Tehrani v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | LORD CARSWELL,LORD HOPE OF CRAIGHEAD,LORD RODGER OF EARLSFERRY,LORD SCOTT OF FOSCOTE,LORD NICHOLLS OF BIRKENHEAD |
| Judgment Date | 18 October 2006 |
| Neutral Citation | [2006] UKHL 47 |
| Court | House of Lords |
| Date | 18 October 2006 |
[2006] UKHL 47
Appellate Committee
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Carswell
HOUSE OF LORDS
Appellants:
Mungo Bovey QC
Simon Collins
(Instructed by Quinn Martin and Langan)
Respondents:
Lord Davidson of Glen Clova QC
Ailsa Carmichael
(Instructed by Office of the Solicitor to the Advocate General for Scotland)
My Lords,
Legislation operating throughout the United Kingdom sometimes makes provision for appeals to appellate tribunals which, like the legislation itself, operate throughout the whole of the United Kingdom. Similarly with legislation operating throughout Great Britain. Employment, taxation and immigration are instances. In these fields the primary remedy available to a citizen aggrieved by a departmental decision is to appeal against the decision in accordance with the appeal structure set out in the legislation. In the ordinary course that is the route an aggrieved party should follow.
Occasionally a citizen wishes to challenge a decision of a tribunal in respect of which he has no right of appeal. He wishes to apply for judicial review of the tribunal's decision. But to which court should he make his application? If the taxation affairs of a Scottish taxpayer are dealt with by a commissioner sitting in England, should the taxpayer apply to the Court of Session in Edinburgh or the High Court of Justice in London?
Take a more complicated example. Take a case where a claimant for asylum is living in Scotland. An adjudicator in Glasgow dismisses his appeal against the Secretary of State's refusal of asylum. The Immigration Appeal Tribunal sitting in London then refuses the claimant permission to appeal. Clearly an application for judicial review of these two decisions should be heard by one court, either by the Court of Session in Scotland or the High Court in England. It would make no sense if the Court of Session were to review the decision of the adjudicator and the High Court were to review the decision of the Immigration Appeal Tribunal. But which court should this be, and on what principle should the choice be made? These are the questions arising on this appeal.
The present case: the factual background
The appellant, Mr Behrouz Tehrani, is a citizen of Iran. On 24 March 2001 he flew into London City airport and claimed asylum. He was given temporary admission pending a decision on his application and provided with temporary hotel accommodation in London. He stayed there for a month until the Secretary of State required him to move to Glasgow under the statutory dispersal scheme. On 19 April 2001 Mr Tehrani was allocated accommodation in a local authority flat in Glasgow. Since then he has lived continuously in Glasgow.
On 11 May 2001 the Immigration and Nationality Directorate of the Home Office at Croydon refused Mr Tehrani's application. The directorate sent Mr Tehrani a letter setting out the reasons why the Secretary of State was not satisfied Mr Tehrani had established a well-founded fear of persecution. On 16 May an immigration officer of the UK Immigration Service at London City airport gave Mr Tehrani formal notice refusing him leave to enter the United Kingdom. Mr Tehrani was told that directions would be given for his removal on a scheduled flight to Iran upon a date and time to be arranged.
Two days later, on 18 May 2001, notice of appeal was given on behalf of Mr Tehrani by his representative, Mr Latif Zamani. At the time Mr Tehrani was unable to speak or read English. The hearing of the appeal by an adjudicator took place some months later, on 5 February 2002, in Durham. Mr Tehrani travelled from Glasgow for the hearing. He was represented by a Mr Sharif who lived in Sheffield. The Durham venue was arranged, it seems, for Mr Sharif's convenience. Mr Sharif had asked for the hearing to be transferred from London to the hearing centre at Leeds. Durham is a satellite of the Leeds' hearing centre. Mr Tehrani was not consulted about these arrangements.
On 21 February 2002 the adjudicator dismissed Mr Tehrani's appeal. Mr Tehrani sought leave from the Immigration Appeal Tribunal (the 'IAT') to appeal against the adjudicator's determination. On 22 March 2002 the tribunal, sitting in London, refused leave to appeal. This refusal decision was not susceptible of appeal.
In August 2002 Mr Tehrani lodged a petition with the Court of Session seeking reduction of the adjudicator's determination and the IAT's refusal of leave to appeal. On 3 April 2003 the Lord Ordinary (Philip) sustained the Secretary of State's plea to the jurisdiction of the court: 2003 SLT 808. On 27 April 2004 an Extra Division of the Inner House, comprising Lords Kirkwood, Hamilton and Macfadyen, refused a reclaiming motion by Mr Tehrani: 2004 SLT 461. Mr Tehrani has now appealed to your Lordships' House. Whether there is substance in Mr Tehrani's petition is not a matter which has been canvassed before your Lordships or in either of the courts below. The issue is solely one of the jurisdiction of the Court of Session to entertain the petition.
The legislation
The relevant statutory provisions in force at the material times can be noted shortly. The impugned decisions of the adjudicator and the IAT were made under the Immigration and Asylum Act 1999 ('the 1999 Act'). Section 69 makes provision for appeals to an adjudicator against refusals of leave to enter where removal in consequence of the refusal is said to be contrary to the Refugee Convention. A person who is dissatisfied with an adjudicator's determination may appeal to the IAT with the leave of that tribunal: paragraph 22 of Schedule 4 to the 1999 Act, and rule 18(1) of the Immigration and Asylum Appeals (Procedure) Rules 2000 (SI 2000/2333).
The legislation makes provision for further appeals to the 'appropriate appeal court' on a question of law. The identity of the appropriate appeal court depends upon where the determination of the adjudicator was made. If the adjudicator's determination was made in Scotland the appropriate appeal court is the Court of Session. Otherwise the appropriate appeal court is the Court of Appeal: paragraph 23 of Schedule 4 to the 1999 Act.
The 1999 Act also makes provision for the existence of the IAT and for the appointment of adjudicators: sections 56 and 57. The IAT and adjudicators sit at such times and in such places as the Lord Chancellor directs. In practice there are a dozen or so main hearing centres throughout the United Kingdom. One of these is Glasgow. Adjudicators sit from time to time in Glasgow. The IAT sits mainly in London. The venue of these hearings is determined largely by questions of practical convenience, either the administrative convenience of the adjudicator or the IAT or the convenience of the claimant or his lawyers.
Since April 2005 the two tier system of appeals to adjudicators and the IAT has been replaced by a single tier body, the Asylum and Immigration Tribunal.
Previous decisions
Problems similar to those arising in the present case have come before the courts of England and Scotland on several occasions. The jurisprudence has developed and matured. In Rutherford v Lord Advocate 1931 SLT 405 a taxpayer living in Scotland was assessed to tax in respect of director's fees paid to him by a company carrying on business in Warwickshire. The assessment was confirmed by general commissioners for the county of Warwick. The tax not having been paid, execution was levied on the taxpayer's furniture in Scotland. The taxpayer applied to the Court of Session to set aside this diligence. Lord Fleming held the Court of Session could not set aside the determination of the commissioners. For that the taxpayer must resort to the English courts. But it was competent for the taxpayer to invoke the 'preventive jurisdiction' to stop the diligence of which he complained: p 408.
In the Forsyth litigation a Scottish taxpayer appealed against assessments to corporation tax and applied to a special commissioner for postponement of payment. The postponement applications were due to be heard in Glasgow, but for the convenience of the company's lawyers and at their behest the venue was changed to London. The applications were largely unsuccessful. The company then applied to the High Court for judicial review of the special commissioner's postponement decisions. Meanwhile the Crown had issued summonses in the Exchequer Court of the Court of Session seeking payment of the tax due. The Lord Ordinary (Wylie) granted decree in favour of the Crown in both proceedings. The basis of his decision seems to have been that the High Court had no jurisdiction in the matter. The decision of the special commissioner on a Scottish tax case, although sitting for administrative convenience in London, remained subject to the supervisory jurisdiction of the Scottish court. Confusion could result if more than one court had jurisdiction: Lord Advocate v R W Forsyth Ltd (1986) 61 TC 1.
The Crown then applied to the High Court to strike out the judicial review proceedings. Macpherson J was not persuaded the English court lacked jurisdiction. But he stayed the judicial review proceedings on the ground that as a matter of commonsense and convenience all activity in the case should be in Scotland: R v Commissioner for the Special Purposes of the Income Tax Acts, Ex p R W Forsyth Ltd [1987] 1 All ER 1035.
Sokha v Secretary of State for the Home Department 1992 SLT 1049 was an immigration case. The petitioner had entered and remained in England illegally. He was later detained in prison in England under the authority of an immigration officer. The petitioner then...
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