Upper Tribunal (Immigration and asylum chamber), 2021-11-30, [2021] UKUT 320 (IAC) (R (on the application of T) v Secretary of State for the Home Department (Judicial review: damages claims))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge O’Callaghan |
| Status | Reported |
| Date | 30 November 2021 |
| Published date | 20 December 2021 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 15 November 2021 |
| Appeal Number | [2021] UKUT 320 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
R (on the application of T) v Secretary of State for the Home Department
(Judicial review: damages claims) [2021] UKUT 00320 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 15 November 2021 |
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|
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………………………………… |
Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE O’CALLAGHAN
Between
THE QUEEN
on the Application of
T
(ANONYMITY DIRECTION MADE)
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the applicant: Mr B. Bundock, instructed by Islington Law Centre (Migrant Law Project)
For the respondent: Mr B. Seifert, instructed by the Government Legal Department
(1) Once the public law issues in a judicial review claim have been resolved, section 25 of the Tribunals, Courts and Enforcement Act 2007 allows the Upper Tribunal to transfer an action for damages to a county court.
(2) The Immigration and Asylum Chamber of the Upper Tribunal is a specialist body, well-used to making decisions on the ambit of the ECHR. Accordingly, where the question whether the respondent has acted in such a way as to breach the human rights of an individual raises novel issues, the Upper Tribunal will, in general, be best-placed to determine them, even if the matter has become one of historic breach.
JUDGMENT
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The applicant in this judicial review sought to challenge the respondent’s failure to co-operate with the Italian authorities in respect of the applicant’s transfer to the United Kingdom under the provisions of the Dublin III Regulations. The respondent accepted responsibility for the applicant’s protection claim on 14 July 2020. The applicant subsequently arrived in the United Kingdom.
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Permission to bring judicial review proceedings was refused on the papers on 12 July 2021. At the oral renewal hearing on 20 September 2021, the Upper Tribunal was informed that the parties had reached agreement on all relevant issues, save for damages and costs. The applicant sought damages for what he contended was both a substantive and procedural breach of his Article 8 ECHR rights, which he had sustained as a result of the respondent’s delay in arranging his transfer under Dublin III from Italy to the United Kingdom. The grounds asserted that the European Court of Human Rights “has frequently awarded damages for procedural and/or substantive breaches of Article 8 where these cause delay in family reunification, or even where a procedural breach results in a mere loss of opportunity to end separation”. In this regard various cases were cited.
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The parties were agreed that, in the circumstances, so much of the challenge as concerned the applicant’s request for a declaration and mandatory order requiring the applicant’s transfer to the United Kingdom; and a declaration that the respondent is bound by her policy to accept transfers in so-called “expired cases” under Dublin III, should be withdrawn as academic.
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There also appeared to be agreement that so much of the applicant’s claim as concerns a declaration and damages in respect of alleged breaches of Article 8 ECHR should be transferred from the Upper Tribunal, either to the High Court or to the County Court.
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There was, however, no agreement concerning costs. The applicant contended that costs should be reserved and transferred with the claim. The respondent considered that there should be no Order as to costs.
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On 20 September 2021, Upper Tribunal Judge O’Callaghan decided there was merit in receiving submissions from the parties as to the power of the Upper Tribunal to transfer the outstanding issues, as just described, and the general principles to be applied, if such power exists. Mr Bundock, for the applicant, accordingly produced a written statement for use at the hearing on 15 November 2021. For the respondent, Mr Seifert produced written submissions on costs. Both addressed us orally on the questions of power and principles. We are grateful to them for their assistance.
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Mr Bundock submits, and Mr Seifert concurs, that the Upper Tribunal has power to transfer to the county court the claims for a declaration and damages. We agree, for the reasons which follow.
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Section 25 of the Tribunals, Courts and Enforcement Act 2007 (supplementary powers of Upper Tribunal) provides, so far as relevant:-
“(1) In relation to the matters mentioned in subsection (2), the Upper Tribunal -
(a) has, in England and Wales … the same powers, rights, privileges and authority as the High Court.
…
(2) The matters are -
(a) the attendance and examination of witnesses,
(b) the production and inspection of documents, and
(c) all other matters incidental to the Upper Tribunal’s functions.
(3) Subsection (1) shall not be taken -
…
(b) to be limited by anything in Tribunal Procedure Rules other than an express limitation.”
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In R (Singh) v The Secretary of State for the Home Department [2019] EWCA Civ 1014; [2019] Imm AR 1275, the Court of Appeal considered whether the Upper Tribunal had power to set aside a grant of permission to apply for judicial review, and to relist the application for a fresh hearing, upon realising that, through misunderstanding, Counsel for the respondent had not been present at the hearing of the renewed application for permission.
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Leggatt LJ held that such a power existed by reason of section 25 of the 2007 Act, since the High Court possesses an inherent power to set aside an Order made in circumstances where an interested party has not had a fair opportunity to be heard.
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In the course of his judgment, Leggatt LJ examined the scope of section 25:-
“18. I see no reason to give section 25 a restrictive interpretation. I agree with the following observations of Mr Martin Rodger QC, Deputy President of the Upper Tribunal (Lands Chamber) in William Hill Organization Ltd v Crossrail Ltd [2016] UKUT 275 (LC), para 59:
’Parliament was obviously aware of the powers of the High Court, both those which are inherent, and those specifically conferred by statute. Section 25 therefore seems to me to be intended to be read literally and applied generally, and to invest the Upper Tribunal with the powers of the High Court in relation to all matters incidental to its functions; the critical limitation in section 25(2)(c) is supplied by the reference to the functions of the Tribunal, and does not depend on the source of the power or the terms in which it has been conferred on the High Court. Parliament could obviously make explicit an intention that the Upper Tribunal was not to possess a particular power, but where it has not done so, and where no express limitation has been imposed by tribunal procedure rules as contemplated by section 25(3)(b), the Upper Tribunal must be taken to have the same powers as the High Court in relation to all matters incidental to its functions.’
19. Pursuant to sections 15 and 16 of the 2007 Act, one of the functions of the Upper Tribunal is to deal with applications for judicial review and, as an aspect of that function, to decide whether or not to grant permission to bring judicial review proceedings. Considering whether to set aside a decision to grant such permission taken in the absence of the respondent and to re-hear the application is a matter incidental to this function. Pursuant to section 25 of the Act, therefore, the Upper Tribunal has the same powers in dealing with the matter as would the High Court. It would be anomalous if the position were otherwise and if the Upper Tribunal, when exercising a judicial review jurisdiction similar to that of the High Court, lacked a power which the High Court has as an essential part of its procedural repertoire to manage its proceedings in a just and effective manner.”
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The High Court has power to transfer claims to the county court. Section 40 of the County Courts Act 1984 provides, so far as relevant:-
“40 Transfer of proceedings to county court.
(1) Where the High Court is satisfied that any proceedings before it are required by any provision of a kind mentioned in subsection (8) to be in the county court it shall -
(a) order the transfer of the proceedings to the county court; or
(b) if the court is satisfied that the person bringing the proceedings knew, or ought to have known, of that requirement, order that they be struck out.
(2) Subject to any such provision, the High Court may order the transfer of any proceedings before it to the county court.
(3) An order under this section may be made either on the motion of the High Court itself or on the application of any party to the proceedings.
…
(5) The transfer of any proceedings under this section shall not affect any right of appeal from the order directing the transfer.
…”
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We consider that, in a case of the present kind, transferring an action for damages brought within an immigration judicial review, once the public law issues have been resolved, is authorised by section 25. We agree with Mr Bundock’s submission that the need to case-manage the resolution of damages claims in this way is plainly “incidental” to the Upper Tribunal’s judicial review functions.
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To conclude otherwise would result in the Upper Tribunal’s...
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