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Transfer of immigration judicial reviews to Upper Tribunal

Transfer of immigration judicial reviews to Upper Tribunal

It is finally almost upon us: the transfer of judicial review claims from the High Court to the Upper Tribunal will take place on 1 November 2013. In addition, applications for permission lodged after 9 September 2013, including those where permission has been refused on the papers and oral renewal is pending, will also be transferred.

Many thanks to ILPA and EIN for spotting the announcements.

Not all immigration judicial reviews are to be transferred. The Lord Chief Justice’s direction setting out which cases will be transferred excludes the following types of case, which will remain in the High Court if they involve any of the following:

  • 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

The Tribunal Procedure (Amendment No. 4) Rules 2013 (SI 2013/2067) have been laid. Minor changes to practice directions have been made. New forms are not yet available. It seems likely that the existing slightly confusing rules on fresh claim judicial reviews will continue to apply on choice of venue for lodging applications: either in the High Court leading to automatic transfer if the LCJ direction applies or in the Upper Tribunal.

As far as is known, Treasury Solicitors and Treasury Counsel will continue to be used by the Home Office and OISC advisers will not be authorised to appear in Upper Tribunal judicial reviews. Public funding and costs orders work in the same way in the Upper Tribunal as in the High Court. The main changes in the short term seem to be that a wig will make one look silly, the venue is less impressive and the judges are more junior in rank.

Fresh claim judicial reviews have been heard in the Upper Tribunal for some time now. Very few successful claims have been reported, I think, and tribunal policy is to report all judicial review cases.

Colin Yeo
Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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