Tehrani v Secretary of State for the Home Department (Scotland)

The House of Lords held that adjudicators under the Immigration and Asylum Act 1999 and the Immigration Appeal Tribunal are United Kingdom tribunals exercising a nationwide jurisdiction and that both the Court of Session and the High Court may have concurrent common-law supervisory jurisdiction to review their decisions. The court endorsed the Spiliada principle of appropriateness (forum non conveniens) as the guiding rule for deciding which domestic superior court should exercise concurrent supervisory jurisdiction, and stated that the statutory identification of the "appropriate appeal court" in paragraph 23 of Schedule 4 to the 1999 Act (determined by where the adjudicator made his determination) is a persuasive guide to the appropriate forum for judicial review of decisions of adjudicators and the IAT.

Applying those principles, the House allowed the appellant's appeal because exceptional procedural facts (the petitioner, resident in Scotland, had lost the right to apply to the English court within the three-month time limit because proceedings were initiated in Scotland in reliance on established practice) made the Court of Session the appropriate forum in that case.

This appeal concerned whether the Court of Session had jurisdiction to entertain a petition for judicial review of (a) an adjudicator's determination dismissing an asylum appeal and (b) the Immigration Appeal Tribunal's refusal of leave to appeal, where the adjudicator's hearing and the IAT's decision were made in England but the applicant was resident in Scotland.

Background and parties:

• The appellant, an Iranian national, claimed asylum in the United Kingdom and was dispersed to Glasgow where he lived continuously after April 2001.
• An adjudicator dismissed his appeal (determination dated 21 February 2002, heard in Durham) and the IAT refused leave to appeal (22 March 2002, sitting in London).
• The appellant petitioned the Court of Session for judicial review in August 2002. The respondent pleaded no jurisdiction. The Lord Ordinary sustained that plea (2003 SLT 808) and the Extra Division refused a reclaiming motion (2004 SLT 461). The appellant appealed to the House of Lords.

Nature of the claim and relief sought: The appellant sought judicial review (petition for reduction) of the adjudicator's determination and the IAT's refusal of leave; in substance the principal challenge was to the IAT's refusal.

Issues framed:

• Whether the Court of Session has jurisdiction at common law (or under the Civil Jurisdiction and Judgments Act 1982) to review decisions of adjudicators and the IAT made in England but affecting a person resident in Scotland.
• If jurisdiction exists in both Scotland and England, which forum is the appropriate one to exercise supervisory jurisdiction.
• Whether the appellant should be deprived of a remedy by reason of the English three-month time limit when proceedings were commenced in Scotland in reliance on established practice and before the respondent challenged jurisdiction.

Court's reasoning (concise):

• The 1999 Act establishes adjudicators and the IAT as United Kingdom tribunals exercising jurisdiction throughout the United Kingdom; therefore the place where they sit for convenience does not by itself determine which domestic superior court has supervisory jurisdiction.
• Proceedings of this kind (appeals from or review of tribunal decisions) are excluded from Schedule 8 of the 1982 Act and remain governed by statutory rules where provided or by the common law; the 1982 Act does not displace the common-law supervisory jurisdiction in this domain.
• At common law the Court of Session may exercise supervisory jurisdiction where there is a sufficient connection with Scotland (e.g. petitioner resident in Scotland, harmful effects felt in Scotland and the tribunal exercising United Kingdom jurisdiction); this produces concurrent jurisdiction with the High Court where the tribunal sat in England.
• Where both courts have jurisdiction, the Spiliada principle of appropriateness should normally be applied; Parliament's indication in paragraph 23 of Schedule 4 to the 1999 Act (identifying the "appropriate appeal court" by reference to the place where the adjudicator made his determination) is a sensible statutory touchstone for the ordinary case.
• However, exceptional circumstances may make it unconscionable to refuse to allow a petitioner to proceed in the forum in which he reasonably commenced proceedings; the appellant in this case had relied on established practice, and by the time jurisdiction was challenged the English time limit had expired, making the present an exceptional case.

Result: The House allowed the appeal and directed that the Court of Session should exercise jurisdiction in this case; the petition was to be remitted to the Lord Ordinary to proceed.

Appeal allowed. The House held that adjudicators and the Immigration Appeal Tribunal are United Kingdom tribunals and that the superior courts of the constituent parts of the United Kingdom have concurrent common-law supervisory jurisdiction to review their decisions. The Spiliada principle of appropriateness should normally determine which domestic superior court will exercise jurisdiction, with paragraph 23 of Schedule 4 to the Immigration and Asylum Act 1999 serving as a persuasive statutory touchstone. Given exceptional procedural facts in this case (reliance on established practice and the expiry of the English time limit), it was appropriate to allow the Court of Session to exercise jurisdiction and to remit the petition to the Lord Ordinary.

Petition for judicial review lodged in the Court of Session (August 2002). Lord Ordinary (Philip) sustained respondent's plea to the jurisdiction and dismissed the petition: 2003 SLT 808. Extra Division refused the reclaiming motion: 2004 SLT 461. Appeal to the House of Lords allowed: [2006] UKHL 47.