Tehrani v Secretary of State for the Home Department

The Court of Session may review a decision made in England by a tribunal exercising United Kingdom-wide statutory jurisdiction where the proceedings have a sufficient connection with Scotland. The tribunal’s physical location does not determine jurisdiction.

Where the Court of Session and the High Court have concurrent jurisdiction, the statutory allocation of appeals according to where the adjudicator decided the case normally identifies the appropriate forum for judicial review. That guide is not inflexible. The interests of the parties and the ends of justice may require the other court to act in exceptional circumstances.

An Iranian asylum seeker was dispersed to Glasgow but his appeal was dismissed by an adjudicator sitting in Durham. The Immigration Appeal Tribunal, sitting in London, refused permission for a further appeal. He petitioned the Court of Session for judicial review of both decisions.

The Lord Ordinary dismissed the petition for want of jurisdiction: 2003 SLT 808. The Extra Division refused the reclaiming motion: 2004 SLT 461. The sole issue before the House was whether the Court of Session had jurisdiction to review decisions made in England by tribunals exercising powers under United Kingdom-wide immigration legislation and, if so, whether it should exercise that jurisdiction.

1. The appeal was allowed unanimously. The interlocutors of the Lord Ordinary and the Extra Division were recalled, the Secretary of State’s plea of no jurisdiction was repelled, and the petition was remitted to the Lord Ordinary to proceed as accords.

2. Per Lord Nicholls, the adjudicators and Immigration Appeal Tribunal were United Kingdom tribunals exercising powers under nationwide legislation. Their location on a particular occasion was largely a matter of convenience and could not rigidly determine the territorial extent of judicial review. The Court of Session and High Court could therefore possess concurrent supervisory jurisdiction.

3. Lord Hope held that the applicant’s residence in Scotland, the prospect that the harmful consequences would be felt there, and the United Kingdom-wide character of the statutory jurisdiction together supplied a sufficient connection with Scotland. Lord Rodger likewise held that a person in Scotland whose interests were materially affected by a United Kingdom tribunal’s decision could legitimately seek the assistance of the Court of Session, provided its decree would be effective. He rejected the broader proposition that every United Kingdom court necessarily had concurrent jurisdiction in every case.

4. Per Lord Nicholls, Lord Hope and Lord Rodger, the allocation of statutory appeals under paragraph 23(3) of Schedule 4 to the Immigration and Asylum Act 1999 supplied the normal guide to the appropriate forum. Ordinarily, judicial review should take place in the jurisdiction where the adjudicator made the initial determination. This was an application by analogy of the principle of appropriateness in Spiliada, rather than an inflexible territorial rule.

5. The present case was exceptional. The applicant had followed the established Scottish practice then accepted by the Secretary of State. By the time jurisdiction was challenged, the ordinary three-month period for commencing English judicial-review proceedings had expired. It would be unjust to leave him without an effective remedy. The Court of Session should therefore exercise its jurisdiction notwithstanding that the adjudicator sat in England.

6. Per Lord Hope and Lord Rodger, Part III of the Civil Jurisdiction and Judgments Act 1982 did not confer jurisdiction. Paragraph 12 of Schedule 9 excludes appeals from, and reviews of, tribunal decisions from Schedule 8. In the absence of a statutory judicial-review rule, jurisdiction was governed by the common law.

1. House of Lords: Appeal allowed unanimously. The lower interlocutors were recalled, the plea of no jurisdiction was repelled and the petition was remitted to the Lord Ordinary: [2006] UKHL 47.
2. Extra Division of the Inner House: Reclaiming motion refused on 27 April 2004: 2004 SLT 461.
3. Lord Ordinary: The Secretary of State’s plea to jurisdiction was sustained and the petition dismissed on 3 April 2003: 2003 SLT 808.