court explicitly stated that the matter has to be dealt with by a senior Upper Tribunal or Upper Tribunal Judge.

Even in the main Judicial review, a person will need to ask the court to specifically order that an High court judge rather than a deputy high court judge adjudicate over a matter.

There is nothing in the law that prevent a Deputy Upper Tribunal judge, so long as the High Court correctly exercised its discretion to remit the matter.

If the discretion was exercised inappropriately, it will be open to you to appeal to the Court of Appeal to have the order set aside, or if in Scotland, you may be able to seek to reclaim the Interlocutor at the Inner Court. Otherwise very little can be done afterwards.

[Kelkay]

@secret.simon - Question asked is questioning Condition 4(a) and Condition 4(c) within paragraph 7 of the quoted provisions.

@Obie - Thanks for the information that an Upper Tribunal judge can determine judicial review directed at Condition 4(a) and Condition 4(c) stated above. Are you able to assist with the case law where the High Court explicitly stated such matter can be dealt by an Upper Tribunal Judge?

What if the claim started at the Upper Tribunal without it never been transferred to the High Court would the decision of the Upper Tribunal Judge be void or voidable given the jurisdictional issue?

What if instead of the Upper Tribunal Judge that decided the case but a substantive High Court Judge sitting as a Judge of the Upper Tribunal decided the case in the Upper Tribunal would the jurisdictional issue still be there?

[Obie]

The Power Under 31A(3) can only be Exercised by the High Court in England and Wales, Outer Court of Session in the Scotland, or the High Court of Northern Ireland.

The Upper Tribunal cannot accommodate Judicial Review on its own motion, where 31A(3) is engaged.

[Kelkay]

The Power Under 31A(3) can only be Exercised by the High Court in England and Wales, Outer Court of Session in the Scotland, or the High Court of Northern Ireland.

The Upper Tribunal cannot accommodate Judicial Review on its own motion, where 31A(3) is engaged.

So what should be the case if such a situation took place at the Upper Tribunal which lawyers (solicitors and barristers) representing the Appellant and the Respondent were not aware of the this provision of the law? Should an application be made to declare any decision created from it void and question on the Immigration Rules be transferred to the High Court for rehearing?

Can you provide me the case law you had in mind in your first post where you stated that the High Court explicitly stated that the matter can be dealt with by a senior Upper Tribunal or Upper Tribunal Judge, please?

[Obie]

I can't provide you with that case as it is a permission to Judicial review application, which does not have binding effect. Furthermore it will be troubling for me to upload clients grant of permission on forum. It will amount to flagrant breach of confidentiality.

[Kelkay]

I can't provide you with that case as it is a permission to Judicial review application, which does not have binding effect. Furthermore it will be troubling for me to upload clients grant of permission on forum. It will amount to flagrant breach of confidentiality.

Thank you for this clarification as per the case law you had in mind was made at the permission stage.

What is your opinion about the other issues as to matter determined at the Upper Tribunal without the lawyers (solicitors and barristers) having knowledge about the jurisdictional issue so that the matter should have been transferred to the High Court? Would such a decision be void (so that an application could be made under the slip rule to revoke it) or voidable (which means only a Higher Court could change the decision)?

[Obie]

Well it was the duty of your rep to be aware of jurisdictional issue before taking a matter to the Tribunal.

I not sure I am able to express an hypothetical view on this mater without full knowledge of the facts.

[Kelkay]

Thanks for sharing your knowledge. Lawyers are human beings and they are not infallible. No matter are good a lawyer may be s/he still need to be assisted in one way or the other. The problem is that the client is always at the receiving end for whatever mistake hence the need for any client to do enough research before taking any legal issue to a lawyer.

[Obie]

You are the model client. I am sure your lawyer will appreciate your understanding.