Majead, R (on the application of) v Secretary of State for the Home Department

As a matter of general practice, judicial review of an Immigration Appeal Tribunal decision arising from an adjudicator’s determination in Scotland should be sought in the Court of Session. The tribunal’s physical location in London does not displace the constitutional and statutory allocation of responsibility to the Scottish courts.

The High Court’s supervisory jurisdiction was not conclusively excluded. It might exceptionally be exercised in a genuine emergency. The appropriate forum is determined by constitutional principle and the structure of the appellate system, rather than solely by private convenience or expense.

The claimant, an Iraqi citizen of Kurdish origin, sought asylum after arriving in England. He was dispersed to Scotland, where an immigration adjudicator dismissed his appeal against the refusal of asylum and the issue of removal directions. The Immigration Appeal Tribunal, operating from London, refused permission to appeal.

Jackson J refused permission to apply for judicial review because the Administrative Court lacked jurisdiction over a matter arising from an adjudicator’s determination in Scotland. The claimant appealed. The Court of Appeal considered whether the English courts possessed supervisory jurisdiction and, if so, whether that jurisdiction should be exercised.

1. Appeal dismissed. Brooke LJ, with whom Hale LJ and Wilson J agreed, held that applications for judicial review of Immigration Appeal Tribunal decisions arising from adjudicators sitting in Scotland should, as a matter of general practice, be made to the Court of Session.

2. The court did not finally decide that the High Court lacked all supervisory jurisdiction. A genuine emergency might justify an English court exercising jurisdiction, but such a case would have to be very exceptional. That possibility did not justify exercising jurisdiction in an ordinary case of this kind.

3. The relevant allocation was supported by the statutory structure. Paragraph 23(3) of Schedule 4 to the Immigration and Asylum Act 1999 directed substantive appeals concerning adjudicators in Scotland to the Court of Session. Section 101(2) of the Nationality Immigration and Asylum Act 2002 similarly provided for review of the Tribunal’s refusal of permission by the High Court or, in Scotland, the Court of Session.

4. The fact that the Immigration Appeal Tribunal was a national tribunal and dealt with Scottish appeals from premises in London did not make the English courts the appropriate supervisory forum. Parliament had indicated that the Scottish courts should have ultimate responsibility for appeals originating before adjudicators in Scotland. The court applied the general reasoning in Lord Advocate v RW Forsyth Ltd, 61 TC 1, concerning the Court of Session’s pre-eminent supervisory jurisdiction over Scottish proceedings.

5. The private-law forum principles stated in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 and relied upon by analogy from Lubbe v Cape Plc [2000] 1 WLR 1545 did not determine the issue. The allocation of supervisory jurisdiction within the United Kingdom raised constitutional questions and could not be resolved solely by comparing convenience, expense or the parties’ connections with each jurisdiction.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2003] EWCA Civ 615. Permission to appeal to the House of Lords was refused.
2. Administrative Court: Jackson J refused permission to apply for judicial review on 8 October 2002, holding that the court had no jurisdiction over the Tribunal decision arising from an adjudicator’s determination in Scotland.
3. Immigration Appeal Tribunal: On 22 March 2002 the Tribunal refused permission to appeal from the adjudicator’s determination.
4. Immigration adjudicator: On 7 February 2002 an adjudicator sitting in Glasgow dismissed the claimant’s appeal against the refusal of asylum and the decision to issue removal directions.