Wankuama, R (on the application of) v Secretary of State for the Home Deparment

An application for judicial review should not be used to obtain declarations about how a specialist tribunal may decide a future appeal where the statutory duties are clear and the concern is speculative. Under Tribunals, Courts and Enforcement Act 2007, proceedings falling within a Lord Chief Justice’s direction must be transferred to the High Court once they no longer concern a decision within the Upper Tribunal’s allocated jurisdiction. Where human rights grounds are raised in an immigration appeal, the First-tier Tribunal must determine them under the statutory appeal provisions. Its decision remains subject to challenge for error of law.

The claimant initially challenged the Secretary of State’s refusal to treat further submissions as a fresh asylum or human rights claim. Proceedings were commenced in the Upper Tribunal under a direction made pursuant to section 18(6) of the Tribunals, Courts and Enforcement Act 2007.

After permission was granted, the Secretary of State withdrew the challenged decision and made a new refusal carrying a right of appeal. The claimant amended his grounds and sought only a declaration concerning the approach to be taken by the First-tier Tribunal to his forthcoming appeal, particularly in light of new immigration rules and HC194. The issues were whether the proceedings belonged in the High Court and whether the proposed declaration was appropriate.

1. Jurisdiction. When commenced, the claim fell within the class specified by the Lord Chief Justice’s direction under section 18(6) of the Tribunals, Courts and Enforcement Act 2007. Once the claimant ceased challenging the fresh-claim decision, the application no longer satisfied section 18(2). It therefore required transfer to the High Court under section 18(3).
2. Statutory duties on appeal. The statutory structure of immigration appeals had not changed. Section 84(1)(c) and (g) of the Nationality, Immigration and Asylum Act 2002 permitted appeals on human rights grounds as well as under the Immigration Rules. Section 86(2) required the First-tier Tribunal to determine any matter raised as a ground of appeal. If human rights grounds were raised, the Tribunal was bound to determine them.
3. Declaration refused. The proposed declaration was unnecessary and based on speculation about submissions that might be made by the Secretary of State. The First-tier Tribunal was a specialist tribunal and could be assumed to perform its functions properly. Any submission made would have to be assessed by that Tribunal, with a further appeal available on an error of law. MF (Article 8 – new rules) 2012 UKUT 00393 (IAC) supported the conclusion that the feared approach was unlikely.
4. The claim for judicial review was dismissed.

The proceedings were initially commenced in the Upper Tribunal. Following withdrawal of the challenged decision and amendment of the grounds, they were transferred to the High Court by consent. The High Court dismissed the judicial review claim.