R (Majead) v Immigration Appeal Tribunal
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE,LADY JUSTICE HALE |
| Judgment Date | 01 April 2003 |
| Neutral Citation | [2003] EWCA Civ 615 |
| Docket Number | C1/2002/2122 |
| Date | 01 April 2003 |
| Court | Court of Appeal (Civil Division) |
[2003] EWCA Civ 615
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE ADMINISTRATIVE COURT
(MR JUSTICE JACKSON)
QUEEN'S BENCH DIVISION
Lord Justice Brooke
Lady Justice Hale
Mr Justice Wilson
C1/2002/2122
MISS M CARRS-FRISK QC AND MR D BAZINI (instructed by Immigration Advisory Service, London SE1 4YB) appeared Appellant
MISS J ANDERSON (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Interested Party
The Defendant did not attend and was unrepresented
(Approved by the Court)
Tuesday, 1 April 2003
This is an application by the claimant for permission to appeal against a decision of Jackson J in the Administrative Court on 8 October 2002 when he refused him permission to apply for judicial review on the grounds that the court had no jurisdiction to deal with the matter. The reason why he took this step was because the decision impugned in these proceedings was a decision of the Immigration Appeal Tribunal dated 22 March 2002, whereby the claimant was refused permission to appeal against the determination of an immigration adjudicator sitting in Glasgow. On 7 February 2002 that adjudicator had dismissed the claimant's appeal against the decision to issue a removal direction. He was refused asylum at the same time. In a very short judgment Jackson J said:
"There is a jurisdictional point which I raised at the very commencement of the hearing this morning, and that is this: if the underlying litigation arose in Scotland, does this court have jurisdiction to entertain the judicial review proceedings? Paragraph 23(3) of schedule 4 to the Immigration and Asylum Act 1999 provides for appeals from [the Tribunal concerning decisions of an Adjudicator sitting in Scotland to lie to the Court of Session. Although paragraph 23(3) does not expressly deal with judicial review, it would plainly be an absurdity for appeals from the Immigration Appeal Tribunal in such matters to go to Scotland, and for judicial review to go to the High Court in London.
Furthermore, I understand that in practice judicial review challenges to decisions of the IAT on appeals from Adjudicators in Scotland do go to the Court of Session in Scotland. I also understand that when the Immigration Appeal Tribunal hears appeals from Adjudicators sitting in Scotland, the IAT treats itself as sitting in Scotland, even though in practice this is normally achieved by means of a video link.
In the circumstances of this case this court has no jurisdiction to hear the claim for judicial review, and in those circumstances the proper order which I now make is to refuse permission to apply for judicial review."
The claimant is an Iraqi citizen of Kurdish origin. He arrived in this country in Dover in July 2000. He was interviewed in connection with his asylum claim in Leeds, and the Secretary of State's decision to refuse him asylum was made in England. He was, however, "dispersed" to Scotland with the result that his appeal was heard by an adjudicator in Scotland.
The Immigration Appeal Tribunal is a national appeal tribunal hearing appeals from adjudicators on both sides of the Scottish border. We have been told that the last time it physically sat in Scotland was on the occasion of a hearing in Glasgow in January 2002. It now conducts Scottish appeals by video link from its new premises in Breams Building, London EC4. As Jackson J observed, appeals from its rulings on appeals from decisions by adjudicators sitting in Scotland lie to the Court of Session, and not to this court.
Two questions arise for decision on this appeal: (i) does this court have jurisdiction to entertain an application for judicial review; and (ii) if it does possess jurisdiction, ought is it to exercise it in this case? We have been shown a judgment of MacPherson J in a tax matter which raised similar questions in R v Special Commissioner ex parte RW Forsyth Ltd [1986] STC 565. The taxpayer company was incorporated and registered in Scotland where it traded as a retailer. All the proceedings relating to its appeals against two assessments to corporation tax had been heard in Scotland, but his application for postponement of the tax assessed was heard, at the request of his advisors, by a Special Commissioner sitting in London, who postponed a small part of the tax assessed. An application was granted for leave to apply for judicial review of that decision.
The following year the Court of Session pronounced a decree in favour of the Revenue in an action by Lord Advocate for the recovery of the tax not postponed in spite of an argument that that court should heed the Order 53 proceedings. Its decision was founded on its conclusion, to which I will return, that this court had no jurisdiction in the matter.
Against this background McPherson J made an order staying the Order 53 proceedings. He said (at page 568H):
"It is argued that since the Special Commissioner stands in the shoes of the General Commissioners, by reason of the taxpayer's election, so he should be taken to be in effect purely a Scottish tribunal in any Scottish case. But the position, in my judgment, is that a Special Commissioner stands in his own shoes. His office or jurisdiction starts from Turnstile House and extends throughout the United Kingdom. Tax and its assessment is a United Kingdom business, in the sense that there is no exclusive Scottish tax system.
This court must guard its position so far
as review of the activities of Special Commissioners carried on in England is concerned. In the instant case the only connection with England was the postponement application, but it seems to me in the light of the arguments and the cases cited to me that I should beware of ruling that this court is wholly without jurisdiction lest that might lead to later problems.
The cases cited were Rutherford v Lord Advocate (1931) 16 TC 145, and R v Industrial Disputes Tribunal, ex p Kigass Ltd [1953] 1 WLR 411."
Having declined to rule there could be no jurisdiction in a case of this kind, he went on to say (at page 569F) that he was wholly convinced that the proceedings should be stayed. In reaching this conclusion he referred to common sense and convenience and the interests of comity.
I cannot help noticing that in the same case the Lord Ordinary (Lord Wylie) took a more robust view of the matter from a Scottish standpoint (see Lord Advocate v RW Forsyth Ltd 61 TC 1). He said (at page 5):
"It was submitted on the defenders' behalf that the High Court certainly had jurisdiction, and perhaps paramount jurisdiction, to consider and if necessary review the actings of the Special Commissioner. Even if both Courts had a concurrent jurisdiction it could not be said that the application was not properly before the High Court of Justice and these proceedings could not be disregarded. The issue raised was one related to the performance of an administrative function by a Special Commissioner sitting in London and questions of domestic law did not arise. I have already questioned whether the Special Commissioner was performing a purely administrative function, but even if it could be properly so described, the critical question is whether he was acting in the context of purely Scottish proceedings. If he was there could only be one court with the pre-eminent supervisory jurisdiction, that is the Court of Session. The supervisory jurisdiction of that court, as the supreme civil court in Scotland, over inferior courts and tribunals has long been recognised —see Brown v Hamilton District Council 1983 SLT 397 per Lord Fraser of Tullybelton page 414 —and a decision of a Commissioner for the Special Purposes of the Income Tax Acts on a Scottish tax case, albeit that he is sitting no doubt for administrative convenience in London, must in my view remain subject to the supervisory jurisdiction of the Scottish Court. It is not difficult to imagine the confusion which could in certain circumstances result if more than one court had such a jurisdiction."
In R v Secretary of State for Scotland and Another ex-parte Greenpeace (Crown Office transcript 24...
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