The Government is amending the Crime and Courts Bill to allow transfer of any or all immigration, asylum and nationality judicial review cases from the High Court to the Upper Tribunal. This seems to have pretty much universal support from Government, Opposition, the High Court and the Upper Tribunal. It is therefore very likely now to become law.
Immigration judicial reviews form a very large part of the workload of the High Court so this reform will have a significant impact on listings and the general workload of High Court judges. The proposed reform will not deal with the causes of the high number of judicial reviews, though: frequent illegality on the part of the immigration authorities. It will simply shunt the cases a little lower down the judicial pecking order.
It is unclear at this stage what types of immigration judicial review will be transferred. All that the responsible Minister, Lord McNally, would say at this juncture was as follows:
The further categories of cases that would be transferred to the Upper Tribunal would have to be set out in a direction, or directions, made by the Lord Chief Justice with the agreement of the Lord Chancellor under the provisions in the Constitutional Reform Act 2005. We envisage that the transfers will take place in a staged fashion to increase slowly the types of judicial review dealt with by the Upper Tribunal.
It could be that all immigration cases will ultimately be transferred, as seems to be implied, or it may well be that some categories of case are retained in the High Court, such as unlawful detention and damages claims. It seems to be the way of the world that further information will emerge but in the form of correspondence and assurances to Members of Parliament (i.e. the fantastic, amazing, indefatigable Lord Avebury). Much of this will be available to ILPA members only.