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Judicial review in the Upper Tribunal

Since 17 October 2011, some immigration judicial reviews have been heard in the Upper Tribunal. Until now this was confined to asylum fresh claims and disputed age assessments.

From 1 November 2013 most new immigration judicial reviews are heard in the Upper Tribunal.

There are a few teething difficulties, though. And given that my daughter is currently teething, do not for a moment think I’m minimising the seriousness…

Forms

The N461 (or N463 in urgent cases) is used for applications for judicial review in the High Court. A newer form very closely based on the N461 was used for fresh claim applications made in the Upper Tribunal, the T480. It has been amended and is now entitled simply ‘Judicial Review Claim Form’ with a sub title of ‘In the Upper Tribunal Immigration and Asylum Chamber’. Similarly, the newish T series of forms has been amended to encompass other forms of immigration judicial review than just fresh claims:

  • T485 Statement under Upper Tribunal Rule 28A
  • T482 Fresh Claim Judicial Review – Acknowledgement of Service
  • T483 Fresh Claim Judicial Review – Application for Urgent Service
  • T484 Application Notice
  • T486 Notice of Change of Solicitor

These can all be found here.

How to lodge?

The biggest practical problem is the lack of direction on how to actually make an application. At a time of increasing numbers of anguished litigants in person this is an unforgivable, fundamental failure of access to justice.

The Upper Tribunal website simply says that the completed claim form should be ‘sent’ to the Upper Tribunal at Field House or one of the listed regional centres. No requirement to attend in person is mentioned, nor the need for a court seal, nor any indication of what will happen next or how the other side will magically become aware of the claim.

In fact the Upper Tribunal has its own seal and it seems that applications should be lodged in person at Field House in London in person. Have I mentioned that should be in person? In contrast to the website, the small print at the bottom of the T480 claim form itself says that

Completed forms and accompanying documents, together with a copy should be lodged with the Upper Tribunal, Immigration and Asylum Chamber, Field House, 15-25 Breams Building, London EC4A 1DZ.

There is no indication of whether it is possible to lodge in person at a regional centre. I’ve heard tales of people being turned away at the Royal Courts of Justice centre, I don’t know if the same is happening elsewhere.

At Field House itself this very professional looking notice has been posted up in the lobby:

This is all an entirely avoidable mess.

Rule 27 provides that where cases are transferred to the Upper Tribunal then the Court will notify the parties in writing and will give directions as to the future conduct of the proceedings.

Included and excluded immigration judicial reviews

The Lord Chief Justice has issued a new Practice Direction under section 18(6) of Tribunals, Courts and Enforcement Act 2007 to specify that the following types of case may be transferrable into the Upper Tribunal:

i. a decision made under the Immigration Acts … or any instrument having effect (whether wholly or partly) under an enactment within the Immigration Acts, or otherwise relating to leave to enter or remain in the united Kingdom outside the immigration rules; or
ii. a decision of the Immigration and Asylum Chamber of the First-tier Tribunal, from which no appeal lies to the Upper Tribunal

The following broad classes of case will continue to be heard in the High Court, however:

  • Challenges to validity of legislation including immigration rules and including applications for declarations of incompatibility under s.4 of the Human Rights Act 1998
  • Challenges to lawfulness of detention
  • Challenges regarding inclusion of sponsors on the register of sponsors
  • Nationality law and citizenship challenges
  • Welfare support challenges
  • Challenges to decisions of the Upper Tribunal or SIAC

There are some uncertainties. For example, it very much appears that cases that challenge an EU free movement or citizenship decision, whether under the Immigration (EEA) Regulations 2006 or not, fall outside the scope of transfer. They are not decisions made under the Immigration Acts nor do they relate to leave to enter or remain. The EEA regulations are made primarily under the European Communities Act 1972 and section 7 of the Immigration Act 1988 excludes EEA nationals from the requirement to hold leave if exercising Treaty rights.

I’m acting in a judicial review of inordinate delay in a Zambrano situation and we’ve opted to lodge in the High Court for this reason.

I’m also acting in a case that involves an excluded type of challenge to a sponsorship licence decision. It was lodged before November and to my surprise the Upper Tribunal has just granted permission. My surprise isn’t at the grant of permission (it is a very strong case, of course) but that the case has been transferred despite the practice direction. It looks like the permission grant is ineffective and the case will need to be sent back to the High Court.

Payment of fees and striking out of cases

The fees for judicial review in the Upper Tribunal are specified in the Upper Tribunal (Immigration and Asylum Chamber) (Judicial Review) (England and Wales) Fees Order 2011. The fees are the same as for judicial review in the High Court and are as follows:

  • For permission to apply: £60
  • If permission is granted: £215

Renewal / reconsideration

‘Renewal’ is referred to as ‘reconsideration’ in the Upper Tribunal rules.

Issues of decision on permission, applications for reconsideration for permission or summary dismissal at a hearing are dealt with by the Rule 30.

Rule 30(1) states that the Upper Tribunal must send written reasons for permission (30(1)(a)) or refusal of the application (30(1)(b)) to the applicant and any other party that provided an acknowledgment of service to the Upper Tribunal or to any interested party.

Rule 30 (4) states that in cases where permission is refused or limited permission is granted (rule 30 (3)(a)) the applicant has an option of applying for reconsideration of the decision at a hearing.

A ‘totally without merit’ process preventing renewal of an application is included in the rules via a new rule 30(4)(A):

(4A) Where the Upper Tribunal refuses permission to bring immigration judicial review proceedings and considers the application to be totally without merit, it shall record that fact in its decision notice and, in those circumstances, the applicant may not request the decision to be reconsidered at a hearing.

Rule 30(5) provides 9 days for an application for reconsideration of permission in an immigration judicial review case, beginning with the date on which the notice of written decision was sent by the tribunal.

Representation

Representation before the Upper Tribunal in cases of fresh claim application will continue to be restricted to lawyers who have higher courts rights of audience, as it is currently in the Administrative Court.

The issue of representations is dealt with by Rule 11 of the amended rules

This amendment ensures involvement of Treasury Solicitors but prevents OISC advisers from conducting judicial review cases in the UT. Further, the OISC has confirmed that it has no plans to permit OISC advisers to conduct judicial review work.

What are your experiences so far? Does this post match with what you are finding? Can anyone report on success or otherwise lodging outside London? Leave a comment below.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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