R (on the application of Kashif) v Secretary of State for the Home Department (JR jurisdiction: applicant in Scotland)
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton,Dawson |
| Judgment Date | 09 June 2016 |
| Neutral Citation | [2016] UKUT 375 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 09 June 2016 |
[2016] UKUT 375 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
Mr C M G Ockelton, VICE PRESIDENT
UPPER TRIBUNAL JUDGE Dawson
Mr D. Balroop, instructed by Bond Adams LLP, appeared on behalf of the Applicant.
Mr Z. Malik, instructed by the Government Legal Department, appeared on behalf of the Respondent.
R (on the application of Kashif) v Secretary of State for the Home Department (JR jurisdiction: applicant in Scotland) IJR
The Upper Tribunal's jurisdiction to decide an application for Judicial Review is not affected by the applicant's being in Scotland. The Tribunal will, however, consider issues of forum non conveniens if it is suggested that its jurisdiction should not be exercised.
This in an application for judicial review. The decision under challenge is a decision by the Secretary of State on 9 July 2015. It is a decision refusing to reconsider an earlier decision refusing the applicant leave on human rights grounds.
The decision letter is in standard form but it is convenient to indicate that it begins with the address of the decision-maker, an address in Sheffield; it then goes on to say that the decision in question has previously been the subject of an application for judicial review and for that reason the decision-maker does not propose to take the matter further. We shall say in due course more about the context in which that was said.
The applicant himself is, and has been for a long time, in Scotland; he is there unlawfully; he has been there unlawfully for a long time. The present judicial review proceedings were issued in the Tribunal in England and Wales on 27 October 2015, out of time. Permission was refused on the papers and the application for permission was renewed orally before Judge Eshun who heard it and gave her decision on 16 April 2016. The decision is in terms that have caused some confusion to this Tribunal as well as, we understand, to the parties. The refusal of permission on the papers had alluded to the fact that there might be an issue of jurisdiction of this Tribunal in England and Wales in relation to a judicial review claim brought by an applicant in Scotland. That matter was the subject of submissions before Judge Eshun and she concluded that the matter required further discussion and she therefore, it appears, granted permission on that issue. She did not, we are told, hear any submissions at all in relation to the merits of the claim.
As we noted during the course of argument, her grant of permission might be taken to confirm her view that she had jurisdiction and that therefore the issue as to territorial jurisdiction was to be settled in the applicant's favour. We are persuaded by the submissions made by Mr Malik before us today that that matter does indeed remain open and would have to remain open in view of its preliminary nature. But there is a further difficulty in that it is said by those acting for the applicant that it is not clear whether or not Judge Eshun granted permission on the merits. They say that she did, having not confined her grant of permission. The Government's submission is that in context, no attention having been given to the merits of the case at all, the grant must be seen as a grant of permission related only to the question of jurisdiction. So far as that issue goes, we are content to accede to Mr Balroop's submissions and treat the grant as a grant of permission on all matters. It therefore follows that there is permission both in relation to whether the proceedings are properly brought in this Tribunal and further whether the applicant's substantive claim succeeds.
Judge Eshun added, following her decision, the following order:
“I make an order that no enforcement action is to be taken against the applicant while the case is in progress.”
It is convenient to bring the status of that order and its effect up to date because it has some possible bearing on jurisdiction. The applicant, as we have said, is unlawfully in the United Kingdom and has been residing unlawfully in Scotland. He is the subject of what we suppose must be Temporary Admission, under which he is required to report twice weekly in Scotland. He is, at the moment, as we give this judgment, in England and Wales; indeed he is in this Tribunal hearing room. We have been told that he took the view that following the order by Judge Eshun he had no need to continue to report and he is currently in breach of his reporting conditions. For what it is worth, we express our view that reporting conditions are not “enforcement action” and are not in any way affected by Judge Eshun's order. However, what is, or may be, of some relevance is that the applicant is a person who is in the United Kingdom and is not physically restrained from passing to and fro across the border between England and Scotland, as his arrival in London some time in the recent past demonstrates.
The question as to jurisdiction is whether a person who is in Scotland ought to be allowed to bring judicial review proceedings in England and Wales in relation to a decision nominally taken by the Secretary of State and in fact taken in England. This is a matter not free from authority; there have been a number of decisions of the higher courts relating to this very issue; some of the decisions relate to immigration matters. There is a series of decisions also in relation to tax matters to which we have not been taken in detail. The decisions to which we have specifically been taken are the decision of the House of Lords in R (Tehrani) v Secretary of State for the Home Department [2006] UKHL 26, Sokha v Secretary of State for the Home Department [1992] SLT 1049 a decision of a Lord Ordinary, and R (Majead) v Immigration Appeal Tribunal [2003] EWCA Civ 615 a decision of the Court of Appeal.
In each of these cases there was a question whether the Court on one side or the other of the Scottish/English border was an appropriate forum for the proceedings which had been brought. In Majead and also in Tehrani the question was whether the refusal of permission to appeal to the Immigration Appeal Tribunal was judicially reviewable in Scotland or England as the case may be. In Sokha, however, the decision under challenge was a decision which had never been the subject of an appeal; it was a decision relating to the detention of the Petitioner under immigration powers. The Petitioner was a person who had at all material times been in England and who was detained in England. He brought proceedings in Scotland, apparently thinking that he would have a better chance of success there. His only connection in Scotland was the proceedings. Lord Prosser decided that there was no good reason to allow him to bring the proceedings in Scotland; this was properly an English case. In making that decision he did not suggest that the Court of Session had no jurisdiction; but it was a case which was not appropriately brought in Scotland according to the rules of forum (non) conveniens. That was a case where, it is to be observed, the decision under challenge was a Ministerial decision, a decision of a Minister operating both in England and in Scotland. The difficulty for the applicant was that he had brought the proceedings in the part of the United Kingdom to which he had no connection at all, and which other than by their issue, the proceedings had no connection.
In Tehrani and Majead the matter was somewhat different. Under the provisions applying to statutory appeals, appeals were, so to speak, channelled to the north or south of the English/Scottish Border under certain provisions set out in statute and rules which also contained provisions as to the “appropriate appeal court” depending on where the determination of the adjudicator was made [requiring that further appeals to the Immigration Appeal Tribunal were to be brought on one side or the other of the border]. In each case the challenge was to a refusal by the Immigration Appeal Tribunal of permission to appeal to itself. That was a refusal which ex hypothesei was made in a case which had already been the subject of a statutory channelling to one side or the other of the border.
In Majead the decision was taken by the Court of Appeal in England, that the case being essentially a Scottish case, and hence a Scottish appeal, and hence a Scottish decision on the refusal of permission to appeal, albeit made in London by a Vice President of the Immigration Appeal Tribunal, was a decision which was properly subject to judicial review if at all, in the Court of Session, not in the High Court in England and Wales. In Tehrani the same position was taken mutatis mutandis but Tehrani gives us the advantage of a full review of the authorities as well as being of the highest authority.
It appears to us clear beyond a doubt that the High Court in England and Wales and so the Tribunal under the transfer provisions of ss. 15 and 19 of the Tribunals, Courts and Enforcement Act 2007 has jurisdiction judicially to review a decision of the Secretary of State for the Home Department wherever taken. The jurisdiction of the High Court in England and Wales does not depend on any fact as to the place in the United Kingdom in which a decision taken on behalf of the Secretary of State was made. The question therefore in all these cases must be, as explained in some detail in the speeches particularly of Lord Hope and Lord Rodger in Tehrani, an issue of forum (non) conveniens. That, as Lord Hope points out, is not an issue of practical convenience but as in the word we have already used, appropriate. As the Court points out in Tehrani, in particular as Lord Hope says at para 56:
“In my opinion,...
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Upper Tribunal (Immigration and asylum chamber), 2016-07-19, [2016] UKUT 375 (IAC) (R (on the application of Kashif) v Secretary of State for the Home Department (JR jurisdiction: applicant in Scotland) (IJR))
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