UZ (Pakistan) v Secretary of State for the Home Department

For transfer of a judicial review application to the Upper Tribunal, the relevant question is the decision which the application actually calls into question, determined from the claim form read as a whole. A claim directed solely to rejection under a legacy policy does not fall within a transfer direction concerned with decisions not to treat further submissions as an asylum or human rights claim because they are not significantly different from earlier material. The additional category concerning removal decisions depends on the application first falling within that principal class. Where those requirements are not met, the Upper Tribunal has no jurisdiction to determine the permission application. The matter must be dealt with in the Administrative Court.

The appellant’s earlier asylum appeal had been dismissed and his appeal rights were exhausted. After further representations concerning the legacy scheme, the Secretary of State issued decision letters in July and October 2012. The appellant commenced judicial review proceedings challenging rejection of his legacy policy claim.

The Administrative Court transferred the proceedings to the Upper Tribunal under the then applicable transfer direction. The Upper Tribunal accepted jurisdiction and refused permission. The appeal concerned whether the claim challenged a decision within the statutory transfer class, or instead challenged only the rejection of the legacy policy claim.

Appeal allowed. The Court of Appeal held that the Upper Tribunal had no jurisdiction to refuse permission on the judicial review claim. The permission application was remitted to the Administrative Court for an expedited oral hearing before a High Court Judge. The respondent was ordered to pay the appellant’s costs.

1. Section 15 of the Tribunals, Courts and Enforcement Act 2007 conferred judicial review jurisdiction on the Upper Tribunal in specified circumstances. The applicable transfer provision was section 31A of the Senior Courts Act 1981, as amended.
2. The transfer direction focused on the decision challenged by the application. The claim form and its detailed grounds had to be read as a whole. Although the decision letters addressed further representations under paragraph 353 of the Immigration Rules, the claim form did not challenge that decision. Its entire focus was the asserted legacy policy and the alleged entitlement to indefinite or discretionary leave.
3. The claim therefore did not fall within paragraph 1 of the transfer direction. Paragraph 2 was expressly dependent on an application first falling within paragraph 1. Consequently, statutory Condition 3 and Condition 5 were not satisfied.
4. The court accepted that a legacy policy decision had in fact been made, contrary to the Upper Tribunal Judge’s assessment. That did not establish Upper Tribunal jurisdiction, because it was the nature of the decision challenged by the claim that controlled.
5. The court left open whether paragraph 2(i), referring to a decision to remove, had a broad meaning or a formal immigration-law meaning. Paragraph 395C of the Immigration Rules and the reference to a prior decision to remove under section 10 provided context, but the issue did not fall for decision.

• Court of Appeal (Civil Division): The appeal was allowed and the permission application was remitted to the Administrative Court for an expedited oral hearing. [2014] EWCA Civ 1319
• Upper Tribunal (Immigration and Asylum Chamber): Accepted jurisdiction and refused permission on the papers after an oral hearing on the jurisdiction issue.
• Administrative Court: Transferred the judicial review proceedings to the Upper Tribunal by order dated 7 December 2012 under the then applicable Lord Chief Justice’s transfer direction.